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EXECUTION COPY
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STRUCTURED ASSET SECURITIES CORPORATION,
as Depositor
and
ORIX REAL ESTATE CAPITAL MARKETS, LLC,
as Master Servicer and Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of September 11, 2000
------------------------------
$999,060,409
LB-UBS Commercial Mortgage Trust 2000-C4
Commercial Mortgage Pass-Through Certificates,
Series 2000-C4
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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............................................................58
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans............................................59
SECTION 2.02. Acceptance of Trust Fund by Trustee........................................................61
SECTION 2.03. Repurchase of Mortgage Loans for Document Defects and Breaches of
Representations and Warranties; the Special Reserve Account................................62
SECTION 2.04. Representations, Warranties and Covenants of the Depositor.................................67
SECTION 2.05. Execution, Authentication and Delivery of Class R-I Certificates; Creation of
REMIC I Regular Interests..................................................................89
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee.................90
SECTION 2.07. Execution, Authentication and Delivery of Class R-II Certificates; Creation of
REMIC II Regular Interests.................................................................90
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee...............90
SECTION 2.09. Execution, Authentication and Delivery of REMIC III Certificates...........................90
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.......................................................92
SECTION 3.02. Collection of Loan Payments................................................................93
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve
Accounts...................................................................................94
SECTION 3.04. Custodial Account, Defeasance Deposit Account, Collection Account, Interest
Reserve Account and Excess Liquidation Proceeds Account....................................96
SECTION 3.05. Permitted Withdrawals From the Custodial Account, the Collection Account, the
Interest Reserve Account and the Excess Liquidation Proceeds Account.......................99
SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve Accounts, the
Defeasance Deposit Account, the Custodial Account, the Collection Account, the
Interest Reserve Account and the REO Account..............................................103
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SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage.............105
SECTION 3.08. Enforcement of Alienation Clauses.........................................................108
SECTION 3.09. Realization Upon Defaulted Loans; Required Appraisals; Appraisal Reduction
Calculation...............................................................................111
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files.............................115
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain Matters Regarding Servicing
Advances..................................................................................116
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain
Reports...................................................................................120
SECTION 3.13. Annual Statement as to Compliance.........................................................123
SECTION 3.14. Reports by Independent Public Accountants.................................................123
SECTION 3.15. Access to Certain Information.............................................................124
SECTION 3.16. Title to REO Property; REO Account........................................................125
SECTION 3.17. Management of REO Property................................................................126
SECTION 3.18. Sale of Mortgage Loans and REO Properties.................................................129
SECTION 3.19. Additional Obligations of the Master Servicer; the Special Servicer's Right to
Request that the Master Servicer Reimburse it for Servicing Advances; the
Special Servicer's Right to Request the Master Servicer to Make Servicing
Advances..................................................................................132
SECTION 3.20. Modifications, Waivers, Amendments and Consents...........................................133
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record
Keeping...................................................................................138
SECTION 3.22. Sub-Servicing Agreements..................................................................140
SECTION 3.23. Representations and Warranties of the Master Servicer and the Special Servicer............142
SECTION 3.24. Credit Tenant Leases......................................................................143
SECTION 3.25. Application of Default Charges............................................................144
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.............................................................................146
SECTION 4.02. Statements to Certificateholders; CMSA Loan Periodic Update File..........................155
SECTION 4.03. P&I Advances..............................................................................162
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund...................................164
SECTION 4.05. Calculations..............................................................................165
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates..........................................................................166
SECTION 5.02. Registration of Transfer and Exchange of Certificates.....................................166
SECTION 5.03. Book-Entry Certificates...................................................................173
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SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.........................................174
SECTION 5.05. Persons Deemed Owners.....................................................................174
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..............................176
SECTION 6.02. Merger, Consolidation or Conversion of Depositor, Master Servicer or Special
Servicer..................................................................................176
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer................176
SECTION 6.04. Resignation of Master Servicer and the Special Servicer...................................177
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master Servicer and the Special
Servicer..................................................................................178
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee.................178
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer.................179
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer.................179
SECTION 6.09. Designation of Special Servicer and Controlling Class Representative by the
Controlling Class.........................................................................179
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate.............................180
SECTION 6.11. Certain Rights and Powers of the Controlling Class Representative.........................181
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.........................................................................184
SECTION 7.02. Trustee to Act; Appointment of Successor..................................................188
SECTION 7.03. Notification to Certificateholders........................................................189
SECTION 7.04. Waiver of Events of Default...............................................................189
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default......................................189
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.........................................................................191
SECTION 8.02. Certain Matters Affecting Trustee.........................................................192
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of Certificates
or Mortgage Loans.........................................................................193
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.............................................193
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SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee...........................193
SECTION 8.06. Eligibility Requirements for Trustee......................................................194
SECTION 8.07. Resignation and Removal of Trustee........................................................195
SECTION 8.08. Successor Trustee.........................................................................196
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent.......................................196
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.............................................197
SECTION 8.11. Appointment of Custodians.................................................................198
SECTION 8.12. Appointment of Authenticating Agents......................................................198
SECTION 8.13. Appointment of Tax Administrators.........................................................199
SECTION 8.14. Access to Certain Information.............................................................200
SECTION 8.15. Reports to the Securities and Exchange Commission and Related Reports.....................201
SECTION 8.16. Representations and Warranties of Trustee.................................................204
SECTION 8.17. The Fiscal Agent..........................................................................205
SECTION 8.18. Representations and Warranties of Fiscal Agent............................................206
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans..........................208
SECTION 9.02. Additional Termination Requirements.......................................................215
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration......................................................................216
SECTION 10.02. Grantor Trust Administration..............................................................219
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.................................................................................221
SECTION 11.02. Recordation of Agreement; Counterparts....................................................222
SECTION 11.03. Limitation on Rights of Certificateholders................................................223
SECTION 11.04. Governing Law.............................................................................223
SECTION 11.05. Notices...................................................................................223
SECTION 11.06. Severability of Provisions................................................................224
SECTION 11.07. Grant of a Security Interest..............................................................224
SECTION 11.08. Streit Act................................................................................225
SECTION 11.09. Successors and Assigns; Beneficiaries.....................................................225
SECTION 11.10. Article and Section Headings..............................................................226
SECTION 11.11. Notices to Rating Agencies and Controlling Class Representative...........................226
SECTION 11.12. Global Opinions...........................................................................227
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SECTION 11.13. Complete Agreement........................................................................227
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SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
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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
F-2E Form of Regulation S Certificate
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
M Form of CMSA Property File
N Form of CMSA Financial File
O Form of CMSA Loan Set-up File
P Form of Comparative Financial Status Report
Q Form of REO Status Report
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R Form of Servicer Watch List
S Form of Delinquent Loan Status Report
T Form of Historical Loan Modification Report
U Form of Historical Liquidation Report
V Form of NOI Adjustment Worksheet
W Form of Operating Statement Analysis Report
X Form of Loan Payoff Notification Report
Y-1 Form of Information Request/Investor Certification for Website Access from Certificate Owner
Y-2 Form of Information Request/Investor Certification for Website Access from Prospective Investor
Z Depositor's Organizational Documents
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This Pooling and Servicing Agreement (this "Agreement") is
dated and effective as of September 11, 2000, among STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor, ORIX REAL ESTATE CAPITAL MARKETS, LLC, as Master
Servicer and 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 Loans after their respective
Anticipated Repayment Dates) and certain other related assets subject to this
Agreement (exclusive of any Recording/Title Policy Omission Cash Deposits and/or
Recording/Title Policy Omission Credits) 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.
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 Distribution Date immediately following the
third anniversary of the end of the remaining amortization term (as determined
as of the Closing Date) of the related Mortgage Loan. 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.
Initial
REMIC II Uncertificated
Designation Remittance Rate Principal Balance
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A-1 Variable (1) $170,000,000
A-2 Variable (1) $619,257,000
B Variable (1) $ 42,460,000
C Variable (1) $ 39,963,000
D Variable (1) $ 12,488,000
E Variable (1) $ 7,493,000
F Variable (1) $ 17,483,000
G Variable (1) $ 12,489,000
H Variable (1) $ 22,479,000
J Variable (1) $ 12,488,000
K Variable (1) $ 7,493,000
L Variable (1) $ 7,493,000
M Variable (1) $ 9,990,000
N Variable (1) $ 4,996,000
P Variable (1) $ 12,488,409
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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.
Initial
Class Class
Designation Pass-Though Rate Principal Balance
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Class A-1 7.18% per annum $170,000,000
Class A-2 7.37% per annum $619,257,000
Class B 7.48% per annum $ 42,460,000
Class C 7.61% per annum $ 39,963,000
Class D 7.70% per annum $ 12,488,000
Class E 7.97% per annum $ 7,493,000
Class F 8.07% per annum $ 17,483,000
Class G 8.15% per annum $ 12,489,000
Class X Variable(1) (2)
Class H 6.89% per annum $ 22,479,000
Class J 6.89% per annum $ 12,488,000
Class K 6.89% per annum $ 7,493,000
Class L 6.89% per annum $ 7,493,000
Class M 6.89% per annum $ 9,990,000
Class N 6.89% per annum $ 4,996,000
Class P 6.89% per annum $ 12,488,409
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(1) Calculated in accordance with the definition of "Pass-Through Rate".
(2) 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. The aggregate of such Component Notional Amounts shall be deemed to be
the Class Notional Amount of the Class X Certificates.
As provided herein, the Trustee shall take all actions
necessary to ensure that the portion of the Trust Fund consisting of the Grantor
Trust Assets maintains its status as a Grantor Trust under the Code.
The aggregate Cut-off Date Balance of the Mortgage Loans will
be $999,060,409. The initial aggregate Uncertificated Principal Balance of the
REMIC I Regular Interests, the initial aggregate
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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
$999,060,409.
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" shall mean the accrual of interest calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its successor in
interest.
"Accrued Certificate Interest" shall mean 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" shall mean 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" shall mean, 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 shall be 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" shall mean 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" shall have the meaning assigned
thereto in Section 4.02(a).
"Additional Interest" shall mean, 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 and, if so provided in
the related loan documents, compounded at the related Mortgage 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). For purposes of
this Agreement, Additional Interest on an ARD Loan or any successor REO Loan
shall be deemed not to constitute principal or any portion thereof and shall not
be added to the unpaid principal balance or Stated Principal Balance of such ARD
Loan or any successor REO Loan, notwithstanding that the terms of the related
loan documents so permit. To the extent that any Additional Interest is not paid
on a current basis, it shall,
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for purposes of this Agreement, be deemed to be deferred interest (regardless of
whether it is added to principal outstanding with respect to the related ARD
Loan in accordance with the related loan documents).
"Additional Interest Rate" shall mean, 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" shall mean, with respect to any Credit
Tenant Lease, any termination or abatement rights of the related Credit Tenant
arising from a Mortgagor's default as landlord under such Credit Tenant Lease in
performing certain obligations, including environmental remediation of
conditions not caused by the Credit Tenant, enforcement of restrictive covenants
affecting other property owned by such Mortgagor, compliance with laws affecting
the related Mortgaged Property or common areas relating to such Mortgaged
Property.
"Additional Trust Fund Expense" shall mean 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" shall mean, 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
as of the Closing Date (without regard to any modifications, extensions, waivers
or amendments of such Mortgage Loan subsequent to the Closing Date), 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 the subject Interest Accrual Period begins
during (i) December of 2000 or December of any year thereafter that does not
immediately precede a leap year or (ii) January of 2001 or January of any year
thereafter, then the amount calculated with respect to such Mortgage Loan (or
successor REO Loan) for such Interest Accrual Period 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 the subject
Interest Accrual Period begins during February of 2001 or February of any year
thereafter, then the amount calculated with respect to such Mortgage Loan (or
successor REO Loan) for such Interest Accrual Period 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" shall mean, with respect to each
Mortgage Loan, as specified in the Mortgage Loan Schedule, the sum of the
related Master Servicing Fee Rate and the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
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"Adverse Grantor Trust Event shall mean 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" shall mean, with respect to any Class
of Certificates, 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 by either Rating Agency.
"Adverse REMIC Event" shall mean, 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" shall mean, 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" shall mean this Pooling and Servicing Agreement,
together with all amendments hereof and supplements hereto.
"Annual Accountants' Report" shall have the meaning assigned
thereto in Section 3.14
"Annual Performance Certification" shall have the meaning
assigned thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, 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" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated as of each Determination Date for
so long as the subject Mortgage Loan (or any successor REO Loan) constitutes a
Required Appraisal Loan, beginning with the Determination Date immediately
following the later of the date on which the subject Mortgage Loan became a
Required Appraisal Loan and the date on which the applicable Required Appraisal
was obtained) equal to the excess, if any, of: (a) the sum of, without
duplication, (i) the Stated Principal Balance of 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
(exclusive of any portion thereof that represents Additional Interest and/or
Default Interest), (iii) all accrued and unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of such Required Appraisal Loan,
(iv) all related unreimbursed Advances made by or on behalf of (plus all accrued
interest on such Advances payable to) the Master Servicer, the Special Servicer,
the Trustee and/or the Fiscal Agent with respect to such Required Appraisal
Loan, (v) any other unpaid Additional Trust Fund Expenses in respect of such
Required Appraisal Loan, and (vi) all currently due and unpaid real estate taxes
and assessments, insurance premiums and, if applicable, ground rents, and any
unfunded improvement or other applicable reserves, in respect of the
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related Mortgaged Property (in each case, net of any amounts escrowed for such
items); over (b) the Required Appraisal Value.
Notwithstanding the foregoing, if (i) any Mortgage Loan
becomes a Required Appraisal Loan, (ii) either (A) no Required Appraisal or
update thereof, has been obtained or conducted, as applicable in accordance with
Section 3.09(a), with respect to the related Mortgaged Property during the
12-month period prior to the date such Mortgage Loan became a Required Appraisal
Loan or (B) there shall have occurred since the date of the most recent Required
Appraisal or update thereof a material change in the circumstances surrounding
the related Mortgaged Property that would, in the Special Servicer's judgement,
materially affect the value of the related Mortgaged Property, and (iii) no new
Required Appraisal is obtained or conducted, as applicable in accordance with
Section 3.09(a), within 60 days after such Mortgage Loan became a Required
Appraisal Loan, then (x) until such new Required Appraisal is obtained or
conducted, as applicable in accordance with Section 3.09(a), the Appraisal
Reduction Amount shall equal 25% of the Stated Principal Balance of such
Required Appraisal Loan, and (y) upon receipt or performance, as applicable in
accordance with Section 3.09(a), of such Required Appraisal or update thereof by
the Special Servicer, the Appraisal Reduction Amount for such Required Appraisal
Loan shall be recalculated in accordance with the preceding sentence of this
definition. For purposes of this definition, each Required Appraisal Loan that
is part of a Cross-Collateralized Group shall be treated separately for the
purposes of calculating any Appraisal Reduction Amount.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or REO Property, the appraised value thereof based upon the most recent
appraisal or update thereof prepared by an Independent Appraiser 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, either (a) the most recent appraisal or update thereof that is
contained in the related Servicing File or (b) the most recent "desktop" value
estimate performed by the Special Servicer that is contained in the related
Servicing File.
"ARD Loan" shall mean any Mortgage Loan (or successor REO
Loan) that provides that if the unamortized principal balance thereof is not
repaid on its Anticipated Repayment Date, such Mortgage Loan (or successor REO
Loan) will accrue additional interest at the rate specified in the related
Mortgage Note and the related Mortgagor is required to apply certain excess
monthly cash flow generated by the related Mortgaged Property to the repayment
of the outstanding principal balance on such Mortgage Loan.
"Assignment of Leases" shall mean, with respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
document or instrument executed by the Mortgagor in connection with the
origination of the related Mortgage Loan.
"Assumed Monthly Payment" shall mean: (a) 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
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schedule (if any) in effect immediately prior to, and without regard to the
occurrence of, the related Stated Maturity Date; and (b) 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 clause (a) 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.
"ASTM" shall mean the American Society for Testing and
Materials.
"Authenticating Agent" shall mean any authenticating agent
appointed pursuant to Section 8.12 (or, in the absence of any such appointment,
the Trustee).
"Available Distribution Amount" shall mean, with respect to
any Distribution Date, an amount equal to: (a) the sum, without duplication, of
(i) the aggregate amount of all payments and other collections on or with
respect to the Mortgage Loans and any REO Properties that (A) were received as
of the close of business on the immediately preceding Determination Date and (B)
are on deposit in the Collection Account as of 12:00 noon (New York City time)
on such Distribution Date, (ii) the aggregate amount of any P&I Advances made by
the Master Servicer, the Trustee and/or the Fiscal Agent for distribution on the
Certificates on such Distribution Date pursuant to Section 4.03, (iii) the
aggregate amount 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, (iv) to the extent not included in clause (a)(i) of this
definition, the aggregate amount transferred from the Excess Liquidation
Proceeds Account to the Collection Account pursuant to Section 3.05(d) in
respect of such Distribution Date 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 March of any year thereafter, the aggregate of
the Interest Reserve Amounts transferred from the Interest Reserve Account to
the Collection Account in respect of the Interest Reserve Loans for distribution
on such Distribution Date; net of (b) the portion of the aggregate amount
described in clause (a) 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 the Collection Account pursuant to clauses (ii),
(iv), (v) and/or (vi) of Section 3.05(b), (iv) Prepayment Premiums, Yield
Maintenance Charges and/or Additional Interest, (iii) 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 (iv) any amounts deposited in the
Collection Account in error.
"Balloon Mortgage Loan" shall mean 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 significantly larger than the
Scheduled Payment due on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment" shall mean, 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.
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"Bid Allocation" shall mean, with respect to the Master
Servicer or any Sub-Servicer and the proceeds of any bid pursuant to Section
7.01(c), the amount of such proceeds (net of any expenses incurred in connection
with such bid and the transfer of servicing), multiplied by a fraction equal to
(a) the Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the
case may be, as of such date of determination, over (b) the aggregate of the
Servicer Fee Amounts for the Master Servicer and all of the Sub-Servicers as of
such date of determination.
"Book-Entry Certificate" shall mean any Certificate registered
in the name of the Depository or its nominee, including any Rule 144A/IAI Global
Certificate in respect of a Class X, Class H or Class J Certificate and any
Regulation S Permanent Global Certificate or Regulation S Temporary Global
Certificate in respect of the Class H Certificates.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry Certificate.
"Book-Entry Subordinate Certificate" shall mean any
Subordinate Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New York, or in any
of the cities in which the Corporate Trust Office of the Trustee, the Primary
Servicing Office of the Master Servicer or the Primary Servicing Office of the
Special Servicer are located, are authorized or obligated by law or executive
order to remain closed.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the LB-UBS Commercial
Mortgage Trust 2000-C4, Commercial Mortgage Pass-Through Certificates, Series
2000-C4, as executed by the Certificate Registrar and authenticated and
delivered hereunder by the Authenticating Agent.
"Certificate Factor" shall mean, 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" shall mean, 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" shall mean, 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.
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"Certificate Principal Balance" shall mean, 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 belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained
pursuant to Section 5.02.
"Certificate Registrar" shall mean the registrar appointed
pursuant to Section 5.02.
"Certificateholder" shall mean 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 Tax 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 the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent or the
Trustee in its respective capacity as such, 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" 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" only the Person in whose name a Certificate
is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution Date Statement, the CMSA Loan Periodic Update File, the CMSA
Property File, the CMSA Financial File, the Mortgage Pool Data Update Report,
the Delinquent Loan Status Report, the Historical Liquidation Report, the
Historical Loan Modification Report, the REO Status Report, the Servicer Watch
List, the Loan Payoff Notification Report and the Comparative Financial Status
Report.
"Class" shall mean, collectively, all of the Certificates
bearing the same alphabetical and, if applicable, numerical class designation.
"Class A Certificates" shall mean the Class A-1 and Class A-2
Certificates.
"Class A-1 Certificate" shall mean 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" shall mean any one of the Certificates
with a "Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A Principal Distribution Cross-Over Date" shall mean
the first Distribution Date as of the commencement of which (i) the Class A-1
and Class A-2 Certificates remain outstanding and
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(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" shall mean 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" shall mean 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" shall mean 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" shall mean 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" shall mean 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" shall mean 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" shall mean 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" shall mean 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" shall mean 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" shall mean any of the Certificates with
a "Class L" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class M Certificate" shall mean 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.
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"Class N Certificate" shall mean 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" shall mean 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) a pro rata
undivided interest in the Grantor Trust.
"Class Notional Amount" shall mean, 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" shall mean 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" shall mean 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" shall mean 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" shall mean 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" shall mean 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.
"Clearstream" shall mean Clearstream International.
"Closing Date" shall mean September 28, 2000.
"CMSA" shall mean the Commercial Mortgage Securities
Association, or any association or organization that is a successor thereto.
"CMSA Financial File" shall mean the monthly report in the
"CMSA Financial 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 N. The initial data for this report shall
be provided by the Depositor.
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"CMSA Loan Periodic Update File" shall mean the monthly report
in the "CMSA Loan Periodic Update File" format substantially containing the
information called for in such format for the Mortgage Loans, which report shall
be substantially in the form attached hereto as Exhibit L. The initial data for
this report shall be provided by the Depositor.
"CMSA Loan Set-Up File" shall mean the monthly report
containing the information called for in the form attached hereto as Exhibit O,
which report shall be in the form of such Exhibit O or such other form for the
presentation of such information as may from time to time be recommended by the
CMSA for commercial mortgage securities transactions generally.
"CMSA Property File" shall mean 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" shall mean 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.
"Collection Account" shall mean 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-C4, Commercial Mortgage Pass-Through
Certificates, Series 2000-C4".
"Collection Period" shall mean, with respect to any
Distribution Date or Master Servicer Remittance Date, the period commencing on
the day immediately following the Determination Date in the calendar month
preceding the month in which such Distribution Date or Master Servicer
Remittance Date, as the case may be, occurs (or, in the case of each of the
initial Distribution Date and the initial Master Servicer Remittance Date,
commencing immediately following the Cut-off Date) and ending on and including
the Determination Date in the calendar month in which such Distribution Date or
Master Servicer Remittance Date, as the case may be, occurs.
"Commission" shall mean the Securities and Exchange Commission
or any successor agency.
"Comparative Financial Status Report" shall mean a report
substantially in the form of Exhibit P hereto, setting forth, among other
things, (a) the occupancy and the Debt Service Coverage Ratio for the related
Mortgaged Property as of the date of the latest financial information received
(covering no less than the available twelve consecutive months trailing or,
until financial information for the twelve months trailing is available, year to
date) immediately preceding the preparation of such report, and (b) the revenue
and net operating income or net cash flow for each of the following periods (to
the extent such information is in the Master Servicer's or the Special
Servicer's possession): (i) each of the two previous consecutive available
fiscal years stated separately; and (ii) the "base year" (representing the
original analysis of information used as of the Cut-off Date).
"Component" shall mean any of the following fifteen components
of the Class X Certificates: Component X-A-1, Component X-A-2, Component X-B,
Component X-C, Component X-
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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" shall mean the component of the Class X
Certificates that has 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" shall mean the component of the Class X
Certificates that has 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" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest B outstanding from time to time.
"Component X-C" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest C outstanding from time to time.
"Component X-D" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest D outstanding from time to time.
"Component X-E" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest E outstanding from time to time.
"Component X-F" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest F outstanding from time to time.
"Component X-G" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest G outstanding from time to time.
"Component X-H" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest H outstanding from time to time.
"Component X-J" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest J outstanding from time to time.
"Component X-K" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest K outstanding from time to time.
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"Component X-L" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest L outstanding from time to time.
"Component X-M" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest M outstanding from time to time.
"Component X-N" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest N outstanding from time to time.
"Component X-P" shall mean the component of the Class X
Certificates that has a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest P outstanding from time to time.
"Component Notional Amount" shall mean 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" shall mean, 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" shall mean any Holder of
a Certificate of the Controlling Class.
"Controlling Class Representative" shall have the meaning
assigned thereto in Section 6.09.
"Corporate Trust Office" shall mean the principal corporate
trust office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 135 South LaSalle
Street, Suite 1625, Chicago, Illinois 60603, Attention: Asset Backed Securities
Trust Services Group - LB-UBS Commercial Mortgage Trust 2000-C4.
"Corrected Loan" shall mean any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property's becoming an REO Property).
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"Corresponding REMIC II Regular Interest" shall mean: (a) 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 (b) 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.
"Credit Tenant" shall mean a tenant under a Credit Tenant
Lease.
"Credit Tenant Lease" shall mean, with respect to each CTL
Loan, the lease agreement between the related Mortgagor as lessor and the
related Credit Tenant as lessee of the related Mortgaged Property, which lease
covers all or substantially all of such Mortgaged Property.
"Cross-Collateralized Group" shall mean any group of Mortgage
Loans that is cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage
Loan that is cross-defaulted and cross-collateralized with any other Mortgage
Loan.
"CTL Loan" shall mean a Mortgage Loan that is secured by a
Mortgaged Property that is the subject of a Credit Tenant Lease, and which is
identified as a "Credit Lease Loan" on the Mortgage Loan Schedule.
"Custodial Account" shall mean 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 "ORIX Real Estate Capital Markets LLC [OR THE NAME OF ANY
SUCCESSOR MASTER SERVICER], as Master Servicer, on behalf of LaSalle Bank
National Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in
trust for the registered holders of LB-UBS Commercial Mortgage Trust 2000-C4,
Commercial Mortgage Pass-Through Certificates, Series 2000-C4, Custodial
Account".
"Custodian" shall mean 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" shall mean September 11, 2000.
"Cut-off Date Balance" shall mean, with respect to any
Mortgage Loan, the outstanding principal balance of such Mortgage Loan as of the
Cut-off Date, net of all unpaid payments of principal due in respect thereof on
or before such date.
"Debt Service Coverage Ratio" shall have the meaning assigned
thereto in, and be determined in accordance with, the provisions of Exhibit E
attached hereto.
"Default Charges" shall mean Default Interest and/or late
payment charges that are paid or payable, as the context may require, in respect
of any Mortgage Loan or REO Loan.
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"Default Interest" shall mean, with respect to any Mortgage
Loan (or 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 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" shall mean a Specially Serviced
Mortgage Loan (i) that is delinquent in an amount equal to at least two Monthly
Payments (not including the Balloon Payment) or is delinquent thirty days or
more in respect of its Balloon Payment, in either case such delinquency to be
determined without giving effect to any grace period permitted by the related
Mortgage or Mortgage Note and without regard to any acceleration of payments
under the related Mortgage and Mortgage Note, or (ii) as to which the Master
Servicer or the Special Servicer has, by written notice to the related
Mortgagor, accelerated the maturity of the indebtedness evidenced by the related
Mortgage Note.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Collateral" shall mean, 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" shall have the meaning assigned
thereto in Section 3.04(a).
"Defeasance Loan" shall mean any Mortgage 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" shall have the meaning assigned
thereto in Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any
Non-Registered Certificate that has been issued as a Definitive Certificate.
"Definitive Subordinate Certificate" shall mean any
Subordinate Certificate that has been issued as a Definitive Certificate.
"Delinquent Loan Status Report" shall mean a report containing
substantially the information described in Exhibit S attached hereto and
including, among other things, each Mortgage Loan which, as of the close of
business on the Determination Date for the related Distribution Date, was (1)
delinquent 30-59 days, (2) delinquent 60-89 days, (3) delinquent 90 days or
more, (4) current but specially serviced or (5) in foreclosure but not yet REO
Property, and which report shall include such additional commentary in respect
of each such Mortgage Loan, such as whether the related Mortgagor has filed for
bankruptcy or similar protection, as set forth on Exhibit S attached hereto.
"Depositor" shall mean SASCO.
"Depository" shall mean 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
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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" shall mean 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" shall mean the 11th calendar day of each
month (or, if such 11th day is not a Business Day, the Business Day immediately
following), commencing in October 2000.
"Directly Operate" shall mean, 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" shall mean, with respect to any prepaid
Mortgage Loan or REO Loan, for purposes of allocating any Prepayment Premium or
Yield Maintenance Charge received thereon or with respect thereto among the
respective Classes of the Principal Balance Certificates (other than any
Excluded Class thereof), 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.
"Disqualified Non-United States Tax Person" shall mean, with
respect to any Residual Interest Certificate, any Non-United States Tax Person
or agent thereof other than: (1) a Non-United States Tax 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,
Form W-8ECI or successor form and has agreed to update such form as required
under the applicable Treasury regulations; or (2) a Non-United States Tax 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" shall mean 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
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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) that 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" shall mean, 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 the product of (i) the Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, the numerator of which is the amount of Accrued Certificate Interest
in respect of such Class of Certificates for the related Interest Accrual
Period, and the denominator of which is the aggregate amount of Accrued
Certificate Interest in respect of all the Classes of Regular Interest
Certificates for the related Interest Accrual Period.
"Distributable Component Interest" shall mean, 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 Net Aggregate Prepayment Interest Shortfall for
such Distribution Date, 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 all the Classes of Regular
Interest Certificates for the related Interest Accrual Period.
"Distribution Date" shall mean the date each month, commencing
in October 2000, on which, among other things, the Trustee is to make
distributions on the Certificates, which date shall be the fourth Business Day
following the Determination Date in such calendar month.
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in
Section 2.03(a).
"Due Date" shall mean: (i) with respect to any Mortgage Loan
on or prior to its Stated Maturity Date, the day of the month set forth in the
related Mortgage Note on which each Monthly Payment on such Mortgage Loan is
scheduled to be first due; (ii) with respect to any Mortgage Loan after its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan had been scheduled to
be first due; and (iii) with respect to 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.
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"EDGAR" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean 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
"Aa3" 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 S&P) and "AA-" by S&P (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) 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 S&P) and "A-1" by
S&P (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) 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 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) 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" shall mean 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" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Escrow Payment" shall mean 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.
"Euroclear" shall mean The Euroclear System.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any,
of (a) the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or REO Property, net of (i) interest on any related
Advances and (ii) any related Servicing Advances, over (b) the amount needed to
pay off the Mortgage Loan or related REO Loan in full.
"Excess Liquidation Proceeds Account" shall mean the
segregated account created and maintained by the Trustee pursuant to Section
3.04(d) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in
trust for the registered holders of LB-UBS Commercial Mortgage Trust 2000-C4,
Commercial Mortgage Pass-Through Certificates, Series 2000-C4".
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Excluded Classes" shall mean, collectively, 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.
"Exemption-Favored Party": Any of (i) Lehman Brothers, UBS
Warburg LLC or Deutsche Bank Securities Inc., (ii) any Person directly or
indirectly, through one or more intermediaries, controlling, controlled by or
under common control with Lehman Brothers, UBS Warburg LLC or Deutsche Bank
Securities Inc. and (iii) any member of an underwriting syndicate or selling
group of which any Person described in clauses (i) and (ii) is a manager or
co-manager with respect to a Class of Certificates.
"Fannie Mae" shall mean the Federal National Mortgage
Association or any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation
or any successor.
"Final Distribution Date" shall mean 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" shall mean a determination by
the Special Servicer with respect to any Mortgage Loan or REO Property (other
than a Mortgage Loan that was paid in full and other than a Mortgage Loan or REO
Property, as the case may be, that was purchased by the Depositor pursuant to
Section 2.03(a), by UBSPF 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 Certificateholder pursuant to Section 9.01) that there has
been a recovery of all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries that the Special Servicer has determined, in accordance
with the Servicing Standard, will be ultimately recoverable.
"Fiscal Agent" shall mean ABN AMRO, in its capacity as fiscal
agent hereunder, or any successor fiscal agent appointed as herein provided.
"GAAP" shall mean generally accepted accounting principles in
the United States of America.
"Global Opinion" shall have the meaning assigned thereto in
Section 11.12.
"Grantor Trust" shall mean that certain "grantor trust"
(within the meaning of the Grantor Trust Provisions) consisting of the Grantor
Trust Assets.
"Grantor Trust Assets" shall mean any Additional Interest
collected with respect to an ARD Loan after its Anticipated Repayment Date.
"Grantor Trust Provisions" shall mean Subpart E of Subchapter
J of the Code.
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"Ground Lease" shall mean, with respect to any Mortgage Loan
for which the related Mortgagor has a leasehold interest in the related
Mortgaged Property, the lease agreement creating such leasehold interest.
"Hazardous Materials" shall mean 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" shall mean a report setting
forth, among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report, (i) the aggregate amount
of Net Liquidation Proceeds received during the Collection Period ending on such
Determination Date and historically, and (ii) the amount of Realized Losses
occurring during the Collection Period ending on such Determination Date and
historically, set forth on a Mortgage Loan-by-Mortgage Loan and REO Loan-by-REO
Loan basis, which report shall be substantially in the form of, and include such
additional information in respect of each Mortgage Loan and REO Loan as to which
a Final Recovery Determination has been made as set forth on, Exhibit U attached
hereto.
"Historical Loan Modification Report" shall mean a report
setting forth, among other things, those Mortgage Loans which, as of the close
of business on the Determination Date immediately preceding the preparation of
such report, have been modified pursuant to this Agreement (i) during the
Collection Period ending on such Determination Date and (ii) since the Cut-off
Date, with a description of the original and the revised terms thereof, which
report shall be substantially in the form of, and include such additional
information in respect of each such Mortgage Loan as set forth on, Exhibit T
attached hereto.
"Holder" shall mean a Certificateholder.
"HUD-Approved Servicer" shall mean 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" shall mean, 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 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
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 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 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 or any
Affiliate thereof, as the case may be.
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"Independent Appraiser" shall mean 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" shall mean: (a) 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), provided that (i) REMIC I does not receive or derive any income
from such Person and (ii) 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 (b) any other Person upon receipt by the Trustee of an Opinion
of Counsel, which shall be at no expense to the Master Servicer, the Special
Servicer, the Trustee or the Trust Fund, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor, will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code, or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property, due to such Person's failure to be treated as an
Independent Contractor.
"Initial Resolution Period" shall have the meaning assigned
thereto in Section 2.03(a).
"Institutional Accredited Investor" shall mean 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" shall mean, with respect to any Mortgage
Loan, any hazard insurance policy, flood insurance policy, title policy or other
insurance policy that is maintained from time to time in respect of such
Mortgage Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the 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" shall have the meaning assigned thereto in
Section 3.24.
"Interest Accrual Basis" shall mean the basis on which
interest accrues in respect of any Mortgage Loan, any REMIC I Regular Interest,
any REMIC II Regular Interest, any Class of Regular Interest Certificates or any
particular Component of the Class X Certificates, in each case consisting of one
of the following: (i) a 360-day year consisting of twelve 30-day months; (ii)
actual number of days elapsed in a 360-day year; (iii) actual number of days
elapsed in a 365-day year; or (iv) actual number of days elapsed in an actual
calendar year (taking account of leap year).
"Interest Accrual Period" shall mean, 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
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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" shall mean the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent, any
Certificateholder, or any Affiliate of any such Person.
"Interest Reserve Account" shall mean the segregated account
created and maintained by the Trustee pursuant to Section 3.04(c) in trust for
Certificateholders, which shall be entitled "LaSalle Bank National Association
[OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered
holders of LB-UBS Commercial Mortgage Trust 2000-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4".
"Interest Reserve Amount" shall mean, with respect to any
Interest Reserve Loan, for any Distribution Date that occurs during February of
2001 or February of any year thereafter or during January of 2001 or January of
any year thereafter that is not a leap year, an amount equal to one day's
interest accrued at the related Mortgage Rate (net of the related Additional
Interest Rate in the case of an ARD Loan after the related Anticipated Repayment
Date) on the related Stated Principal Balance as of the Due Date in the month in
which such Distribution Date occurs (but prior to the application of any amounts
due on such Due Date), to the extent that a Monthly Payment is received in
respect thereof for such Due Date as of the related Determination Date or a P&I
Advance is made in respect thereof for such Due Date on the related P&I Advance
Date.
"Interest Reserve Loan" shall mean any Mortgage Loan (or
successor REO Loan) that accrues interest on an Actual/360 Basis.
"Investment Account" shall have the meaning assigned thereto
in Section 3.06(a).
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"LaSalle" shall mean LaSalle Bank National Association or its
successor in interest.
"Late Collections" shall mean: (a) with respect to any
Mortgage Loan, all amounts received thereon during any Collection Period,
whether as payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, or on a Due Date coinciding with or preceding the Cut-off
Date, and not previously recovered; and (b) with respect to any REO Loan, all
amounts received in connection with the related REO Property during any
Collection Period, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of the principal and/or
interest portions of a Monthly Payment (other than a Balloon Payment) or an
Assumed Monthly Payment in respect of the predecessor Mortgage Loan, or the
principal and/or interest portions 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" shall mean 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" shall mean
that certain Mortgage Loan Purchase Agreement dated as of September 21, 2000,
between LBHI and the Depositor.
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"LBHI Mortgage Loan" shall mean any Mortgage Loan transferred
by LBHI to the Depositor, pursuant to the LBHI/Depositor Mortgage Loan Purchase
Agreement.
"Lease Enhancement Policy" shall mean an insurance policy that
provides, subject to customary exclusions, that in the event of a permitted
termination or abatement of a Credit Tenant Lease by the related Credit Tenant
as a result of a casualty or condemnation, the insurer under such policy will be
required to make a specified insurance payment.
"Legal Final Distribution Date" shall mean, 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).
"Lehman Brothers" shall mean Lehman Brothers Inc. or its
successor in interest.
"Liquidation Event" shall mean: (a) with respect to any
Mortgage Loan, any of the following events -- (i) such Mortgage Loan is paid in
full, (ii) a Final Recovery Determination is made with respect to such Mortgage
Loan, (iii) such Mortgage Loan is repurchased by the Depositor pursuant to
Section 2.03(a) or by UBSPF pursuant to the UBS/Depositor Mortgage Loan Purchase
Agreement, or (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; and (b) 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 Expenses" shall mean all customary, reasonable
and necessary "out-of-pocket" costs and expenses due and owing (but not
otherwise covered by Servicing Advances) in connection with the liquidation of
any Specially Serviced Mortgage Loan or REO Property pursuant to Sections 3.09
or 3.18 (including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property (other than any Specially Serviced
Mortgage Loan or REO Property that is (i) repurchased by the Depositor pursuant
to Section 2.03(a) or UBSPF pursuant to the UBS/Depositor Mortgage Loan Purchase
Agreement, (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), or (iv) purchased by the Depositor, the Master
Servicer, the Special Servicer, Lehman Brothers or a Controlling Class
Certificateholder pursuant to Section 9.01), the fee designated as such and
payable to the Special Servicer pursuant to Section 3.11(c).
"Liquidation Fee Rate shall mean, with respect to each
Specially Serviced Mortgage Loan or REO Property as to which a Liquidation Fee
is payable, 1.0%.
"Liquidation Proceeds" shall mean 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
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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, through trustee's sale, foreclosure sale, REO
Disposition or otherwise, exclusive of any portion thereof required to be
released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iv) the
purchase of a Defaulted Mortgage Loan by a Controlling Class Certificateholder
pursuant to Section 3.18(b) or by the Master Servicer or the Special Servicer
pursuant to Section 3.18(c) or any other sale thereof pursuant to Section
3.18(d); (v) the repurchase of a Mortgage Loan by the Depositor pursuant to
Section 2.03(a) or by UBSPF pursuant to the UBS/Depositor Mortgage Loan Purchase
Agreement; or (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. Except for
purposes of Section 3.11(c), "Liquidation Proceeds" shall include any amounts
transferred from the Special Reserve Account to the Custodial Account pursuant
to Section 2.03(e).
"Loan Payoff Notification Report" shall mean a report
containing substantially the information described in Exhibit X attached hereto,
and setting forth for each Mortgage Loan as to which written notice of
anticipated payoff has been received as of the Determination Date preceding the
delivery of such report, among other things, the control/identification number,
the property name, the ending scheduled loan balance for the Collection Period
ending on such Determination Date, the expected date of payment, the expected
related Distribution Date and the estimated amount of the Yield Maintenance
Charge or Prepayment Premium due.
"Lockout Period" shall mean, with respect to any Mortgage 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" shall mean, with respect to any Credit
Tenant Lease, any termination and abatement rights of the related Credit Tenant
arising from a Mortgagor's default under such Credit Tenant Lease in performing
obligations such as required maintenance, repairs and replacements for the
related Mortgaged Property.
"Master Servicer" shall mean ORIX, in its capacity as master
servicer hereunder, or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount" shall mean, with respect
to any Master Servicer Remittance Date, an amount equal to: (a) the aggregate
amount of all payments and other collections on or with respect to the Mortgage
Loans and any REO Properties that (A) were received as of the close of business
on the immediately preceding Determination Date and (B) are on deposit or are
required to be on deposit in the Custodial Account as of 12:00 noon (New York
City time) on such Master Servicer Remittance Date, including any such payments
and other collections transferred to the Custodial Account from the REO Account
(if established); net of (b) the portion of the aggregate amount described in
clause (a) 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 amount payable or reimbursable to any Person
from the Custodial Account pursuant to clauses (ii) through (xvi) of Section
3.05(a), (iii) any Excess Liquidation Proceeds and (iv) any amounts deposited in
the Custodial Account in error.
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"Master Servicer Remittance Date" shall mean the date each
month, commencing in October 2000, on which, among other things, the Master
Servicer is to transfer the Master Servicer Remittance Amount and any Excess
Liquidation Proceeds to the Trustee, which date shall be the Business Day
immediately preceding each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each
Mortgage Loan and REO Loan, the fee payable to the Master Servicer pursuant to
Section 3.11(a).
"Master Servicing Fee Rate" shall mean, 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.
"Material Breach" shall have the meaning assigned thereto in
Section 2.03(a).
"Material Document Defect" shall have the meaning assigned
thereto in Section 2.03(a).
"Modified Mortgage Loan" shall mean any Mortgage Loan as to
which any Servicing Transfer Event has occurred and which has been modified by
the Special Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to, bringing
Monthly Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related loan
documents, results in a release of the lien of the related Mortgage on
any material portion of the related Mortgaged Property without a
corresponding Principal Prepayment in an amount, or the delivery of
substitute real property collateral with a fair market value (as is),
that is not less than the fair market value (as is) of the property to
be released, as determined by an appraisal delivered to the Special
Servicer (at the expense of the related Mortgagor and upon which the
Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage
Loan or materially reduces the likelihood of timely payment of amounts
due thereon.
"Monthly Payment" shall mean, with respect to any Mortgage
Loan, as of any Due Date, the scheduled monthly payment (or, in the case of an
ARD Loan after its Anticipated Repayment Date, the monthly payment required to
be paid on a current basis) of principal and/or interest on such Mortgage 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
changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, extension,
waiver or amendment granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.20), including any Balloon Payment payable in
respect of such Mortgage Loan on such Due Date; provided that the Monthly
Payment due in respect of any Mortgage 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.
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"Moody's" shall mean 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" shall mean, with respect to any Mortgage 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" shall mean, with respect to any Mortgage Loan,
the following documents collectively:
(i) 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-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4" 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;
(ii) an original or copy of the Mortgage, together with
originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) 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 (unless the
particular item has not been returned from the applicable
recording office) with evidence of recording indicated
thereon;
(iv) an original executed assignment, in recordable form
(except for recording information not yet available if the
instrument being assigned has not been returned from the
applicable recording office), 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-C4, Commercial Mortgage Pass-Through Certificates, Series
2000-C4 (or, in each case, a copy thereof, certified to be the
copy of such assignment submitted for recording);
(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-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4";
(vi) originals or copies of any written modification
agreements in those instances where the terms or provisions of
the Mortgage or Mortgage Note have been
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modified, in each case (unless the particular item has not
been returned from the applicable recording office) 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 an original UCC-2 or UCC-3 assignment
thereof, 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-C4, Commercial Mortgage Pass-Through
Certificates, Series 2000-C4";
(ix) an original or copy of any Ground Lease and Ground
Lease estoppels relating to such Mortgage Loan;
(x) an original or copy of any loan agreement;
(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 CTL Loan, an original or
copy of the Credit Tenant Lease and any Lease Enhancement
Policy;
(xiv) if such Mortgage Loan is a CTL 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
(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-C4,
Commercial Mortgage Pass-Through Certificates, Series
2000-C4";
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
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certification by the Trustee or a Custodian on its behalf 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 a Custodian on its
behalf has actual knowledge of their existence.
"Mortgage Loan" shall mean 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" shall mean the
LBHI/Depositor Mortgage Loan Purchase Agreement and the UBS/Depositor Mortgage
Loan Purchase Agreement, together.
"Mortgage Loan Schedule" shall mean 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) (A) the Administrative Cost Rate and (B) the primary
servicing fee rate;
(x) whether the Mortgage Loan is secured by a Ground
Lease;
(xi) the related Mortgage Loan Seller;
(xii) whether the related Mortgage Loan is a Defeasance
Loan;
(xiii) whether such Mortgage Loan is an ARD Loan and, if
so, the Anticipated Repayment Date and Additional Interest
Rate;
(xiv) whether the Mortgage Loan is a CTL Loan and, if so,
the related Credit Tenant and, if different, the related Rated
Party;
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(xv) if the Mortgage Loan is a CTL Loan, whether there is
a Lease Enhancement Policy or Residual Value Insurance Policy
in effect; and
(xvi) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs.
"Mortgage Loan Sellers" shall mean LBHI and UBSPF, together.
"Mortgage Note" shall mean the original executed note
evidencing the indebtedness of a Mortgagor under a Mortgage Loan, together with
any rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Loans, collectively.
"Mortgage Pool Data Update Report" shall mean, 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 as of the end of the related Collection Period,
which report shall contain substantially the categories of information regarding
the Mortgage 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), and 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" shall mean, with respect to each Mortgage Loan
(and 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 from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in accordance with Section 3.20 or in connection with
a bankruptcy, insolvency or similar proceeding involving the related Mortgagor.
In the case of each ARD Loan, the related Mortgage Rate shall increase in
accordance with the related Mortgage Note if the particular loan is not paid in
full by its Anticipated Repayment Date.
"Mortgaged Property" shall mean the real property subject to
the lien of a Mortgage.
"Mortgagor" shall mean, individually and collectively, 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
under the Mortgage in respect of the related Mortgage Loan.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date, the amount, if any, by which (a) the aggregate
of all Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans (including Specially Serviced
Mortgage Loans) during the related Collection Period, exceeds (b) the aggregate
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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 Default Charges" shall have the meaning assigned thereto
in Section 3.25(a).
"Net Investment Earnings" shall mean, 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 (exclusive, in the case of a
Servicing Account, a Reserve Account or the Defeasance Deposit Account, of any
portion of such interest or other income payable to a Mortgagor in accordance
with the related loan documents and applicable law), 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 (exclusive, in the
case of a Servicing Account, a Reserve Account or the Defeasance Deposit
Account, of any portion of such losses that were incurred in connection with
investments made for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, 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 (exclusive, in the case of a Servicing Account, a Reserve Account
or the Defeasance Deposit Account, of any portion of such losses that were
incurred in connection with investments made for the benefit of a Mortgagor),
exceeds the aggregate of all interest and other income realized during such
Collection Period on such funds (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
loan documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of
all Liquidation Proceeds received with respect to any Specially Serviced
Mortgage Loan or REO Property, over the amount of all Liquidation Expenses
incurred with respect thereto.
"Net Mortgage Rate" shall mean, 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 Loan after its Anticipated
Repayment Date, the related Additional Interest Rate.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration received with respect to any Mortgage Loan or REO Loan, net of any
Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean 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.
"NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Mortgage Loans other than Specially
Serviced Mortgage Loans and REO Loans, and by the Special Servicer with respect
to Specially Serviced Mortgage Loans and REO Loans, containing substantially the
information described in Exhibit V attached hereto, presenting the computations
made in accordance with the methodology described in Exhibit V to "normalize"
the full year-end net operating income or net cash flow and debt service
coverage numbers used in the other reports required by this Agreement.
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"Nonrecoverable Advance" shall mean any Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean any P&I Advance
previously made or proposed to be made in respect of any Mortgage Loan or REO
Loan by the Master Servicer, the Trustee or the Fiscal Agent, 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 or REO
Loan, as the case may be.
"Nonrecoverable Servicing Advance" shall mean any Servicing
Advance previously made or proposed to be made in respect of a Mortgage Loan or
REO Property by the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, 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 or REO Property, as the case may be.
"Non-Registered Certificate" shall mean any Certificate that
has not been the subject of registration under the Securities Act. As of the
Closing Date, the Class X, 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 Tax Person" shall mean any Person other
than a United States Tax Person.
"Officer's Certificate" shall mean 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" shall mean, with respect
to each Mortgage Loan and REO Property, a report prepared by the Master
Servicer, substantially containing the information described in Exhibit W
attached hereto.
"Opinion of Counsel" shall mean a written opinion of counsel
(which counsel shall be Independent of the Depositor, the Master Servicer and
the Special Servicer) acceptable to and delivered to the Trustee or any other
specified Person, as the case may be.
"Original Class Notional Amount" shall mean, with respect to
the Class X Certificates, the initial Class Notional Amount thereof as of the
Closing Date, which is equal to $999,060,409.
"Original Class Principal Balance" shall mean, 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.
"ORIX" shall mean ORIX Real Estate Capital Markets LLC or its
successor in interest.
"OTS" shall mean the Office of Thrift Supervision or any
successor thereto.
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"Ownership Interest" shall mean, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"P&I Advance" shall mean, as to any Mortgage Loan or REO Loan,
any advance made by the Master Servicer, the Trustee or the Fiscal Agent
pursuant to Section 4.03.
"P&I Advance Date" shall mean the date each month, commencing
in October 2000, on which, among other things, the Master Servicer is required
to make P&I Advances, which date shall be the Business Day immediately preceding
each Distribution Date.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates for any
Interest Accrual Period, 7.18% per annum;
(b) with respect to the Class A-2 Certificates for any
Interest Accrual Period, 7.37% per annum;
(c) with respect to the Class B Certificates for any Interest
Accrual Period, 7.48% per annum;
(d) with respect to the Class C Certificates for any Interest
Accrual Period, 7.61% per annum;
(e) with respect to the Class D Certificates for any Interest
Accrual Period, 7.70% per annum;
(f) with respect to the Class E Certificates for any Interest
Accrual Period, 7.97% per annum;
(g) with respect to the Class F Certificates for any Interest
Accrual Period, 8.07% per annum;
(h) with respect to the Class G Certificates for any Interest
Accrual Period, 8.15% per annum;
(i) with respect to the Class H Certificates for any Interest
Accrual Period, 6.89% per annum;
(j) with respect to the Class J Certificates for any Interest
Accrual Period, 6.89% per annum;
(k) with respect to the Class K Certificates for any Interest
Accrual Period, 6.89% per annum;
(l) with respect to the Class L Certificates for any Interest
Accrual Period, 6.89% per annum;
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(m) with respect to the Class M Certificates for any Interest
Accrual Period, 6.89% per annum;
(n) with respect to the Class N Certificates for any Interest
Accrual Period, 6.89% per annum;
(o) with respect to the Class P Certificates for any Interest
Accrual Period, 6.89% per annum;
(p) with respect to 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 fixed Pass-Through Rate
applicable to the Class of Principal Balance Certificates whose
alphabetical (and, if applicable, numerical) Class designation, when
preceded by "X-", is the same as the alphabetical (and, if
applicable, numerical) designation of such Component; and
(q) with respect to 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 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" shall mean: (a) 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; and
(b) 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" shall have the meaning assigned
thereto in Section 2.04(b)(viii).
"Permitted Investments" shall mean 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 that 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) of this definition (having original maturities of not
more than 365 days), provided that the short-term deposit or
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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 S&P) and S&P
(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). 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 S&P) and S&P (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). 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 90 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 S&P) and S&P
(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). 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 S&P) and S&P (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 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
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maturity at par of the underlying obligations; (2) no investment described
hereunder may be purchased at a price greater than par if such investment may be
prepaid or called at a price less than its purchase price prior to stated
maturity; and (3) no investment described hereunder may have a "r" highlighter
or other comparable qualifier attached to its rating.
"Permitted Transferee" shall mean 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 Tax 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 Tax Persons.
"Person" shall mean 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" shall have the meaning assigned thereto in Section
5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, 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.
"Prepayment Assumption" shall mean, for purposes of
determining the accrual of original issue discount, market discount and premium,
if any, on the Certificates for federal income tax purposes, the assumption that
no Mortgage Loan is prepaid prior to stated maturity, except that it is assumed
that each ARD Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment Premium
or Yield Maintenance Charge.
"Prepayment Consideration Entitlement" shall mean, with
respect to (i) any Distribution Date on which any Net Prepayment Consideration
collected on any Mortgage Loan (or successor REO Loan) is distributable and (ii)
any Class of Principal Balance Certificates (other than any Excluded Class)
entitled to distributions of principal on such Distribution Date, an amount
equal to the product of (a) such Net Prepayment Consideration, multiplied by (b)
a fraction (not greater than 1.0 or less than 0.0), the numerator of which is
equal to the excess, if any, of the Pass-Through Rate for such Class of
Principal Balance Certificates over the relevant Discount Rate, and the
denominator of which is equal to the excess, if any, of the Mortgage Rate for
such Mortgage Loan (or REO Loan) over the relevant Discount Rate, and further
multiplied by (c) a fraction, the numerator of which is equal to the amount of
principal to be distributed on such Class of Principal Balance Certificates on
such Distribution Date pursuant to Section 4.01(a) or 9.01, as applicable, and
the denominator of which is equal to the Principal Distribution Amount for such
Distribution Date.
"Prepayment Interest Excess" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part made
after its Due Date in any Collection Period, any payment of interest (net of
related Master Servicing Fees) actually collected from the related Mortgagor and
intended to cover interest accrued on such Principal Prepayment during the
period from and after
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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" shall mean, with respect to
any Mortgage Loan that was subject to a Principal Prepayment in full or in part
made prior to its Due Date in any Collection Period, the amount of interest, to
the extent not collected from the related Mortgagor (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected),
that would have accrued at a rate per annum equal to the related 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" shall mean 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" shall mean 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 Offices of the Master Servicer and the
Special Servicer are located at 1717 Main Street, Dallas, Texas 75201.
"Prime Rate" shall mean the "prime rate" published in the
"Money Rates" section of The Wall Street Journal, as such "prime rate" may
change from time to time. If The Wall Street Journal ceases to publish the
"prime rate", then the Trustee shall select an equivalent publication that
publishes such "prime rate"; and, if such "prime rate" is no longer generally
published or is limited, regulated or administered by a governmental or
quasi-governmental body, then the Trustee shall select a comparable interest
rate index. In either case, such selection shall be made by the Trustee in its
sole discretion and the Trustee shall notify the Fiscal Agent, the Master
Servicer and the Special Servicer in writing of its selection.
"Principal Balance Certificate" shall mean any Regular
Interest Certificate (other than a Class X Certificate).
"Principal Distribution Amount" shall mean, 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 exclusive 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;
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(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 exclusive
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 exclusive of any portion of such proceeds and/or
revenues that represents a Late Collection of principal due on or
before the Cut-off Date or for which a P&I Advance was previously made
for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I
Advances made in respect of the Mortgage Loans and any REO Loans with
respect to such Distribution Date;
"Principal Prepayment" shall mean any payment of principal
made by the Mortgagor on a Mortgage Loan that is received in advance of its
scheduled Due Date and that is not accompanied by an amount of interest (without
regard to any Prepayment Premium or Yield Maintenance Charge that may have been
collected) representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
"Prohibited Transaction Exemptions" shall mean collectively,
Prohibited Transaction Exemptions 91-14, 91-21 and 97-34 granted to Lehman
Brothers, UBS Warburg LLC and Deutsche Bank Securities, Inc. (or predecessors
thereof), respectively, by the United States Department of Labor.
"Proposed Plan" shall have the meaning assigned thereto in
Section 3.17(a)(iii).
"Prospectus" shall mean the prospectus dated September 11,
2000, as supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement
dated September 21, 2000, relating to the Registered Certificates.
"Purchase Price" shall mean, 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) to, but not including, the Due Date in the Collection Period
of purchase (exclusive, however, of any portion of such accrued but unpaid
interest that represents Default Interest or, in the case of an ARD Loan after
its Anticipated Repayment Date, Additional Interest), (c) all related
unreimbursed Servicing Advances, (d) all accrued and unpaid interest in respect
of related Advances in accordance with Section 3.11(g) and/or Section 4.03(d),
and (e) in the case of a purchase by the Depositor pursuant to Section 2.03(a)
or by UBSPF pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement, (i)
to the extent not otherwise included in the amount described in clause (d) of
this definition, any unpaid Special Servicing Fees and other Additional Trust
Fund Expenses with respect to such Mortgage Loan (or REO Property), and (ii) to
the extent not otherwise included in the
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amount described in clause (c) of this definition, any costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trustee (on behalf
of the Trust) in enforcing the obligation of such Person to purchase such
Mortgage Loan.
"Qualified Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Qualified Institutional Buyer" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or
security or bonding company qualified to write the related Insurance Policy in
the relevant jurisdiction.
"Rated Final Distribution Date" shall mean: (a) with respect
to the Class A-1 Certificates, the Distribution Date in September 2019; (b) with
respect to the Class A-2 Certificates, the Distribution Date in August 2026; and
(c) 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 July 2032.
"Rated Party" shall mean, with respect to any Credit Tenant
Lease, the Credit Tenant under such Credit Tenant Lease, the affiliate of such
Credit Tenant or the guarantor of such Credit Tenant's obligations under such
Credit Tenant Lease, as applicable, that as of the Closing Date has long-term
senior unsecured debt obligations or long-term senior unsecured credit
facilities, as the case may be, that have been assigned, as of the Closing Date,
a public investment grade rating by Moody's or S&P, which Person is identified
on the Mortgage Loan Schedule.
"Rating Agency" shall mean each of Moody's and S&P.
"Realized Loss" shall mean: (1) with respect to each Mortgage
Loan as to which a Final Recovery Determination has been made, or with respect
to any successor REO Loan as to which a Final Recovery Determination has been
made as to the related REO Property, an amount (not less than zero) equal to the
excess, if any, of (a) the sum of (i) the unpaid principal balance of such
Mortgage Loan or REO Loan, as the case may be, as of the commencement of the
Collection Period in which the Final Recovery Determination was made, plus (ii)
without taking into account the amount described in subclause (1)(b) of this
definition, all accrued but unpaid interest on such Mortgage Loan or such REO
Loan, as the case may be, to but not including the Due Date in the Collection
Period in which the Final Recovery Determination was made (exclusive, however,
of any portion of such accrued but unpaid interest that represents Default
Interest or, in the case of an ARD Loan after its Anticipated Repayment Date,
Additional Interest), over (b) all payments and proceeds, if any, received in
respect of such Mortgage 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 or REO Loan; (2) with respect to
each Mortgage Loan as to which any portion of the principal or previously
accrued interest payable thereunder was canceled in connection with a bankruptcy
or similar proceeding involving the related Mortgagor or a modification,
extension, waiver or amendment of such Mortgage Loan granted or agreed to by the
Special Servicer pursuant to Section 3.20, the amount of such principal and/or
interest (other than Default Interest and, in the case of an ARD Loan after its
Anticipated Repayment Date, Additional Interest) so canceled; and (3) with
respect to each Mortgage Loan as to which the Mortgage Rate thereon has been
permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Mortgage
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Loan granted or agreed to by the Master Servicer or 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" shall mean, with respect to any Distribution
Date, the last Business Day of the month immediately preceding the month in
which such Distribution Date occurs.
"Recording/Title Policy Omission Credit" shall mean, with
respect to any Mortgage Loan as to which there exists a Recording/Title Policy
Omission as of March 28, 2002, the letter of credit that must be delivered by
the Depositor to the Master Servicer pursuant to Section 2.03(d) hereof, in the
case of an LBHI Mortgage Loan, and by UBSPF to the Master Servicer pursuant the
UBS/Depositor Mortgage Loan Purchase Agreement, in the case of a UBS Mortgage
Loan; provided that a Recording/Title Policy Omission Cash Deposit may be
delivered in lieu thereof.
"Recording/Title Policy Omission" shall mean, with respect to
any Mortgage Loan, the occurrence of any of the following on March 28, 2002 or
September 28, 2002, as applicable, which remains uncured or unremedied: (a) the
Mortgage File for such Mortgage Loan does not contain each document (or a copy
thereof) referenced in clause (ii), clause (iii) or clause (iv) or, in the case
of a Mortgaged Property operated as a hospitality or healthcare property, clause
(viii) of the definition of "Mortgage File", with evidence of recording or
filing, as applicable, thereon, because an original of such document (i) was not
delivered by or on behalf of the Depositor or UBSPF, as the case may be, either
as a recorded document or in proper form for recording in the appropriate public
recording office, (ii) was lost, (iii) was returned unrecorded as a result of an
actual or purported defect therein or (iv) has not been returned from the
applicable public recording or filing office and there is no evidence that the
subject document was submitted for recording or filing, as applicable; or (b)
the Mortgage File for such Mortgage Loan does not contain an original or copy of
the related lender's title insurance policy or a pro forma or specimen title
insurance policy or a commitment for lender's title insurance policy for any
reason; provided that such omission, in the case of either clause (a) or (b),
would, in the reasonable, good faith judgment of the Master Servicer, materially
and adversely affect the ability of the Trustee, the Master Servicer or the
Special Servicer to enforce on a prompt basis the liens and security interests
securing such Mortgage Loan and the priority thereof or to collect on the
related title insurance, as applicable.
"Recording/Title Policy Omission Cash Deposit" shall mean,
with respect to any Mortgage Loan as to which there exists a Recording/Title
Policy Omission as of March 28, 2002, the cash deposit that must be delivered by
the Depositor to the Master Servicer pursuant to Section 2.03(d) hereof, in the
case of an LBHI Mortgage Loan, and by UBSPF to the Master Servicer pursuant the
UBS/Depositor Mortgage Loan Purchase Agreement, in the case of a UBS Mortgage
Loan; provided that a Recording/Title Policy Omission Credit may be delivered in
lieu thereof.
"Registered Certificate" shall mean any Certificate that has
been the subject of registration under the Securities Act. As of the Closing
Date, the Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F and
Class G Certificates are Registered Certificates.
"Regular Interest Certificate" shall mean any REMIC III
Certificate other than a Class R-III Certificate.
"Regulation S" shall mean Regulation S under the Securities
Act.
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"Regulation S Certificate" shall mean a written certification
substantially in the form set forth in Exhibit F-2E hereto certifying that a
beneficial owner of an interest in a Regulation S Global Certificate is not a
United States Securities Person.
"Regulation S Global Certificates" shall mean the Regulation S
Permanent Global Certificate(s) together with the Regulation S Temporary Global
Certificate(s).
"Regulation S Legend" shall mean, with respect to the Class H
Certificates offered and sold outside the United States in reliance on
Regulation S, a legend generally to the effect that such Certificates may not be
offered, sold, pledged or otherwise transferred in the United States or to a
United States Securities Person prior to the Release Date except pursuant to an
exemption from the registration requirements of the Securities Act.
"Regulation S Permanent Global Certificate" shall mean any
single permanent global Certificate, in definitive, fully registered form
without interest coupons received in exchange for a Regulation S Temporary
Global Certificate.
"Regulation S Temporary Global Certificate" shall mean, with
respect to the Class H Certificates offered and sold outside of the United
States in reliance on Regulation S, a single temporary global Certificate, in
definitive, fully registered form without interest coupon, which Certificate
bears a Regulation S Legend.
"Reimbursement Rate" shall mean 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 in accordance with Section
4.03(d), which rate per annum is equal to the Prime Rate.
"Release Date" shall mean the date that is 40 days following
the Closing Date.
"REMIC" shall mean a "real estate mortgage investment conduit"
as defined in Section 860D of the Code.
"REMIC Pool" shall mean any of REMIC I, REMIC II and REMIC
III.
"REMIC Provisions" shall mean the provisions of the federal
income tax law relating to REMICs, 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" shall mean 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 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 Custodial Account, the Collection Account, the Interest Reserve Account and,
if established, the REO Account, exclusive of any amounts that represent
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Additional Interest collected in respect of the ARD Loans after their respective
Anticipated Repayment Dates; and (iv) the rights of the Depositor under the
UBS/Depositor Mortgage Loan Purchase Agreement.
"REMIC I Regular Interest" shall mean 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" shall mean: (a) 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 as of the Closing Date (without regard to any modifications,
extensions, waivers or amendments of such Mortgage Loan subsequent to the
Closing Date); and (b) 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 prior to the
Distribution Date that corresponds to such Interest Accrual Period, minus (ii)
the Administrative Cost Rate for such Mortgage Loan (or any successor REO Loan).
"REMIC II" shall mean 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" shall mean 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" shall mean, 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" shall mean 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" shall mean 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" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
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"REO Account" shall mean the 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 "ORIX Real Estate Capital Markets, LLC [OR THE NAME OF ANY SUCCESSOR
SPECIAL SERVICER], as Special Servicer, on behalf of LaSalle Bank National
Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the
registered holders of LB-UBS Commercial Mortgage Trust 2000-C4, Commercial
Mortgage Pass-Through Certificates, Series 2000-C4, REO Account".
"REO Acquisition" shall mean the acquisition of any REO
Property pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of
any REO Property pursuant to Section 3.18(d).
"REO Extension" shall have the meaning assigned thereto in
Section 3.16(a).
"REO Loan" shall mean the mortgage loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Loan shall
be deemed to provide for monthly payments of principal and/or interest equal to
its Assumed Monthly Payment and otherwise to have the same terms and conditions
as its predecessor Mortgage Loan (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan and the
acquisition of the related REO Property as part of the Trust Fund). Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of its predecessor Mortgage Loan as of the date of the
related REO Acquisition. All Monthly Payments (other than a Balloon Payment),
Assumed Monthly Payments (in the case of a Balloon Mortgage Loan delinquent in
respect of its Balloon Payment) and other amounts due and owing, or deemed to be
due and owing, in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, shall be deemed to continue to be due and owing in
respect of an REO Loan. Collections in respect of each REO Loan (after provision
for amounts to be applied to the payment of, or to be reimbursed to the Master
Servicer or the Special Servicer for the payment of, the costs of operating,
managing and maintaining the related REO Property or for the reimbursement of
the Master Servicer or the Special Servicer for other related Servicing
Advances) shall be treated: first, as a recovery of accrued and unpaid interest
on such REO Loan at the related Mortgage Rate to but not including the Due Date
in the Collection Period of receipt (exclusive, however, in the case of an REO
Loan that relates to an ARD Loan after its Anticipated Repayment Date, of any
such accrued and unpaid interest that constitutes Additional Interest); 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.
Notwithstanding the foregoing, all amounts payable or reimbursable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in respect of
the predecessor Mortgage Loan as of the date of the related REO Acquisition,
including 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) and
4.03(d), respectively, shall continue to be payable or reimbursable to the
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Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the
case may be, in respect of an REO Loan.
"REO Property" shall mean a Mortgaged Property acquired on
behalf and in the name of the Trustee for the benefit of the Certificateholders,
through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and
proceeds derived from the ownership, operation or leasing of any REO Property.
"REO Status Report" shall mean a report substantially in the
form and containing the information described in Exhibit Q attached hereto,
including, with respect to each REO Property that was included in the Trust Fund
as of the close of business on the Determination Date immediately preceding the
preparation of such report, among other things, (i) the Acquisition Date of such
REO Property and (ii) 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" shall have the meaning assigned thereto in Section
3.17(a).
"Request for Release" shall mean 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" shall mean, 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, in respect of which no satisfactory
(as determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, either (a) a "desktop" value estimate performed by the Special Servicer
or (b) at the option of the Special Servicer with the consent of the Controlling
Class Representative, an appraisal from an Independent Appraiser meeting the
criteria specified above in this definition.
"Required Appraisal Loan" shall mean any Mortgage Loan (i)
that becomes a Modified Mortgage Loan (ii) that is sixty (60) days or more
delinquent in respect of any Monthly Payment, including any Balloon Payment,
(iii) with respect to which the related Mortgaged Property has become an REO
Property, (iv) with respect to which a receiver or similar official is appointed
and continues in such capacity in respect of the related Mortgaged Property, (v)
with respect to which the related Mortgagor is subject to a bankruptcy,
insolvency or similar proceedings, or (vi) that remains outstanding five (5)
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 (vi) 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.
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"Required Appraisal Value" shall mean, with respect to any
Mortgaged Property securing (or REO Property relating to) a Required Appraisal
Loan, an amount equal to the sum of: (a) the excess, if any, of (i) 90% of the
Appraised Value of such Mortgaged Property (or REO Property) as determined by
the most recent Required Appraisal or any letter update of such Required
Appraisal, over (ii) the amount of (A) any obligations secured by liens on such
Mortgaged Property (or REO Property) that are prior to the lien of the related
Required Appraisal Loan and (B) the estimated liquidation expenses for such
Mortgaged Property (or REO Property); plus (b) 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
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); plus (c) 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" shall have the meaning assigned thereto in
Section 3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan,
any amounts delivered by the related Mortgagor to be held by or on behalf of the
mortgagee representing reserves for repairs, capital improvements and/or
environmental remediation in respect of the related Mortgaged Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean a Class R-I, Class
R-II or Class R-III Certificate.
"Residual Value Insurance Policy" shall mean, with respect to
any CTL 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.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a Material Breach with respect
to any Mortgage Loan, the 90-day period following the end
of the applicable Initial Resolution Period;
(b) for purposes of remediating a Material Document Defect
with respect to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan at the commencement of, and does
not become a Specially Serviced Mortgage Loan during, the
applicable Initial Resolution Period, the period
commencing at the end of the applicable Initial Resolution
Period and ending on, and including, the earlier of (i)
the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the
Depositor, in the case of an LBHI Mortgage Loan, or by
UBSPF, in the case of a UBS Mortgage Loan, of written
notice from the Master Servicer or the Special Servicer of
the occurrence of any Servicing Transfer Event with
respect to such Mortgage Loan subsequent to the end of
such Initial Resolution Period;
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(c) for purposes of remediating a Material Document Defect
with respect to any Mortgage Loan that is a not a
Specially Serviced Mortgage Loan as of the commencement of
the applicable Initial Resolution Period, but as to which
a Servicing Transfer Event occurs during such Initial
Resolution Period, the period commencing at the end of the
applicable Initial Resolution Period and ending on, and
including, the 90th day following the earlier of (i) the
end of such Initial Resolution Period and (ii) receipt by
the Depositor, in the case of an LBHI Mortgage Loan, or by
UBSPF, in the case of a UBS Mortgage Loan, of written
notice from the Master Servicer or the Special Servicer of
the occurrence of such Servicing Transfer Event; and
(d) for purposes of remediating a Material Document Defect
with respect to any Mortgage Loan that is a Specially
Serviced Mortgage Loan as of the commencement of the
applicable Initial Resolution Period, zero (-0-) days,
provided that, if the Depositor, in the case of an LBHI
Mortgage Loan, or UBSPF, in the case of a UBS Mortgage
Loan, did not receive written notice from the Master
Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable
Initial Resolution Period, then such Servicing Transfer
Event shall be deemed to have occurred during such Initial
Resolution Period and clause (c) of this definition will
be deemed to apply.
"Responsible Officer" shall mean: (a) 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; and (b) when used with respect to the Fiscal Agent, any officer
thereof.
"Review Package" shall mean 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.
"Rule 144A/IAI Global Certificate" shall mean, with respect to
the Class X, Class H or Class J Certificates, a single global Certificate
registered in the name of the Depository or its nominee, in definitive, fully
registered form without interest coupons, which Certificate does not bear a
Regulation S Legend.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "S&P" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Fiscal Agent, the Master Servicer
and the Special Servicer, and specific ratings of Standard & Poor's Ratings
Services herein referenced shall be deemed to refer to the equivalent ratings of
the party so designated.
"SASCO" shall mean Structured Asset Securities Corporation or
any successor in interest.
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"Scheduled Payment" shall mean, with respect to any Mortgage
Loan, for any Due Date following the Cut-off Date as of which it is outstanding,
the Monthly Payment on such Mortgage Loan that is or would be, as the case may
be, payable by the related Mortgagor on such Due Date under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
subsequent change in or modification of such terms in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Mortgage Loan, granted or
agreed to by the Master Servicer or 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" shall mean the Securities Act of 1933, as
amended.
"Senior Certificate" shall mean any Class A-1, Class A-2 or
Class X Certificate.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan primary serviced by such
Sub-Servicer, (i) the Stated Principal Balance of such Mortgage Loan as of the
close of business on the immediately preceding Distribution Date and (ii) the
sub-servicing fee rate specified in the related Sub-Servicing Agreement for such
Mortgage Loan; and (b) with respect to the Master Servicer, as of any date of
determination, the aggregate of the products obtained by multiplying, for each
Mortgage Loan, (i) the Stated Principal Balance of such Mortgage Loan as of the
close of business on the immediately preceding Distribution Date and (ii) the
excess, if any, of the Master Servicing Fee Rate for such Mortgage Loan, over
the sub-servicing fee rate (if any) applicable to such Mortgage Loan, as
specified in any Sub-Servicing Agreement related to such Mortgage Loan.
"Servicer Watch List" shall mean, for any Determination Date,
a report (substantially in the form of Exhibit R attached hereto) of all
Mortgage Loans, other than Specially Serviced Mortgage Loans, that constitute
one of the following types of Mortgage Loans as of such Determination Date: (i)
a Mortgage Loan that has a then current 12-months trailing or fiscal year-end
Debt Service Coverage Ratio that is less than 1.05x; (ii) a Mortgage Loan as to
which any required inspection of the related Mortgaged Property conducted by the
Master Servicer indicates a problem that the Master Servicer determines can
reasonably be expected to materially adversely affect the cash flow generated by
such Mortgaged Property; (iii) a Mortgage Loan as to which the Master Servicer
has actual knowledge of material damage or waste at the related Mortgaged
Property; (iv) a Mortgage Loan as to which it has come to the Master Servicer's
attention in the performance of its duties under this Agreement (without any
expansion of such duties by reason thereof) that any tenant or collective group
of tenants occupying 25% or more of the space in the related Mortgaged Property
(A) has vacated or intends to vacate such space (without being replaced by a
comparable tenant and lease) or (B) has declared or intends to declare
bankruptcy; or (C) is or are within six (6) months of its or their respective
lease expiration dates; (v) a Mortgage Loan that is at least 30 days delinquent
in payment; and (vi) a Mortgage Loan that is within 60 days of maturity.
"Servicing Account" shall have the meaning assigned thereto in
Section 3.03(a).
"Servicing Advances" shall mean 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, if a default is imminent thereunder or a default,
delinquency or other unanticipated event has occurred with respect thereto, or
in connection with the administration of any REO Property, including, but not
limited to, the cost of (a) compliance with the obligations of the
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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 or update thereof 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 3.24 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 Credit 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, the Special Servicer or the Trustee,
such as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
or costs and expenses incurred by any such party in connection with its purchase
of any Mortgage Loan or REO Property pursuant to any provision of this
Agreement.
"Servicing Fees" shall mean, with respect to each Mortgage
Loan and REO Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean, collectively, any and all
documents (other than documents required to be part of the related Mortgage
File) in the possession of the Master Servicer or the Special Servicer and
relating to the origination and servicing of any Mortgage Loan, including
appraisals, surveys, engineering reports and environmental reports.
"Servicing Officer" shall mean any officer or employee of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid" shall have the meaning assigned
thereto in Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned
thereto in Section 7.01(c).
"Servicing Standard" shall mean, with respect to the Master
Servicer or the Special Servicer, to service and administer the Mortgage Loans
and any REO Properties for which it is responsible: (i) with the same care,
skill, prudence and diligence as is normal and usual in its general mortgage
servicing and asset management activities with respect to mortgage loans
comparable to such Mortgage Loans and real properties comparable to such REO
Properties that either (A) are part of other third party portfolios (giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage lenders servicing their own loans); or (B) are
held as part of its own portfolio, whichever is a higher standard; (ii) with a
view to the timely collection of all scheduled payments of principal and
interest, including Balloon Payments, under the Mortgage Loans or, in the case
of the Special Servicer, if a Mortgage Loan comes into and continues in default
and if, in the reasonable, good faith judgment of the Special Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments, with a view to the maximization of the recovery on such Mortgage Loan
to the Certificateholders (as a collective whole), on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
the Certificateholders to be performed at the related Mortgage Rate); and (iii)
without regard to (A) any relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with any of the
related
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Mortgagors; (B) the ownership of any Certificate by the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate of either of them; (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 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" shall mean, with respect to any
Mortgage Loan, the occurrence of any of the events described in clauses (a)
through (g) of the definition of "Specially Serviced Mortgage Loan".
"Single Certificate" shall mean, for purposes of Section 4.02,
a hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents provide substantially to the effect
that: (i) 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, or owning and pledging Defeasance Collateral in connection with the
defeasance of a Defeasance Loan, as the case may be, (ii) it may not engage in
any business unrelated to such Mortgaged Property or Properties or such
Defeasance Collateral, as the case may be, (iii) it will 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, (iv) it may not
incur indebtedness other than incidental to its ownership and operation of the
applicable Mortgaged Property or Properties or Defeasance Collateral, as the
case may be, (v) it will maintain its own books and records and accounts
separate and apart from any other Person, (vi) it will hold itself out as a
legal entity, separate and apart from any other Person and, (vii) in the case of
such an entity whose sole purpose is owning or operating a Mortgaged Property,
it will have 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 Reserve Account" shall mean any segregated account or
account created and maintained by the Master Servicer, pursuant to Section
2.03(e), on behalf of the Trustee in trust for the Certificateholders and the
Depositor with respect to any Recording/Title Policy Omission Cash Deposit with
respect to an LBHI Mortgage Loan, and on behalf of the Certificateholders and
UBSPF with respect to any Recording/Title Policy Omission Cash Deposit with
respect to a UBS Mortgage Loan, which shall be entitled: "ORIX Real Estate
Capital Markets, LLC [OR THE NAME OF ANY SUCCESSOR MASTER SERVICER], as Master
Servicer, on behalf of LaSalle Bank National Association [OR THE NAME OF ANY
SUCCESSOR TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS
Commercial Mortgage Trust 2000-C4, Commercial Mortgage Pass-Through
Certificates, Series 2000-C4, and [NAME OF PARTY PROVIDING RECORDING/TITLE
POLICY RESERVE], Special Reserve Account".
"Special Servicer" shall mean ORIX, in its capacity as special
servicer hereunder, or any successor special servicer appointed as herein
provided.
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"Special Servicing Fee" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Loan, the fee designated as such
and payable to the Special Servicer pursuant to Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan" shall mean any Mortgage
Loan as to which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any
Monthly Payment (including a Balloon Payment), which
failure continues, or the Master Servicer determines, in
its reasonable, good faith judgment, will continue,
unremedied (without regard to any grace period) (i) for 60
days beyond the date on which the subject payment was due,
or (ii) in the case of a defaulted Balloon Mortgage Loan
that is delinquent in respect of its Balloon Payment, but
as to which the related Mortgagor has delivered a
refinancing commitment acceptable to the Special Servicer
within 60 days of the date the subject payment was due,
for such longer period (not to exceed 120 days beyond the
related maturity date) during which the refinancing is
expected to occur;
(b) the Master Servicer shall have determined, in its good
faith, reasonable judgment, that a default in the making
of a Monthly Payment on such Mortgage Loan, including a
Balloon Payment, is likely to occur within 30 days and is
likely to remain unremedied (without regard to any grace
period) for at least the period contemplated by clause (a)
of this definition; or
(c) there shall have occurred a default (other than as
described in clause (a) above) on such Mortgage Loan, and
such default (i) materially impairs the value of the
Mortgaged Property as security for such Mortgage Loan or
otherwise materially adversely affects the interests of
Certificateholders, and (ii) continues unremedied for the
applicable grace period under the terms of such Mortgage
Loan (or, if no grace period is specified, for 30 days);
or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary case under any present or future federal or
state 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 will cease to be a Specially Serviced
Mortgage Loan when a Liquidation Event has occurred with respect to such
Mortgage Loan, when the related Mortgaged Property has become an REO Property
or, so long as at such time no circumstance identified in clauses (a) through
(g) above exists that would cause the Mortgage Loan to continue to be
characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a)
of this definition, 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, extension, waiver or amendment granted or
agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses
(b), (d), (e) and (f) of this definition, 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)
of this definition, 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)
of this definition, 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's becoming a Specially Serviced Mortgage Loan.
"Startup Day" shall mean, with respect to each REMIC Pool, the
day designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any
Mortgage 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, extension, waiver or amendment of such Mortgage Loan granted or
agreed to by the Master Servicer or the Special Servicer pursuant to Section
3.20 and, in the case of an ARD Loan, without regard to its Anticipated
Repayment Date.
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"Stated Principal Balance" shall mean, with respect to any
Mortgage Loan (and any successor REO Loan with respect thereto), the Cut-off
Date Balance of such Mortgage Loan, as permanently reduced on each Distribution
Date (to not less than zero) by (i) that portion, if any, of the Principal
Distribution Amount for such Distribution Date allocable to such Mortgage Loan
(or any such successor REO Loan with respect thereto), and (ii) the principal
portion of any Realized Loss incurred in respect of such Mortgage Loan (or 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 or REO Property, then the "Stated Principal Balance" of
such Mortgage Loan or of the related REO Loan, as the case may be, shall be zero
commencing as of the Distribution Date in the Collection Period next following
the Collection Period in which such Liquidation Event occurred.
"Subordinate Available Distribution Amount" shall mean, 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" shall mean 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" shall mean any Person with which the Master
Servicer or the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean 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" shall have the meaning assigned thereto in
Section 7.01(c).
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to any REMIC
Pool, the Person designated as the "tax matters person" of such REMIC Pool 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" shall mean the federal income tax return on
Internal Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit
Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual
Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any
successor forms, to be filed on behalf of each 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.
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"Transaction Documents" shall mean, collectively, this
Agreement, the Mortgage Loan Purchase Agreements and the Underwriting Agreement.
"Transfer" shall mean any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"Transfer Affidavit and Agreement" shall have the meaning
assigned thereto in Section 5.02(d)(i)(B).
"Transferee" shall mean any Person who is acquiring, by
Transfer, any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by
Transfer, any Ownership Interest in a Certificate.
"Trust" shall mean the common law trust created hereunder.
"Trust Fund" shall mean, collectively, all of the assets of
REMIC I, REMIC II, REMIC III and the Grantor Trust, together with the Special
Reserve Account and any Recording/Title Policy Omission Cash Deposits and
Recording/Title Policy Omission Credits delivered by the Depositor and/or UBSPF
to the Master Servicer as contemplated by Sections 2.03(d) and 2.03(e).
"Trustee" shall mean LaSalle, in its capacity as trustee
hereunder, or any successor trustee appointed as herein provided.
"Trustee Fee" shall mean, 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" shall mean 0.0033% per annum.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
"UBS/Depositor Mortgage Loan Purchase Agreement" shall mean
that certain Mortgage Loan Purchase Agreement dated as of September 21, 2000,
between UBSPF and the Depositor.
"UBS Mortgage Loan" shall mean any Mortgage Loan transferred
by UBSPF to the Depositor, pursuant to the UBS/Depositor Mortgage Loan Purchase
Agreement.
"UBSPF" shall mean UBS Principal Finance, LLC or its successor
in interest.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement
executed and filed pursuant to the UCC.
"Uncertificated Accrued Interest" shall mean 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
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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" shall mean: (a) 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; and (b) 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 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 II 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 II Regular Interests
for the related Interest Accrual Period.
"Uncertificated Principal Balance" shall mean 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 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" shall mean Lehman Brothers Inc., UBS Warburg
LLC and Deutsche Bank Securities Inc. and their respective
successors in interest.
"Underwriting Agreement" shall mean the Underwriting Agreement
dated as of September 21, 2000, between the Depositor and the Underwriters.
"United States Tax Person" shall mean 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
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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.
"United States Securities Person" shall mean any "U.S. person"
as defined in Rule 902(k) of Regulation S.
"Unrestricted Servicer Reports" shall mean each of the
Delinquent Loan Status Report, Historical Loan Modification Report, Historical
Liquidation Report, REO Status Report and Loan Payoff Notification Report.
"Voting Rights" shall mean 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" shall mean, 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.
"Workout Fee" shall mean, 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" shall mean, with respect to each Corrected
Loan as to which a Workout Fee is payable, 1.0%.
"Yield Maintenance Charge" shall mean the payments paid or
payable, as the context requires, on a Mortgage Loan as the result of a
Principal Prepayment thereon, not otherwise due thereon in respect of principal
or interest, which have been calculated (based on scheduled payments of interest
and/or principal on such Mortgage Loan) to compensate the holder for
reinvestment losses based on the value of an interest rate index at or near the
time of prepayment. Any other prepayment premiums, penalties and fees not so
calculated will not be considered "Yield Maintenance Charges". In the event that
a Yield Maintenance Charge shall become due for any particular Mortgage Loan,
the Master Servicer shall be required to follow the terms and provisions
contained in the applicable Mortgage Note, provided, however, in the event the
particular Mortgage Note shall not specify the U.S. Treasuries which shall be
used in determining the discount rate or the reinvestment yield to be applied in
such calculation, the Master Servicer shall be required to use those U.S.
Treasuries which shall generate the lowest 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
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the remaining average life of the Mortgage Loan or the actual term remaining
through the related Stated Maturity Date or Anticipated Repayment Date, as
applicable), 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 GAAP;
(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-C4". 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. The parties hereto acknowledge and agree that, notwithstanding Section
11.07, the transfer of the Mortgage Loans and the related rights and property
accomplished hereby is absolute and is intended by them 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 UBSPF (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).
After the Depositor's transfer of the Mortgage Loans to the
Trustee pursuant to this Section 2.01(b), the Depositor shall not take any
action inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The Depositor hereby represents and warrants that it has
retained or caused to be retained, with respect to each LBHI Mortgage Loan, and
UBSPF has covenanted in the UBS/Depositor Mortgage Loan Purchase Agreement that
it shall retain with respect to each UBS Mortgage Loan, an Independent Person
for purposes of promptly (and in any event within 45 days following the later of
the Closing Date and the date on which all necessary recording or filing, as
applicable, information is available to that Independent Person) recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, as appropriate, each related 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 related
UCC-2 and UCC-3 assignment referred to in clause (viii) of the definition of
"Mortgage File". The Depositor hereby represents and warrants that it has
deposited or caused to be deposited, with respect to each LBHI Mortgage Loan,
and UBSPF has covenanted in the UBS/Depositor Mortgage Loan Purchase Agreement
that it shall deposit, with respect
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to each UBS Mortgage Loan, in each case with the Independent Person retained by
such party to record and/or file assignments and other instruments of transfer
relating to the LBHI Mortgage Loans, in the case of the Depositor, and the UBS
Mortgage Loans, in the case of UBSPF, a cash escrow amount to be applied toward
such recording and filing of assignments and other documents of transfer, which
cash escrow amount has been determined by the party making each such escrow
deposit to be sufficient for such purpose.
Notwithstanding the foregoing, the Depositor may, in the case
of an LBHI Mortgage Loan, and UBSPF may, in the case of a UBS Mortgage Loan,
request the Trustee to record or file, as applicable, any of the assignments of
Mortgage, assignments of Assignment of Leases or UCC Financing Statements
referred to above, and in such event, the requesting party shall cause any such
unrecorded or unfiled document to be delivered to the Trustee. The Trustee shall
promptly undertake to record or file any such document upon its receipt thereof.
The Depositor shall bear the cost of the recording and filing
referred to in the prior two paragraphs with respect to the LBHI Mortgage Loans,
and the Depositor represents and warrants that the UBS/Depositor Mortgage Loan
Purchase Agreement provides that UBSPF shall bear the cost of the recording and
filing referred to in the prior two paragraphs with respect to the UBS Mortgage
Loans. Each assignment referred to in the prior two paragraphs shall reflect
that it should be returned by the public recording office to the Trustee or its
agent following recording, and each UCC-2 and UCC-3 assignment referred to in
the prior two paragraphs 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 UBSPF (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 UBSPF or the Depositor, cause the
same to be duly recorded or filed, as appropriate.
The Depositor hereby represents and warrants that it has
contractually obligated each of UBSPF and LBHI, pursuant to the related Mortgage
Loan Purchase Agreement, to provide the Trustee and the Master Servicer with a
power of attorney to enable the Trustee to record, at the expense of the
Depositor, in the case of an LBHI Mortgage Loan, or at the expense of UBSPF, in
the case of a UBS Mortgage Loan, any loan documents that, as contemplated by the
foregoing paragraphs of this Section 2.01(c) and/or the definition of "Mortgage
File", are to be recorded and that the Trustee has been requested to record.
(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 UBSPF (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
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Servicer, on or before the Closing Date, all documents and records in the
possession of UBSPF or the Depositor, as the case may be, that relate to such
Mortgage Loan and that are not required to be a part of the related Mortgage
File in accordance with the definition thereof, together (i) with all unapplied
Escrow Payments and Reserve Funds in the possession of UBSPF or the Depositor,
as the case may be, that relate to such Mortgage Loan and (ii) a statement
indicating which Escrow Payments and Reserve Funds are allocable 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.
(e) It is not intended that this Agreement create a
partnership or a joint-stock association.
SECTION 2.02. Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this
Agreement, hereby accepts receipt, directly or through a Custodian on its
behalf, of (i) the Mortgage Loans and all documents delivered to it that
constitute portions of the related Mortgage Files and (ii) all other assets
delivered to it and included in the Trust Fund, in good faith and without notice
of any adverse claim, and declares that it or a Custodian on its behalf holds
and will hold such documents and any other documents subsequently received by it
that constitute portions of the Mortgage Files, and that it holds and will hold
the Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
In connection with the foregoing, the Trustee hereby certifies to each of the
other parties hereto, each Mortgage Loan Seller and each Underwriter that, as to
each Mortgage 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
original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of
such Mortgage Note) received by it or any Custodian with respect to such
Mortgage Loan 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.
(b) On or about the 45th day following the Closing Date (and,
if any exceptions are noted, again on or about the 90th day following the
Closing Date and monthly thereafter until the earliest of (i) the second
anniversary of the Closing Date, (ii) the day on which all material exceptions
have been removed and (iii) the day on which the Depositor has repurchased the
last affected Mortgage Loan), the Trustee or a Custodian on its behalf shall
review the documents delivered to it or such Custodian with respect to each
Mortgage Loan, and the Trustee shall, subject to Sections 2.01, 2.02(c) and
2.02(d), certify in writing (substantially in the form of Exhibit C hereto) to
each of the other parties hereto, each Mortgage Loan Seller and each Underwriter
that, as to each Mortgage Loan then subject to this Agreement (except as
specifically identified in any exception report annexed to such certification):
(i) all documents specified in clauses (i) through (v), (vii) and (viii)
(without regard to the second parenthetical in such clause (viii)) of the
definition of "Mortgage File" are in its possession or the possession of a
Custodian on its behalf; (ii) the recordation/filing contemplated by Section
2.01(c) has been completed (based solely on receipt by the Trustee of the
particular recorded/filed documents); (iii) all documents received by it or any
Custodian with respect to such Mortgage Loan have been reviewed by it or by such
Custodian on its behalf and (A) appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Mortgagor), (B) appear to
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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 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 delivered to it to determine that the same are valid,
legal, effective, genuine, binding, enforceable, sufficient or appropriate for
the represented purpose or that they are other than what they purport to be on
their face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) 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 Sections 2.02(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; the Special Reserve Account.
(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 UBSPF 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"),
such party shall give prompt written notice thereof to each of the Rating
Agencies, the related Mortgage Loan Seller, the other parties hereto and the
Controlling Class Representative. If any such Document Defect or Breach
materially and adversely affects the value of any Mortgage Loan or the interests
of the Certificateholders therein, then such Document Defect shall constitute a
"Material Document Defect" or such Breach shall constitute a "Material Breach",
as the case may be. Promptly upon becoming aware of any such Material Document
Defect or Material Breach with respect to a UBS Mortgage Loan (including through
a written notice given by any party hereto, as provided above), the Trustee
shall (and the Special Servicer may) require UBSPF, within the time period and
subject to the conditions provided for in the UBS/Depositor
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Mortgage Loan Purchase Agreement, to cure such Material Document Defect or
Material 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 Custodial Account. A copy of each of the foregoing requests for repurchase
shall be delivered to the Controlling Class Representative. Promptly upon
becoming aware of any such Material Document Defect or Material Breach with
respect to an 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
Material Document Defect or Material Breach, as the case may be (or, in the case
of a Material Document Defect or Material 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 Material
Document Defect or Material Breach) (any such 90-day period, the "Initial
Resolution Period"), cure the same in all material respects (which cure shall
include payment of losses and any Additional Trust Fund Expenses associated
therewith) or, if such Material Document Defect or Material Breach, as the case
may be, cannot be cured within the Initial Resolution Period, repurchase the
affected LBHI Mortgage Loan at the applicable Purchase Price by wire transfer of
immediately available funds to the Custodial Account; provided, however, that if
(i) such Material Document Defect or Material Breach is capable of being cured
but not within the Initial Resolution Period, (ii) such Material Document Defect
or Material Breach is not related to any LBHI Mortgage Loan's failure to be 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
Material Document Defect or Material Breach within the Initial Resolution
Period, then the Depositor shall have an additional period equal to the
applicable Resolution Extension Period 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's receiving a Resolution Extension
Period, the Depositor shall deliver an Officer's Certificate to the Trustee
setting forth the reasons such Material Document Defect or Material Breach is
not capable of being cured within the Initial Resolution Period and what actions
the Depositor is pursuing in connection with the cure thereof and stating that
the Depositor anticipates that such Material Document Defect or Material Breach
will be cured within the Resolution Extension Period). Without limiting any of
the foregoing, (A) the absence of an original Mortgage Note, an original or a
copy of a Mortgage (with or without evidence of recording thereon), an original
or a copy of a lender's title insurance policy, an Assignment of Leases (with or
without evidence of recording thereon, but only if separate from the related
Mortgage) or, in the case of a Mortgage Loan secured by a hospitality or
healthcare property, a filed UCC-1 financing statement, from a Mortgage File or
(B) any material adverse nonconformity to the Mortgage Loan Schedule of any such
document or any material irregularity on the face thereof (without the presence
of a factor, such as a lost note affidavit (in the case of a missing Mortgage
Note) or a pro forma title policy or a commitment for title insurance
"marked-up" at the closing of the subject Mortgage Loan (in the case of a
missing title policy), that, in the Trustee's reasonable and good faith
judgment, as certified in writing to the Master Servicer, the Special Servicer
and the Controlling Class Representative within 20 days after a Responsible
Officer of the Trustee has actual knowledge of such absence, nonconformity or
irregularity, mitigates the subject absence, nonconformity or irregularity)
shall be a Material Document Defect. Notwithstanding the foregoing, if a
Mortgage Loan is not secured by a hospitality or healthcare property, then the
failure to file UCC Financing Statements with respect to such Mortgage Loan
shall not be a Material Document Defect.
If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Depositor
or UBSPF as contemplated by this Section 2.03(a), then, prior to the subject
repurchase, the Depositor or UBSPF, as the case may be, or its designee shall
use its reasonable efforts, subject to the terms of the related Mortgage
Loan(s), to prepare and, to the extent
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necessary and appropriate, have executed by the related Mortgagor and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loan(s) in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loan(s) therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that no such termination shall be effected
unless and until the Controlling Class Representative, if one is then acting,
has consented (which consent shall not be unreasonably withheld) and the Trustee
has received from the Depositor or UBSPF, as the case may be, (i) an Opinion of
Counsel to the effect that such termination would not cause an Adverse REMIC
Event to occur with respect to any REMIC Pool or an Adverse Grantor Trust Event
to occur with respect to the Grantor Trust and (ii) written confirmation from
each Rating Agency that such termination would not cause an Adverse Rating Event
to occur with respect to any Class of Certificates; and provided, further, that
the Depositor, in the case of LBHI Mortgage Loans, or UBSPF, in the case of UBS
Mortgage Loans, may, at its option, purchase the entire subject
Cross-Collateralized Group in lieu of effecting a termination of the
cross-collateralization. All costs and expenses incurred by the Trustee or any
Person on its behalf pursuant to this paragraph shall be included in the
calculation of the Purchase Price for the Mortgage Loan(s) to be repurchased. If
the cross-collateralization of any Cross-Collateralized Group cannot be
terminated as contemplated by this paragraph, then, for purposes of (i)
determining the materiality of any Breach or Defect, as the case may be, and
(ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
(b) In connection with any repurchase of a Mortgage Loan
pursuant to this Section 2.03, the Trustee, the Custodian, the Master Servicer
and the Special Servicer shall each tender to the 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(b), 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. Section 2.03(a) 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
LBHI Mortgage Loan.
(d) If, as set forth in Section 2.03(e) below, the Master
Servicer, the Special Servicer or the Trustee has notified the Depositor of one
or more conditions that will become Recording/Title Policy Omissions with
respect to one or more LBHI Mortgage Loans on March 28, 2002, if not earlier
corrected, then, if requested by the Master Servicer, the Depositor shall, on or
about the later of the 60th
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day following such notice and March 28, 2002, with respect to each LBHI Mortgage
Loan as to which there then exists a Recording/Title Policy Omission, deliver to
the Master Servicer a Recording/Title Policy Omission Cash Deposit or a
Recording/Title Policy Omission Credit, in any event in an amount equal to 10%
of the then outstanding principal balance of such LBHI Mortgage Loan. If, as of
September 28, 2002, a Recording/Title Policy Omission still exists with respect
to any LBHI Mortgage Loan, the Depositor shall, if requested by the Master
Servicer, increase the amount of the Recording/Title Policy Omission Cash
Deposit or the Recording/Title Policy Omission Credit, as applicable, maintained
with the Master Servicer with respect to such LBHI Mortgage Loan, such increase
to be in an amount equal to 10% of the then outstanding principal balance of
such LBHI Mortgage Loan. The Depositor may direct the Master Servicer to invest
or cause the investment of the funds deposited by it in the Special Reserve
Account in one or more Permitted Investments that bear interest or are sold at a
discount and that mature, unless payable on demand, no later than the Business
Day prior to the next Master Servicer Remittance Date. The Master Servicer shall
act upon the written instructions of the Depositor with respect to the
investment of funds deposited by the Depositor in the Special Reserve Account in
such Permitted Investments, provided that in the absence of appropriate written
instructions from the Depositor, the Master Servicer shall have no obligation to
invest or direct the investment of funds in such Special Reserve Account. All
income and gain realized from the investment of funds deposited in such Special
Reserve Account shall be for the benefit of the Depositor and shall be withdrawn
by the Master Servicer and remitted to the Depositor on each Master Servicer
Remittance Date (net of any losses incurred), and the Depositor shall remit to
the Master Servicer from the Depositor's own funds for deposit into such Special
Reserve Account the amount of any realized losses (net of realized gains) in
respect of such Permitted Investments immediately upon realization of such net
losses and receipt of written notice thereof from the Master Servicer; provided
that the Depositor shall not be required to make any such deposit for any
realized loss which is incurred solely as a result of the insolvency of the
federal or state depository institution or trust company that holds such Special
Reserve Account. The Master Servicer shall have no responsibility or liability
with respect to the investment directions of the Depositor, the investment of
funds in the Special Reserve Account in Permitted Investments or any losses
resulting therefrom. A Recording/Title Policy Omission Credit shall (i) entitle
the Master Servicer to draw upon the Recording/Title Policy Omission Credit upon
presentation of only a sight draft or other written demand for payment, (ii)
permit multiple draws by the Master Servicer, and (iii) be issued by such issuer
and containing such other terms as the Master Servicer may reasonably require to
make such Recording/Title Policy Omission Credit reasonably equivalent security
to a Recording/Title Policy Omission Cash Deposit in the same amount. Once a
Recording/Title Policy Omission Cash Deposit or Recording/Title Policy Omission
Credit is established by the Depositor with respect to any LBHI Mortgage Loan,
the Master Servicer shall, from time to time, withdraw funds from the Special
Reserve Account or draw upon the related Recording/Title Policy Omission Credit,
as the case may be, and apply the proceeds thereof to pay the losses or expenses
directly incurred by the Master Servicer as a result of a Recording/Title Policy
Omission in respect of such LBHI Mortgage Loan. The Recording/Title Policy
Omission Cash Deposit or Recording/Title Policy Omission Credit established by
the Depositor or any unused balance thereof with respect to any LBHI Mortgage
Loan shall be released to the Depositor by the Master Servicer upon the earlier
of the Depositor's cure of all Recording/Title Policy Omissions with respect to
such LBHI Mortgage Loan (provided that the Master Servicer has been reimbursed
with respect to all losses and expenses relating to Recording/Title Policy
Omissions with respect to such LBHI Mortgage Loan) or such LBHI Mortgage Loan no
longer being a part of the Trust Fund. The rights to require and apply the
proceeds of a Recording/Title Policy Omission Cash Deposit or Recording/Title
Policy Omission Credit with respect to an LBHI Mortgage Loan under this Section
2.03(d) are in addition to the rights afforded in respect of a Material Breach
or a Material Document Defect under Section 2.03(a), and the exercise of rights
with
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respect to an LBHI Mortgage Loan under this Section 2.03(d) shall not preclude
or otherwise limit the exercise of rights afforded in respect of a Material
Breach or a Material Document Defect in respect of an LBHI Mortgage Loan under
Section 2.03(a) or constitute a waiver thereof.
(e) If the Master Servicer, the Special Servicer or the
Trustee has identified as of January 28, 2002, one or more conditions that will
become Recording/Title Policy Omissions with respect to any LBHI Mortgage Loan
or UBS Mortgage Loan on March 28, 2002, if not earlier corrected, such party
shall, on or about January 28, 2002 (or, if such day is not a Business Day, the
next succeeding Business Day), provide written notification of the conditions
that could become Recording/Title Policy Omissions to the other parties hereto,
the Controlling Class Representative, the Depositor and, in the case of a
Recording/Title Policy Omission with respect to a UBS Mortgage Loan, UBSPF. On
or about March 28, 2002, the Master Servicer shall, if requested by the
Controlling Class Representative, exercise the rights afforded to the Master
Servicer: (i) under the UBS/Depositor Mortgage Loan Purchase Agreement to cause
UBSPF to establish a Recording/Title Policy Omission Cash Deposit or
Recording/Title Policy Omission Credit with respect to each UBS Mortgage Loan,
if any, that then has a Recording/Title Policy Omission; and (ii) under Section
2.03(d) to cause the Depositor to establish a Recording/Title Policy Omission
Cash Deposit or Reserve/Title Policy Credit with respect to each LBHI Loan that
then has a Recording/Title Policy Omission. On or about September 28, 2002, if a
Recording/Title Policy Omission still exists with respect to any Mortgage Loan,
then the Master Servicer shall, if requested by the Controlling Class
Representative, require the Depositor, in the case of an LBHI Mortgage Loan, or
UBSPF, in the case of a UBS Mortgage Loan, to increase the amount of the related
Recording/Title Policy Cash Deposit or Recording/Title Policy Credit, as
applicable, maintained with the Master Servicer, in an amount equal to 10% of
the then outstanding principal balance of such LBHI Mortgage Loan or UBS
Mortgage Loan, as the case may be. In furtherance of the preceding sentence, (A)
the Master Servicer shall establish one or more accounts (collectively, the
"Special Reserve Account"), each of which shall be an Eligible Account; (B) the
Master Servicer shall deposit any Recording/Title Policy Omission Cash Deposit
into the Special Reserve Account within one Business Day after receipt; and (C)
the Master Servicer shall administer the Special Reserve Account in accordance
with the terms of Section 2.03(d) in the case of any Recording/Title Policy
Omission Cash Deposit with respect to the LBHI Mortgage Loans and in accordance
with the UBS/Depositor Mortgage Loan Purchase Agreement in the case of any
Recording/Title Policy Omission Cash Deposit with respect to the UBS Mortgage
Loans. Out-of-pocket costs and expenses incurred by the Master Servicer in
enforcing such rights will constitute Servicing Advances to the extent not
received from the Depositor, with respect to LBHI Mortgage Loans, or UBSPF, with
respect to UBS Mortgage Loans. In the event that the Master Servicer is entitled
to withdraw any funds from the Special Reserve Account or to draw upon a
Recording/Title Policy Omission Credit to cover losses or expenses directly
incurred by the Trust Fund as a result of a Recording/Title Policy Omission,
then prior to making a Servicing Advance or incurring an Additional Trust Fund
Expense to cover such losses or expenses, the Master Servicer shall deposit the
funds withdrawn from the Special Reserve Account or received in connection with
a draw upon the Recording/Title Policy Omission Credit, as the case may be, into
the Custodial Account, and such amounts shall be deemed to be "Liquidation
Proceeds" for purposes of this Agreement (other than Section 3.11(c)) and shall
be applied to cover such loss or expense. The Recording/Title Policy Omission
Cash Deposit or Recording/Title Policy Omission Credit (or any unused balance
thereof) delivered by UBSPF with respect to any UBS Mortgage Loan shall be
released to UBSPF by the Master Servicer upon the earlier of the curing of all
Recording/Title Policy Omissions with respect to such UBS Mortgage Loan and the
removal of such Mortgage Loan from the Trust Fund. The Recording/Title Policy
Omission Cash Deposit or Recording/Title Policy Omission Credit (or any unused
balance thereof) delivered by the Depositor with respect to any LBHI Mortgage
Loan shall be
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released to the Depositor by the Master Servicer upon the earlier of the curing
of all Recording/Title Policy Omissions with respect to such LBHI Mortgage Loan
and the removal of such Mortgage Loan from the Trust Fund. The Special Reserve
Account, and any Recording/Title Policy Omission Cash Deposits and
Recording/Title Policy Omission Credits, shall be part of the Trust Fund but
outside any REMIC Pool or the Grantor Trust. Investment of the funds in Special
Reserve Account deposited by the Depositor pursuant to Section 2.03(d) shall be
governed by the provisions of Section 2.03(d), and the investment of funds in
the Special Reserve Account deposited by UBSPF pursuant to the UBS/Depositor
Mortgage Loan Purchase Agreement shall be governed by the provisions of the
UBS/Depositor Mortgage Loan Purchase Agreement.
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.
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(vii) The Depositor is not transferring the Mortgage Loans to
the Trustee with any intent to hinder, delay or defraud its present
or future creditors.
(viii) The Depositor has been solvent at all relevant times
prior to, and will not be rendered insolvent by, its transfer of the
Mortgage Loans to the Trustee pursuant to Section 2.01(b).
(ix) After giving effect to its transfer of the Mortgage Loans
to the Trustee pursuant to Section 2.01(b), the value of the
Depositor's assets, either taken at their present fair saleable value
or at fair valuation, will exceed the amount of the Depositor's debts
and obligations, including contingent and unliquidated debts and
obligations of the Depositor, and the Depositor will not be left with
unreasonably small assets or capital with which to engage in and
conduct its business.
(x) The Depositor does not intend to, and does not believe
that it will, incur debts or obligations beyond its ability to pay
such debts and obligations as they mature.
(xi) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or
contemplated.
(xii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor that, if
determined adversely to the Depositor, would prohibit the Depositor
from entering into this Agreement or that, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express
responsibility of another party hereunder or under the Mortgage Loan
Purchase Agreements, and further except for actions that the
Depositor is expressly permitted to complete subsequent to the
Closing Date, the Depositor has taken all actions required under
applicable law to effectuate the transfer of the Mortgage Loans by
the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Mortgage
Loans to the Trust pursuant to this Agreement (and assuming that
UBSPF 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 UBS Mortgage Loan; and
(B) the Depositor has full right and authority to sell, assign and
transfer the UBS Mortgage Loans, exclusive of the servicing rights
pertaining thereto.
(xv) Attached hereto as Exhibit Z are true, correct and
complete copies of the Depositor's organizational documents in effect
as of the Closing Date.
(xvi) As of the Closing Date, the Depositor shall hold the
Class H, Class J, Class K, Class L, Class M, Class N and Class P
Certificates, and the Depositor shall not transfer its interest in
such Certificates to any Affiliate unless (A) it is for prompt resale
to an Independent third party or (B) it delivers to each Rating
Agency an Opinion of Counsel to the effect that such Affiliate would
not be consolidated with Lehman Brothers or LBHI in the
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event of an insolvency of Lehman Brothers, LBHI or any particular
equity holder holding a 49% or greater equity interest in such
Affiliate.
(b) The Depositor hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, with
respect to each 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, and the Mortgage Loan Schedule meets
the requirements of this Agreement in all material respects.
(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. No
action has been taken by the Depositor or, to its knowledge, any
prior holder of such Mortgage Loan, that would cause the
representations and warranties made by the related Mortgagor in the
related Mortgage Loan documents not to be true and correct in any
material respect.
(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,
encumbrances 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 and effectively 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. Such
Mortgage Loan is properly endorsed as provided in this Agreement and
such endorsement is genuine.
(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 and instruments
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 enforcement is considered in a proceeding in equity or at law),
and (in the case of the related Mortgage Note, Mortgage(s) and
Assignment(s) of Leases) 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.
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(vi) As of the date of its origination, there was no valid
offset, defense, counterclaim or right to rescission with respect to
any of the related Mortgage Note, Mortgage(s) or other agreements
executed in connection therewith; and, as of the Cut-off Date, to the
Depositor's knowledge, including based on due diligence performed at
the time of origination of such Mortgage Loan that was the type of
due diligence customarily performed by prudent institutional
commercial and multifamily mortgage lenders, there is no valid
offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements; and, to the
knowledge of the Depositor, no such claim has been asserted.
(vii) The assignment of the related Mortgage(s) and
Assignment(s) of Leases to the Trustee constitutes the legal, valid,
binding and enforceable assignment of such documents in accordance
with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
(viii) Each related Mortgage is a valid and, subject to the
limitation in paragraph (v) above, 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, ground rents (if applicable), water
charges and sewer rents 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)
exceptions and exclusions specifically referred to in the lender's
title policy, a pro forma title policy or a marked-up commitment
issued with respect to such Mortgage Loan (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 currently operated as a hospitality or healthcare
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 being consistent with the practices of
prudent commercial mortgage lenders), which personal property
includes, in the case of healthcare facilities and hotel
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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, assessments for improvements and similar
charges that (A) could become a lien on any related Mortgaged
Property of priority equal to or higher than the lien of the related
Mortgage and (B) 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, except as indicated on Schedule III-xi, 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 qualified or licensed
in the applicable jurisdiction, as required, insuring the originator
of such Mortgage Loan, its successors and assigns, that each related
Mortgage constitutes 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 such title insurer to
issue such policy; such title insurance policy (or, if not issued,
the coverage to be provided thereby) 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, without the
consent of the insurer; no claims have been made under such title
insurance; and neither the Depositor nor, to the best of the
Depositor's knowledge, any prior mortgagee has done, by act or
omission, anything that would materially impair the coverage of any
such title insurance policy, and the Depositor has no knowledge of
any fact or circumstance that would impair such coverage; 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 related Mortgaged Property, and (C) that
the area shown on the survey materially conforms to the legal
description of the related Mortgaged Property. The related Mortgage
has been submitted for recordation in the applicable jurisdiction,
the full amount of the related Mortgage has been recorded on the
related Mortgaged Property and all applicable
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mortgage recording taxes have been paid. If the related Mortgaged
Property consists of more than one parcel used as a single tract,
then either (A) such parcels are contiguous or (B) the failure of
such parcels to be contiguous does not materially and adversely
interfere with the benefits of the security intended to be provided
by the related Mortgage or materially and adversely interfere with
the current use or operation of the related 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; the related Mortgage
required that such insurance covered (except where a Credit Tenant
under a Credit Tenant 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 in "seismic
zone" 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; it is an event of default under such Mortgage
Loan if the above-described insurance coverage is not maintained by
the related Mortgagor, and any reasonable out-of-pocket costs and
expenses incurred by the mortgagee in connection with such default in
obtaining such insurance coverage are recoverable from the related
Mortgagor; 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; the
insurance policies specified in clauses (A),(B) and (C) above 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, and
subject to any rights of the lessor under any related Ground Lease,
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.
If the related Mortgaged Property is located in the State of
California or in "seismic zone" 3 or 4, then: (A) either a seismic
assessment was conducted with respect to the related Mortgaged
Property in connection with the origination of such Mortgage Loan or
earthquake insurance was obtained; and (B) except as otherwise
identified on Schedule III-xiii hereto, the probable maximum loss for
the related Mortgaged Property as
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reflected in such seismic assessment, if any, was determined based
upon a return period of not less than 100 years, an exposure period
of 50 years and a 10% probability of incidence.
If any portion of the improvements on the related Mortgaged
Property was, at the time of origination, in an area identified in
the Federal Register by the Federal Emergency Management Agency as
having special flood hazards falling within zones A or V in the
national flood insurance program (an "SPF Area"), and flood insurance
was available, a flood insurance policy meeting the then current
guidelines of the Federal Insurance Administration is in effect with
a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (1) the outstanding principal
balance of such Mortgage Loan, (2) the full insurable actual cash
value of those improvements located on the related Mortgaged Property
that are, in whole or in part, in an SPF Area, (3) the maximum amount
of insurance available under the National Flood Insurance Act of
1968, as amended, and (4) 100% of the insurable replacement cost of
those improvements located on the related Mortgaged Property that
are, in whole or in part, in an SPF Area.
(xiv) Other than payments due but not yet 30 days or more
delinquent, there is, to the best of the Depositor's knowledge, (A)
no material default, breach, violation or event of acceleration
existing under the related Mortgage Note, the related Mortgage or
other loan documents relating to such Mortgage Loan, and (B) no event
which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a material default,
breach, violation or event of acceleration under any of such
documents; provided, however, that this representation and warranty
does not cover any default, breach, violation or event of
acceleration that specifically pertains to or arises out of the
subject matter otherwise covered by any other representation or
warranty made by the Depositor in this Section 2.04(b). The Depositor
has not waived (and, to its knowledge, no prior holder has) 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
since the date of origination has not been, 30 days or more past due
in respect of any Scheduled Payment (without giving effect to any
grace period).
(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 throughout
the remaining term of such Mortgage Loan (except if such Mortgage
Loan is an ARD 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 any related
Mortgaged Property to secure any other promissory note or obligation
(other than another Mortgage Loan in the Trust), without either (A)
the prior written consent of the holder of such Mortgage Loan or (B)
the satisfaction of conditions such as the execution and delivery of
a subordination and standstill agreement and a minimum combined debt
service coverage ratio.
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(xviii) Such Mortgage Loan is or constitutes part of a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code. Accordingly, (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date such
Mortgage Loan was originated at least equal to 80% of the original
principal balance of such Mortgage Loan or (2) at the Closing Date at
least equal to 80% of the principal balance of such Mortgage Loan on
such date; provided that for purposes hereof, the fair market value
of the real property interest must first be reduced by (X) the amount
of any lien on the real property interest that is senior to the
Mortgage Loan, and (Y) a proportionate amount of any lien that is in
parity with such Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such Mortgage Loan,
in which event the computation described in clauses (A)(1) and (A)(2)
of this paragraph (xviii) shall be made on a pro rata basis in
accordance with the fair market values of the Mortgaged Properties
securing such cross-collateralized Mortgage Loans); or (B)
substantially all the proceeds of such Mortgage Loan were used to
acquire, improve or protect the real property which served as the
only security for such Mortgage Loan (other than a recourse feature
or other third-party credit enhancement within the meaning of
Treasury regulation Section 1.860G-2(a)(1)(ii)). Such Mortgage Loan
does not permit the release or substitution of collateral if such
release or substitution (a) would constitute a "significant
modification" of such Mortgage Loan within the meaning of Treasury
regulation Section 1.1001-3, (b) would cause such Mortgage Loan not
to be a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code (without regard to clauses (A)(i) or (A)(ii) thereof) or
(c) would cause a "prohibited transaction" within the meaning of
Section 860F(a)(2) of the code.
(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-xx, 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 such assessment(s), 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 identify any circumstances or conditions that
would (A) constitute or result in a violation of any applicable
environmental laws, (B) require any expenditure material in relation
to the principal balance of such Mortgage Loan to achieve or maintain
compliance in all material respects with any environmental laws, or
(C) require substantial cleanup, remedial action or other material
response under any environmental laws, or if such report does
identify 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.
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If such Mortgage Loan has a Cut-off Date Balance in excess of
$15,000,000, then: (A) the Mortgagor with respect to such Mortgage
Loan has represented, warranted and covenanted that, to its
knowledge, except as set forth in the environmental reports described
above, it has not used, caused or permitted to exist, and will not
use, cause or permit to exist, on the related Mortgaged Property, any
Hazardous Materials in any manner which violates applicable federal,
state or local laws governing the use, storage, handling, production
or disposal of Hazardous Materials at the related Mortgaged Property;
and (B) the related Mortgagor or an Affiliate thereof has agreed to
indemnify the mortgagee under such Mortgage Loan against any losses,
liabilities, damages, claims and reasonable out-of-pocket expenses
suffered or incurred by such Mortgagee resulting from a breach of
certain of those representations and warranties or covenants given by
the related Mortgagor in connection with such Mortgage Loan.
The Depositor has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject
the Depositor or its successors and assigns in respect of the
Mortgage Loan to liability under CERCLA or any other applicable
federal, state or local environmental law. The related Mortgage or
other loan documents require the Mortgagor to comply with all
applicable federal, state and local environmental laws and
regulations.
(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
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 Depositor's knowledge, including based on due
diligence performed at the time of origination of such Mortgage Loan
that was the type of due diligence customarily performed by prudent
institutional commercial and multifamily mortgage lenders, the
related Mortgagor is not (and, at the time of origination of such
Mortgage Loan, was 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, pursuant to a Ground Lease, a leasehold
estate in a commercial property or multifamily property, including
the related Mortgagor's interest in the improvements on the related
Mortgaged Property. If the related Mortgaged Property is identified
on the Mortgage Loan Schedule as Pike Shopping Center, then such
Mortgage Loan is the only Mortgage Loan that is secured by a Mortgage
solely on a leasehold interest under a Ground Lease.
(xxiv) Such Mortgage Loan does not provide for negative
amortization unless such Mortgage Loan is an ARD Loan, in which case
it may occur only after the related 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
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interest in the form of participation in the cash flow of the related
Mortgaged Property. Other than through foreclosure or similar
enforcement proceedings, the indebtedness evidenced by such Mortgage
Loan is not convertible into an ownership interest in the related
Mortgaged Property or the related Mortgagor.
(xxvi) Unless such Mortgage Loan is one of the Mortgage Loans
secured by the Mortgaged Properties identified on the Mortgage Loan
Schedule as Willow Way Apartments, Sandstone Apartments, Mazda
Distribution Facility and City Villas, 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 encumbered by a lien in connection with
subordinate or pari passu financing; and no such consent has been
granted by the Depositor. If such Mortgage Loan is one of the
Mortgage Loans secured by the Mortgaged Properties identified on the
Mortgage Loan Schedule as Willow Way Apartments, Sandstone
Apartments, Mazda Distribution Facility and City Villas, the related
Mortgage contains provision for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if the related
Mortgaged Property or any interest therein is encumbered by a lien in
connection with subordinate financing without the related Mortgagor
having satisfied certain conditions specified in the related Mortgage
with respect to secured subordinate financing. To the Depositor's
knowledge, including based on due diligence performed at the time of
origination of such Mortgage Loan that was the type of due diligence
customarily performed by prudent institutional commercial and
multifamily mortgage lenders, no related Mortgaged Property is
encumbered by a lien in connection with subordinate or pari passu
financing; however, if the related Mortgagor is listed on Schedule
III-xxvi 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 and/or minority 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).
(xxviii) Unless such Mortgage Loan is one of the Mortgage
Loans secured by the Mortgaged Properties identified on the Mortgage
Loan Schedule as Westfield Shoppingtown South Shore, Westfield
Shoppingtown Plaza Camino Real, Johnson City Mall or Georgesville
Square, such Mortgage Loan, together with any other Mortgage Loan
made to the same
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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 a written instrument included 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; and no instrument that is
not part of the related Mortgage File has been executed that would
effect any such waiver, modification, satisfaction, cancellation,
rescission or release.
(xxx) Unless such Mortgage Loan is a CTL Loan, each related
Mortgaged Property was inspected by or on behalf of the related
originator during the seven-month period prior to the related
origination date.
(xxxi) Except in cases where either (A) a release of a portion
of the related Mortgaged Property was contemplated at origination of
the Mortgage Loan and such portion was not considered material for
purposes of underwriting the Mortgage Loan, (B) the release is
conditioned upon the satisfaction of certain underwriting and legal
requirements or the payment of a release price or (C) or the release
is conditioned on the delivery, in accordance with the terms of the
Mortgage Loan documents, of Defeasance Collateral in the form of U.S.
government securities, the related Mortgage Note or Mortgage does not
require the holder thereof to release all or any portion of the
related Mortgaged Property from the lien of the related Mortgage
except upon payment in full of all amounts due under such Mortgage
Loan.
(xxxii) The related Mortgagor has covenanted in the Mortgage
Loan documents to maintain the related Mortgaged Property in
compliance in all material respects 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,
opinions, letters from municipalities 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 or across any easements
to an extent which would have a material adverse affect on the
related Mortgagor's current 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.
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(xxxiii) Unless such Mortgage Loan is a CTL 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 $15 million, the related Mortgagor is obligated by its
organizational documents and/or the related Mortgage Loan documents
to be a Special Purpose Entity for so long as such Mortgage Loan is
outstanding; and, except in the case of the Mortgage Loans identified
on Schedule III-xxxiv, if such Mortgage Loan has a Cut-off Date
Balance greater than $5 million and less than $15 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. For purposes of this representation,
"Special Purpose Entity" means an entity whose organizational
documents or the related Mortgage Loan documents provide
substantially to the effect that such entity: (A) is formed or
organized solely for the purpose of owning and operating one or more
of the Mortgaged Properties securing the related Mortgage Loan, (B)
may not engage in any business unrelated to the related Mortgaged
Property or Mortgaged Properties, (C) does not have any material
assets other than those related to its interest in and operation of
such Mortgaged Property or Mortgaged Properties, (D) may not incur
indebtedness other than as permitted by the related Mortgage or other
Mortgage Loan documents, (E) has its own books and records separate
and apart from any other Person, and (F) holds itself out as a legal
entity, separate and apart from any other Person.
(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, proceedings or governmental investigations 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 related Mortgaged Property following a default or in
connection with the release of liens securing such Mortgage Loan.
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(xl) If such Mortgage Loan is cross-collateralized, it is
cross-collateralized only with other Mortgage Loans in the Trust Fund
and so identified on the Mortgage Loan Schedule; and the security
interest/lien on each material item of collateral for such Mortgage
Loan has been assigned to the Trustee.
(xli) All liens on and security interests in any material
items of collateral securing such Mortgage Loan have been assigned to
the Trustee.
(xlii) Unless such Mortgage Loan is a CTL 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-xlii, more than 12
months), and the Depositor, having made no independent inquiry other
than to review the report(s) prepared in connection with such
assessment(s), 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 knowledge of the Depositor, including based on due
diligence performed at the time of origination of such Mortgage Loan
that was the type of due diligence customarily performed by prudent
institutional commercial and multifamily mortgage lenders, 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. If the related Mortgaged Property is improved by a hotel, the
most recent inspection report or survey by governmental authorities
having jurisdiction in connection with such licenses, permits and
authorizations, that is in the possession of the Depositor, did not
cite such Mortgaged Property for material violations that have not
been cured or as to which a plan of correction has not been submitted
to and accepted by such governmental authorities. In addition, if the
related Mortgaged Property is improved by a health care facility,
then attached hereto as Schedule III-xliv is, to the Depositor's
knowledge, the most recent inspection report or survey by
governmental authorities having jurisdiction in connection with such
licenses, permits and authorizations, that is in the possession of
the Depositor, and such report or survey did not cite such Mortgaged
Property for material violations that have not been cured or as to
which a plan of correction has not been submitted to and accepted by
such governmental authorities.
(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.
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(xlvi) Except as set forth in Schedule III-xlvi, 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:
(A) such Ground Lease or a memorandum thereof has been or
will be duly recorded (or, in the case of the Ground
Lease covering the parking lot that is part of the
Mortgaged Property identified on the Mortgage Loan
Schedule as Galleria Plaza (for the purposes of this
paragraph (xlvii), the "Galleria Plaza Ground Lease"),
the landlord's estoppel 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, any such action without such consent is
not binding on such mortgagee, its successors or assigns
(except that, in the case of the Galleria Plaza Ground
Lease, the mortgagee shall be deemed to consent to an
amendment or modification to such Ground Lease if it
fails to respond to a request for consent within 30
days), and neither the Depositor nor LBHI has consented
to any amendment or modification of such Ground Lease
that is not included in the related Mortgage File;
(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 knowledge of the Depositor, at the Cut-off 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;
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(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
(except in the case of the Galleria Plaza Ground Lease)
such Ground Lease, or an estoppel or consent letter
received by the mortgagee under such Mortgage Loan from
the lessor, further provides that either (1) 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) upon any
termination of such Ground Lease the lessor will enter
into a new lease with such mortgagee upon such
mortgagee's request;
(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 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 the leasehold interest in the related
Mortgaged Property evidenced by such Ground Lease;
(H) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including where necessary
sufficient time to gain possession of the interest of the
lessee under such Ground Lease or, in the case of the
Galleria Plaza Ground Lease, including a possible
extension, in the case of a non-monetary default by the
related Mortgagor, to the 90-day cure period) 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 20 years
beyond the Stated Maturity Date of the related Mortgage
Loan (or, if such Ground Lease covers the Mortgaged
Property identified on the Mortgage Loan Schedule as Pike
Shopping Center (for purposes of this paragraph (xlvii),
the "Pike Ground Lease") or is the Galleria Plaza Ground
Lease, such Ground Lease has an original term (without
regard to any extension options set forth therein) that
extends not less than 20 years beyond the Stated Maturity
Date of the related Mortgage Loan);
(J) under the terms of such Ground Lease, any estoppel or
consent letter received by the mortgagee 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
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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
or subleasing which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender,
except that the property subject to the Galleria Plaza
Ground Lease may only be used as a parking lot;
(L) upon the request of the mortgagee under such Mortgage
Loan, the ground lessor under the Pike Ground Lease is
required to enter into a new lease upon termination of
the Ground Lease prior to the expiration of the term
thereof, and in the case of the Galleria Plaza Ground
Lease, the ground lessor under such Ground Lease is
required to enter into a new lease upon termination of
such 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,
unless it is identified on Schedule III-xlix 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 must
be government securities within the meaning of Treasury Regulation
Section 1.860G-2(a)(8)(i) and must be sufficient to make all
scheduled payments under the related Mortgage Note when due (assuming
for each ARD 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, unless identified
on Schedule III-1, to make all scheduled payments under the related
Mortgage Note on that part of such Mortgage Loan
equal to at least 125% of the allocated loan amount of the portion of
the Mortgaged
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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 or as has been
terminated .
(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 or the eleventh 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 (v) 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 related Mortgaged Property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The
related Mortgage or such Assignment of Leases provides for the
appointment of a receiver for rents, or allows the mortgagee to enter
into possession to collect rents or provides for rents to be paid
directly to the mortgagee in the event of a default.
(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 CTL Loan, then:
(A) the base lease payments due under the related Credit
Tenant Lease, together with any escrow payments held by
the Depositor or its designee to be applied solely for
such purpose, 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 full amount of
the difference);
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(B) the related Mortgagor does not have monetary obligations
under the related Credit Tenant 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 Credit Tenant, except for
those monetary obligations that have been fully reserved
for;
(C) the related Mortgagor does not have any material
nonmonetary obligations under the related Credit Tenant
Lease, except for the delivery of possession of the
leased property;
(D) the related Mortgagor has not made any representation or
warranty in the related Credit Tenant Lease, a breach of
which would result in the termination of, or an offset
or abatement with respect to rent under, such Credit
Tenant Lease;
(E) the related Credit Tenant cannot terminate or abate
rental payments under the related Credit Tenant 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, except for a material default by the related
Mortgagor under such Credit Tenant Lease or due to a
casualty or condemnation event, in which case, a Lease
Enhancement Policy insures against each such risk;
(F) the related Credit Tenant has not been released, in
whole or in part, from its obligations under the related
Credit Lease; in the event the related Credit Tenant
assigns or sublets the related leased property, such
Credit Tenant (and if applicable, the related guarantor)
remains primarily obligated under the related Credit
Tenant Lease;
(G) except if such CTL Loan is one of the CTL Loans on
Schedule III-lvi(G), the related Credit 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
Credit Tenant's violation of the related Credit Tenant
Lease, or (III) any act or omission of the related
Credit Tenant;
(H) except if such CTL Loan is one of the CTL Loans on
Schedule III-lvi(H), the related Credit Tenant has
agreed to indemnify the related Mortgagor from any
claims of any nature arising as a result of any
environmental condition or hazardous material affecting
the leased property and due to such Credit Tenant's use
of the leased property;
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(I) in the event the related Credit Tenant Lease is
accompanied by a guaranty from a Rated Party, such
guaranty is legal, valid and binding against such Rated
Party, and except if such CTL Loan is one the CTL Loans
identified on Schedule III-lvi(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 Credit Tenant, and not only
of collection; and such guaranty may not be amended or
released without the consent of the mortgagee under such
CTL Loan;
(J) if such CTL Loan shall not be fully amortized by the
expiration of the related Credit Tenant Lease, such CTL
Loan has the benefit of a Residual Value Insurance
Policy;
(K) if such CTL 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 Tenant 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 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 CTL
Loan at the time a claim is made, plus accrued interest;
the effective date for each policy with respect to each
CTL Loan is the Closing Date; the termination date for
each policy with respect to each CTL Loan is on or after
the date upon which the outstanding principal balance of
the CTL Loan is reduced to zero; and the policy cannot
be amended without the prior written consent of the
related mortgagee;
(L) to the best of the Depositor's knowledge, no default by
the related Mortgagor or Credit Tenant has occurred
under the related Credit Tenant 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 Tenant Lease;
(M) the related Credit Tenant Lease is in full force and
effect, and is a legal, valid, binding and (subject to
the exceptions set forth in paragraph (v) above)
enforceable agreement of the related Credit Tenant;
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(N) no Person owns any interest in any payments due under
the related Credit Tenant Lease other than the related
Mortgagor and the Depositor (which interest is being
conveyed hereunder);
(O) the related Credit Tenant has agreed to notify the
mortgagee under such CTL Loan of any default under the
related Credit Tenant Lease and to provide such
mortgagee with additional time and opportunity to cure;
(P) such CTL Loan provides that the related Credit Tenant
Lease cannot be modified without the prior consent of
the mortgagee thereunder, any modifications of such
Credit Tenant Lease or of any guarantee of the related
Credit Tenant's obligations thereunder that occurred
prior to the origination of such CTL Loan are included
in the related Mortgage File, and neither the Depositor
nor LBHI has consented to any modifications of such
Credit Tenant Lease that are not part of the related
Mortgage File;
(Q) to the best of the Depositor's knowledge, there is no
right of rescission, offset, abatement, diminution,
defense or counterclaim to the related Credit Tenant
Lease, nor will the operation of any of the terms of
such Credit Tenant Lease, or the exercise of any rights
thereunder, render such Credit Tenant Lease
unenforceable, in whole or in part, or subject to any
right of rescission, offset, abatement, diminution,
defense or counterclaim;
(R) the related Credit Tenant is required under such CTL
Loan to make all rental payments directly to the
mortgagee, its successors and assigns;
(S) the related Credit Tenant Lease contains customary and
(subject to the exceptions set forth in paragraph (v)
above) enforceable provisions which render the rights
and remedies of the lessor thereunder adequate for the
enforcement and satisfaction of the lessor's rights
thereunder;
(T) the related Credit Tenant Lease has an original term
ending on or after the final maturity of such CTL Loan;
(U) except as set forth on Schedule III-lvi(U) hereto, the
related Mortgaged Property is not subject to any lease
other than the related Credit Tenant Lease, and the
related Credit Tenant occupies the entire space;
(V) except if such CTL Loan is identified on Schedule
III-lvi(V), 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
(W) the related Credit Tenant has delivered an estoppel
verifying the rents and terms of the related Credit
Tenant Lease, acknowledging that no rent has been paid
in advance and agreeing to attorn to the mortgagee.
(lvii) If such Mortgage Loan has a Cut-off Date Balance of $15
million or more and is identified on Schedule III-lvii hereto, an
entity (or individual) other than the related
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Mortgagor has agreed to be jointly and severally liable with the
related Mortgagor for all liabilities, costs, losses, damages,
expenses or claims suffered or incurred by the mortgagee under such
Mortgage Loan by reason of or in connection with and to the extent of
(A) any intentional fraud or material intentional misrepresentation
by the related Mortgagor and (B) any breach on the part of the
related Mortgagor of any environmental representations, warranties
and covenants contained in the related Mortgage Loan documents;
provided that, instead of any breach described in clause (B) of this
paragraph, such entity (or individual) may instead cover liabilities,
costs, losses, damages, expenses and claims resulting from a breach
of the obligations and indemnities of the related Mortgagor under the
related Mortgage Loan documents relating to hazardous or toxic
substances, radon or compliance with environmental laws.
(lviii) if such Mortgage Loan has a Cut-off Date Balance of
$15 million or more and is identified on Schedule III-lviii hereto as
having a "hard lock-box account", (A) the related lock-box account
was established as of the Closing Date, (B) the related lock-box
account is under the control of the mortgagee or its designee, and
(C) either the tenants or the property manager of the related
Mortgaged Property remit payments directly to such lock-box account.
(lix) If such Mortgage Loan is secured by a Mortgage on the
Mortgaged Property identified on the Mortgage Loan Schedule as
Westfield Shoppingtown Plaza Camino Real, then:
(A) the related Anticipated Repayment Date is not less than
seven years from the origination date for such Mortgage
Loan;
(B) such Mortgage Loan provides that from the related
Anticipated Repayment Date through the maturity date for
such Mortgage Loan, all excess cash flow (net of monthly
expenses reasonably related to the operation of the
related Mortgaged Property, amounts due for reserves
established under such Mortgage Loan, and payments for
any other expenses, including capital expenses, related
to such Mortgaged Property which are approved by
mortgagee) will be applied to repay principal due under
such Mortgage Loan; and
(C) no later than the related Anticipated Repayment Date,
the related Mortgagor is required (if it has not
previously done so) to enter into a "lockbox agreement"
whereby all revenue from the related Mortgaged Property
will be deposited directly into a designated account
controlled by the mortgagee under such Mortgage Loan.
(lx) An appraisal of the related Mortgaged Property was
conducted in connection with the origination of such Mortgage Loan;
and except as otherwise set forth on Schedule III-lx, such appraisal
satisfied either (A) the requirements of the "Uniform Standards of
Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, or (B) the guidelines in
Title XI of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, in either case as in effect on the date such
Mortgage Loan was originated.
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The Depositor hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, as of the Closing
Date that it has not transferred any UBS Mortgage Loan to any Person other than
the Trustee and that it has not caused any UBS Mortgage Loan to be subject to
any lien, claim or encumbrance.
Except as expressly provided in Section 2.04(a) and the
preceding paragraph, the Depositor does not make any representations or
warranties regarding the UBS Mortgage Loans.
(c) The Depositor hereby makes for the benefit of the
Certificateholders and the other parties hereto the following representations,
warranties and covenants, which shall be in effect each and every day until (but
only until) such time as it unconditionally sells to an Independent third party
or parties all of its interest in the Class H, Class J, Class K, Class L, Class
M, Class N and Class P Certificates (such period, the "Depositor Restricted
Period"):
(i) All corporate formalities shall be observed by the
Depositor, Lehman Brothers and LBHI, including keeping proper
corporate books and records and taking appropriate action at the
appropriate times by the Board of Directors and officers of the
Depositor. The Depositor shall not declare dividends without approval
from its Board of Directors.
(ii) Each of LBHI and Lehman Brothers shall, at all times
and in all material respects, comply with all provisions in each
Transaction Document to which it is a party.
(iii) The Depositor shall engage in transactions with LBHI,
Lehman Brothers and the other Affiliates of the Depositor (A) only on
terms and conditions comparable to transactions on an arm's-length
basis with unaffiliated persons and (B) only with prior unanimous
approval of the Board of Directors of the Depositor.
(iv) The Depositor shall not allow LBHI, Lehman Brothers or
any of its other affiliates to guarantee the obligations of the
Depositor.
(v) LBHI's and the Depositor's respective accounting records
will identify the Mortgage Loans and other assets of the Depositor as
property of the Depositor (except to the extent the Mortgage Loans
are assigned to the Trust) consistent with GAAP. The consolidated
financial statements of Lehman Brothers will contain footnotes which
describe the sale by LBHI to the Depositor of the LBHI Mortgage Loans
and the separate existence of the Depositor. Furthermore, the
Depositor's financial statements shall treat the Mortgage Loans and
other assets of the Depositor as assets owned by it, except to the
extent that the Mortgage Loans have been assigned to the Trust.
(vi) There is no other agreement, arrangement or
understanding, written or otherwise (including, without limitation,
with respect to the transfer of the Mortgage Loans), that supplements
or otherwise modifies the agreements expressed in the Transaction
Documents.
(vii) The other transactions in which the Depositor is
engaged are of a nature similar to the transactions contemplated by
the Transaction Documents.
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(viii) The Depositor has not conducted and shall not conduct
its business activities in violation of its organizational documents
in the form attached hereto as Exhibit Z, and shall not modify the
provisions of Articles III, V, VIII, IX or X of its certificate of
incorporation in the form attached hereto as Exhibit Z, in any event
unless it receives written confirmation from each Rating Agency that
doing so would not result in a qualification, downgrade or withdrawal
of any of the ratings then assigned to the Certificates by such
Rating Agency.
(ix) The Depositor understands and acknowledges that
non-affiliated Certificateholders and Certificate Owners have
purchased their respective Certificates or interests therein based on
the assumption that the Depositor will be maintained as a separate
entity having the characteristics referred to in the foregoing
assumptions of this Section 2.04(c) and the organizational documents
of the Depositor attached hereto as Exhibit Z. The Depositor further
understands and acknowledges that such parties have relied on the
legal separateness of the Depositor and its separate credit in
connection with the transactions contemplated by the Transaction
Documents and would be prejudiced by any consolidation of the
Depositor with LBHI in an insolvency of LBHI or with Lehman Brothers
in an insolvency of Lehman Brothers.
In the event that at any time during the Depositor Restricted Period
there is a breach of any of the foregoing representations, warranties or
covenants of the Depositor contained in this Section 2.04(c), the Depositor
shall within 45 days of the earlier of its discovery or notice of such breach
take one of the following actions: (i) cure such breach in all material respects
so that (as confirmed by an Opinion of Counsel acceptable to the Rating
Agencies) its separateness as a legal entity would not be jeopardized by the
insolvency of Lehman Brothers or LBHI; or (ii) transfer all of its interest in
the Class H, Class J, Class K, Class L, Class M, Class N and Class P
Certificates to an Independent third party; or (iii) transfer all of its
interest in the Class H, Class J, Class K, Class L, Class M, Class N and Class P
Certificates to an affiliated special purpose entity and deliver to each Rating
Agency an Opinion of Counsel to the effect that such Affiliate would not be
consolidated with the Depositor, LBHI or Lehman Brothers in the event of an
insolvency of the Depositor, LBHI, Lehman Brothers or any particular equity
holder holding a 49% or greater equity interest in such Affiliate
(d) The representations, warranties and covenants of the
Depositor set forth in Section 2.04(a), Section 2.04(b) and Section 2.04(c)
shall survive the execution and delivery of this Agreement and shall inure to
the benefit of the Persons for whose benefit they were made for so long as the
Trust Fund remains in existence. Upon discovery by any party hereto of any
breach of any of such representations, warranties and covenants, the party
discovering such breach shall give prompt written notice thereof to the other
parties.
SECTION 2.05. Execution, Authentication and Delivery of Class
R-I Certificates; Creation of REMIC I Regular
Interests.
The Trustee hereby acknowledges the assignment to it of the
assets included in 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
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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.
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
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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 REO Properties that it is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee, for the benefit of the Certificateholders, as determined in the good
faith and reasonable judgement of the Master Servicer or the Special Servicer,
as the case may be, in accordance with: (i) any and all applicable laws; (ii)
the terms of this Agreement and the respective Mortgage Loans; (iii) the terms
of any Residual Value Insurance Policies or Lease Enhancement Policies (in the
case of the respective CTL Loans); and (iv) to the extent consistent with the
foregoing, in accordance with the Servicing Standard. The Master Servicer or the
Special Servicer, as applicable in accordance with this Agreement, shall service
and administer each Cross-Collateralized Group as a single Mortgage Loan as and
when necessary and appropriate consistent with the Servicing Standard. Without
limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer
shall service and administer all Mortgage Loans that are not Specially Serviced
Mortgage Loans and shall render such services with respect to the Specially
Serviced Mortgage Loans as are specifically provided for herein, and (ii) the
Special Servicer shall service and administer each Specially Serviced Mortgage
Loan and REO Property and shall render such services with respect to the
Mortgage Loans that are not Specially Serviced Mortgage Loans as are
specifically provided for herein. All references herein to the respective duties
of the Master Servicer and the Special Servicer, and to the areas in which they
may exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and Section 6.11 (taking
account of Section 6.11(b)), the Master Servicer and the Special Servicer shall
each have full power and authority, acting alone, to do or cause to be done any
and all things in connection with such servicing and administration which it may
deem necessary or desirable. Without limiting the generality of the foregoing,
each of the Master Servicer and the Special Servicer, in its own name, with
respect to each of the Mortgage Loans it is obligated to service hereunder, is
hereby authorized and empowered by the Trustee to execute and deliver, on behalf
of the Certificateholders and the Trustee or any of them, (i) any and all
financing statements, continuation statements and other documents or instruments
necessary to maintain the lien created by any Mortgage or other security
document in the related Mortgage File on the related Mortgaged Property and
related collateral; (ii) in accordance with the Servicing Standard and subject
to Section 3.20 and Section 6.11 (taking account of Section 6.11(b)), any and
all modifications, extensions, waivers, amendments or consents to or with
respect to any documents contained in the related Mortgage File; and (iii) any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments. Subject to Section
3.10, the Trustee shall, at the written request of the Master Servicer or the
Special Servicer, promptly execute any limited powers of attorney and other
documents furnished by the Master Servicer or the Special Servicer that are
necessary or appropriate to enable them to carry out their servicing and
administrative duties hereunder; provided, however, that the Trustee shall not
be held liable for any misuse of any such power of attorney by the Master
Servicer or the Special Servicer. 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
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
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indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity; or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(c) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee under this Agreement is intended by the parties
to be that of an independent contractor and not that of a joint venturer,
partner or agent.
SECTION 3.02. Collection of 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 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 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 Mortgage Loans,
the Mortgagors make payments directly to the Master Servicer. Upon receipt of
any such payment with respect to a Specially Serviced Mortgage 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 Mortgage Loan, or the Master Servicer, with regard to a Mortgage Loan
that is not a Specially Serviced Mortgage Loan, may waive or defer any Default
Charges in connection with collecting any late 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. 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, as follows: 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
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related Mortgage Rate to, but not including, the date of receipt (or, in the
case of a full Monthly Payment from any Mortgagor, through the related Due
Date), exclusive, however, in the case of an ARD Loan after its Anticipated
Repayment Date, of any such accrued and unpaid interest that constitutes
Additional Interest; third, as a recovery of principal of such Mortgage Loan
then due and owing, including by reason of acceleration of the Mortgage Loan
following a default thereunder (or, if a Liquidation Event has occurred in
respect of such Mortgage Loan, as a recovery of principal to the extent of its
entire remaining unpaid principal balance); fourth, 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 Charges then due and owing under such Mortgage Loan;
eighth, as a recovery of any assumption fees, modification fees and extension
fees then due and owing under such Mortgage Loan; ninth, as a recovery of any
other amounts then due and owing under such Mortgage Loan (other than remaining
unpaid principal and, in the case of an ARD Loan after its Anticipated Repayment
Date, other than Additional Interest); tenth, as a recovery of any remaining
principal of such Mortgage Loan to the extent of its entire remaining unpaid
principal balance; and, eleventh, in the case of an ARD Loan after its
Anticipated Repayment Date, as a recovery of accrued and unpaid Additional
Interest on such ARD Loan to but not including the date of receipt.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans,
establish and maintain one or more accounts (the "Servicing Accounts"), in which
all 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 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 for the following purposes: (i) consistent with the
related loan documents, to effect payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and comparable items in respect
of the respective Mortgaged Properties, (ii) insofar as the particular Escrow
Payment represents a late payment that was intended to cover an item described
in the immediately preceding clause (i) for which a Servicing Advance was made,
to reimburse the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, as applicable, for such Servicing Advance; (iii) to refund to
Mortgagors any sums as may be determined to be overages; (iv) to pay interest,
if required and as described below, to Mortgagors on balances in such Servicing
Account; (v) to 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 to be
paid to the Mortgagor; or (vi) to 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, 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, (i) maintain accurate records with respect to the related Mortgaged
Property reflecting the status of real estate taxes, assessments and other
similar items that are or may become a lien thereon and the status of insurance
premiums and any ground rents payable in respect thereof and (ii) use reasonable
efforts to obtain, from time to time, all bills for (or otherwise confirm) the
payment of such items (including renewal premiums) and, for the Mortgage Loans
that require the related Mortgagor to escrow for such items, shall effect
payment thereof prior to the applicable penalty or termination date. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Mortgage Loan (or, if such Mortgage Loan does not require the related Mortgagor
to escrow for the payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable) and similar items, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Mortgagor to comply with the requirement of the related Mortgage that the
Mortgagor make payments in respect of such items at the time they first become
due and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for nonpayment of
such items). Subject to Section 3.11(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, make a Servicing Advance with respect to the related Mortgaged Property in
an amount equal to all such funds as are necessary for the purpose of effecting
the payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies, in each
instance if and to the extent Escrow Payments (if any) collected from the
related Mortgagor are insufficient to pay such item when due and the related
Mortgagor has failed to pay such item on a timely basis. All such Servicing
Advances shall be reimbursable in the first instance from related collections
from the Mortgagors, and further as provided in Section 3.05(a). No costs
incurred by the Master Servicer in effecting the payment of real estate taxes,
assessments and, if applicable, ground rents on or in respect of the Mortgaged
Properties shall, for purposes of this Agreement, including the Trustee's
calculation of monthly distributions to Certificateholders, be added to the
unpaid Stated Principal Balances of the related Mortgage Loans, notwithstanding
that the terms of such 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,
establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all Reserve Funds, if any, shall be deposited and
retained. Withdrawals of amounts so deposited may be made (i) for the specific
purposes for which the particular Reserve Funds were delivered, in accordance
with the Servicing Standard and the terms of the related Mortgage Note, Mortgage
and any other agreement with the related Mortgagor governing such Reserve Funds,
and (ii) to pay the Master Servicer interest and investment income earned on
amounts in the Reserve Accounts as described below. To the extent permitted in
the applicable 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.
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SECTION 3.04. Custodial Account, Defeasance Deposit Account,
Collection Account, Interest Reserve Account and
Excess Liquidation Proceeds Account.
(a) The Master Servicer shall establish and maintain one or
more separate accounts (collectively, the "Custodial Account"), in which the
amounts described in clauses (i) through (ix) below shall be deposited and held
on behalf of the Trustee in trust for the benefit of the Certificateholders. The
Custodial Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Custodial Account, within one Business
Day of receipt (in the case of payments by Mortgagors or other collections on
the Mortgage Loans) or as otherwise 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 received in respect of any Mortgage Loan;
(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 Custodial
Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a
blanket hazard policy or a master single interest policy;
(vii) any amounts required to be transferred from the REO
Account pursuant to Section 3.16(c);
(viii) any amounts required to be transferred from the Special
Reserve Account pursuant to Section 2.03(e); and
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(ix) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made.
The foregoing requirements for deposit in the Custodial
Account shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, 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 not expressly
referred to in the prior paragraph need not be deposited by the Master Servicer
in the Custodial Account. If the Master Servicer shall deposit in the Custodial
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Custodial Account, any provision herein to the
contrary notwithstanding. The Master Servicer shall promptly deliver to the
Special Servicer, as additional 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 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 (ix) above with respect to any Mortgage Loan, the Special
Servicer shall promptly, but in no event later than one Business Day after
receipt, remit such amounts to the Master Servicer for deposit into the
Custodial Account in accordance with the second preceding paragraph, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. With respect to any such amounts paid by check to the
order of the Special Servicer, the Special Servicer shall endorse such check to
the order of the Master Servicer, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason. Any such amounts received by the Special Servicer with respect to an REO
Property shall be deposited by the Special Servicer into the REO Account and
thereafter remitted to the Master Servicer for deposit into the Custodial
Account as and to the extent provided in 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, pursuant to the provisions of
the related Mortgage Loan documents, 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 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).
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(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 Master Servicer Remittance Date therein, for deposit in the
Collection Account, an aggregate amount of immediately available funds equal to
the Master Servicer Remittance Amount for such Master Servicer Remittance Date,
together with, 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
(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 or Master Servicer Remittance 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 or Master Servicer Remittance Date, as the case
may be, to but not including the related Distribution Date.
On the Master Servicer Remittance 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.
As and when required pursuant to Section 3.05(d), the Trustee
shall transfer monies from the Excess Liquidation Proceeds Account to the
Collection Account.
(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.
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(d) If any Excess Liquidation Proceeds are received, the
Trustee shall establish and maintain one or more accounts (collectively, the
"Excess Liquidation Proceeds Account") to be held in trust for the benefit of
the Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Custodial Account
and remit to the Trustee for deposit in the Excess Liquidation Proceeds Account
all Excess Liquidation Proceeds received during the Collection Period ending on
the Determination Date immediately prior to such Master Servicer Remittance
Date.
(e) Funds in the 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. Funds in the Excess Liquidation
Proceeds Account shall remain uninvested. The Master Servicer shall give notice
to the Trustee, the Special Servicer and the Rating Agencies of the location of
the Custodial Account as of the Closing Date and of the new location of the
Custodial Account prior to any change thereof. As of the Closing Date, the
Collection Account, the Interest Reserve Account and the Excess Liquidation
Proceeds 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 the Collection Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account prior to any
change thereof.
SECTION 3.05. Permitted Withdrawals From the Custodial
Account, the Collection Account, the Interest
Reserve Account and the Excess Liquidation
Proceeds Account.
(a) The Master Servicer may, from time to time, make
withdrawals from the Custodial Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(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, 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) on each Master Service Remittance Date, to pay to
itself the earned Master Servicing Fees in respect of each Mortgage
Loan and REO Loan for such Master Servicer Remittance Date and, to
the extent not previously paid, for each prior Master Servicer
Remittance Date; 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;
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(iv) on each Master Servicer Remittance Date, to pay to the
Special Servicer, out of general collections on the Mortgage Loans
and any REO Properties, the earned and unpaid Special Servicing Fees
in respect of each Specially Serviced Mortgage Loan and REO Loan for
such Master Service Remittance Date and, to the extent not previously
paid, for each prior Master Servicer Remittance Date;
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) any earned and unpaid Workout Fees and
Liquidation Fees in respect of each Specially Serviced Mortgage Loan,
Corrected Loan and/or REO Loan, as applicable, in the amounts and
from the sources specified in Section 3.11(c);
(vi) to reimburse the Fiscal Agent, the Trustee, itself and
the Special Servicer, in that order, for any unreimbursed Servicing
Advances made thereby with respect to any Mortgage Loan or REO
Property, 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 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, 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) first, out of Default
Charges collected on or in respect of the related Mortgage Loan or
REO Loan, as the case may be, as to which the related Advance was
made, as and to the extent contemplated by Section 3.25, and (B)
then, to the extent that such Default Charges described in the
immediately preceding clause (A) are insufficient, but only after
such Advance has been reimbursed, out of general collections of the
Mortgage Loans and any REO Properties if such Advance has been
reimbursed on a prior date;
(ix) to pay any unpaid Additional Trust Fund Expense (other
than interest accrued on Advances, which is payable pursuant to
clause (viii) above, and other than Special Servicing Fees,
Liquidation Fees and Workout Fees) out of Default Charges collected
on or in respect of the related Mortgage Loan or REO Loan, as to
which such expense was incurred, and as to the extent contemplated by
Section 3.25.
(x) 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);
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(xi) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income
earned in respect of amounts held in the Custodial Account as
provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the Custodial Account for any
Collection Period, (B) Prepayment Interest Excesses and (C) Net
Default Charges that accrued in respect of Mortgage Loans that are
not Specially Serviced Mortgage Loans, and to pay the Special
Servicer, as additional special servicing compensation in accordance
with Section 3.11(d), Net Default Charges that accrued in respect of
Specially Serviced Mortgage Loans and REO Loans;
(xii) 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);
(xiii) to pay itself, the Special Servicer, the Depositor,
or any of their respective members, managers, 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;
(xiv) 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;
(xv) 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;
(xvi) 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;
(xvii) on each Master Servicer Remittance Date, to transfer
Excess Liquidation Proceeds to the Trustee, for deposit in the Excess
Liquidation Proceeds Account, in accordance with Section 3.04(d); and
(xviii) to clear and terminate the Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate
accounting records, on a loan-by-loan and property-by-property basis when
appropriate, in connection with any withdrawal from the Custodial Account
pursuant to clauses (ii) - (xvii) above.
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The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer), the Trustee
or the Fiscal Agent from the Custodial Account, amounts permitted to be paid to
the Special Servicer (or to any such third party contractor), the Trustee or the
Fiscal Agent therefrom promptly upon receipt of a written statement of a
Servicing Officer of the Special Servicer or of a Responsible Officer of the
Trustee or the Fiscal Agent describing the item and amount to which the Special
Servicer (or such third party contractor), the Trustee or the Fiscal Agent, as
applicable, is entitled (unless pursuant to this Agreement it is otherwise clear
that the Special Servicer, the Trustee or the Fiscal Agent, as the case may be,
is entitled to such amounts, in which case a written statement is not required).
The Master Servicer may rely conclusively on any such written statement and
shall have no duty to re-calculate the amounts stated therein. The Special
Servicer shall keep and maintain separate accounting for each Specially Serviced
Mortgage Loan and REO Property, on a loan-by-loan and property-by-property
basis, for the purpose of justifying any request for withdrawal from the
Custodial Account. Each of the Trustee and Fiscal Agent shall keep and maintain
separate accounting, on a loan-by-loan and property-by-property basis, for the
purpose of justifying any request for withdrawal from the Custodial Account for
reimbursements of Advances or interest thereon.
(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);
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(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
(ix) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On each Master Servicer Remittance 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).
(d) On each Master Servicer Remittance Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Collection Account, for distribution on the next following Distribution Date, an
amount equal to the lesser of (i) the entire amount, if any, then on deposit in
the Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable on such Distribution Date pursuant to Sections
4.01(a) and 4.01(b), over the Available Distribution Amount for such
Distribution Date (calculated without regard to such transfer from the Excess
Liquidation Proceeds Account to the Collection Account); provided that on the
Master Servicer Remittance Date immediately prior to the Final Distribution
Date, the Trustee shall withdraw from the Excess Liquidation Proceeds Account
and deposit in the Collection Account, for distribution on such Distribution
Date, any and all amounts then on deposit in the Excess Liquidation Proceeds
Account.
SECTION 3.06. Investment of Funds in the Servicing Accounts,
the Reserve Accounts, the Defeasance Deposit
Account, the Custodial Account, the Collection
Account, the Interest Reserve Account and the
REO Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or the Custodial Account and may direct in writing the Trustee
with respect to the Collection Account and the Interest Reserve Account (each,
for purposes of this Section 3.06, an "Investment Account"), and the Special
Servicer may direct in writing any depository institution maintaining the REO
Account (also, for purposes of this Section 3.06, an "Investment Account"), to
invest, or if it is such depository institution, may itself invest, the funds
held therein in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement; provided that, in
the case of any Servicing Account, any Reserve Account or the Defeasance
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Deposit Account, such investment direction shall be subject to the related
Mortgage Loan documents and applicable law. 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). The Master Servicer (with respect to Permitted
Investments of amounts in the Servicing Accounts, the Reserve Accounts, the
Defeasance Deposit Account and the Custodial Account) and the Special Servicer
(with respect to Permitted Investments of amounts in the REO Account), on behalf
of the Trustee, shall (and the Trustee hereby designates the Master Servicer and
the Special Servicer, as applicable, as the Person that shall) (i) be the
"entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security entitlement",
"control", "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment 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, for purposes of Revised
Article 8 (1994 Revision) of the UCC. If amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Master Servicer (in the case of the Custodial Account, 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 Account) shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on
the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to at least the
lesser of (1) all amounts then payable thereunder and
(2) the amount required to be withdrawn on such date;
and
(y) demand payment of all amounts due thereunder promptly
upon determination by the Master Servicer or the
Special Servicer, as the case may be, that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit
in the Investment Account.
(b) Whether or not the Master Servicer directs the investment
of funds in any of the Servicing Accounts, the Reserve Accounts, the Defeasance
Deposit Account, the Custodial Account, the Collection Account or the Interest
Reserve Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for each such
Investment Account for each Collection Period (and, in the case of Servicing
Accounts, 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) or 3.05(a) 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
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for such Investment Account
for each Collection Period, shall be for the sole and exclusive
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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 Account,
(iii) the Collection Account and (iv) the Interest Reserve Account) and the
Special Servicer (in the case of the REO Account) shall promptly deposit therein
from its own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Investment Account for such Collection Period.
Notwithstanding any of the foregoing provisions of this Section 3.06, no party
shall be required to deposit any loss on a deposit of funds in an Investment
Account if such loss is incurred solely as a result of the insolvency of the
federal or state chartered depository institution or trust company with which
such deposit was maintained so long as such depository institution or trust
company satisfied the conditions set forth in the definition of "Eligible
Account" at the time such deposit was made.
(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) Amounts on deposit in the Excess Liquidation Proceeds
Account shall remain uninvested.
(e) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including the
calculation of the Available Distribution Amount and the Master Servicer
Remittance 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 that
are not Specially Serviced Mortgage Loans) and the Special Servicer (with
respect to Specially Serviced Mortgage Loans) shall, consistent with the
Servicing Standard, cause to be maintained for each Mortgaged Property all
insurance coverage as is required under the related Mortgage; provided that if
and to the extent that any such Mortgage permits the holder thereof any
discretion (by way of consent, approval or otherwise) as to the insurance
coverage that the related Mortgagor is required to maintain, the Master Servicer
or Special Servicer, as the case may be, shall exercise such discretion in a
manner consistent with the Servicing Standard; and provided, further, that, if
and to the extent that a Mortgage so permits, the Master Servicer or Special
Servicer, as the case may be, shall use reasonable best efforts to require the
related Mortgagor to obtain the required insurance coverage from Qualified
Insurers that have a "claims paying ability" or "financial strength" rating, as
applicable, of at least "A2" from Moody's (if then rated 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 S&P (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
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Certificateholder may request that earthquake insurance be secured for one or
more Mortgaged Properties by the related Mortgagor, 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
and such loan documents require the Mortgagor to obtain earthquake insurance at
the request of the mortgagee. 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 S&P (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, including Specially Serviced Mortgage Loans), and shall be in the name of
the Special Servicer (in the case of insurance maintained in respect of REO
Properties), on behalf of the Trustee; and, in each case, such insurance shall
be issued by a Qualified Insurer. Any amounts collected by the Master Servicer
or the Special Servicer under any such policies (other than amounts to be
applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Mortgagor, in each case
subject to the rights of any tenants and ground lessors, as the case may be, and
in each case in accordance with the terms of the related Mortgage and the
Servicing Standard) shall be deposited in the Custodial Account in accordance
with Section 3.04(a), in the case of amounts received in respect of a Mortgage
Loan, or in the 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) 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 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 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 Moody's, and if not then rated by Moody's, then
at least "A:VIII" from A.M. Best Company) and "A" from S&P (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 Custodial Account from its own funds the amount not
otherwise payable under the blanket policy because of such deductible clause.
The Master Servicer or the Special Servicer, as appropriate, shall
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prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
If the Master Servicer shall cause any Mortgaged Property or
the Special Servicer shall cause any REO Property to be covered by a master
single interest insurance policy naming the Master Servicer or the Special
Servicer, as applicable, on behalf of the Trustee as the loss payee or insured,
as applicable, then to the extent such policy (i) is obtained from a Qualified
Insurer that possesses (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 Moody's,
and if not then rated by Moody's, then at least "A:VIII" from A.M. Best Company)
and "A" from S&P (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
applicable, shall conclusively be deemed to have satisfied its obligation to
cause such insurance to be maintained on such Mortgaged Property (in the case of
the Master Servicer) or REO Property (in the case of the Special Servicer). If
the Master Servicer shall cause any Mortgaged Property as to which the related
Mortgagor has failed to maintain the required insurance coverage, or the Special
Servicer shall cause any REO Property, to be covered by such master single
interest insurance policy, then the incremental costs of such insurance
applicable to such Mortgaged Property or REO Property (i.e., other than any
minimum or standby premium payable for such policy whether or not any Mortgaged
Property or REO Property is covered thereby) paid by the Master Servicer or the
Special Servicer, as applicable, shall constitute a Servicing Advance. The
Master Servicer shall, consistent with the Servicing Standard and the terms of
the related Mortgage Loan documents, pursue the related Mortgagor for the amount
of such incremental costs. All other costs associated with any such master
single interest insurance policy (including, any minimum or standby premium
payable for such policy) shall be borne by the Master Servicer or Special
Servicer, as the case may be, without right of reimbursement. Such master single
interest policy may contain a deductible clause (not in excess of a customary
amount), in which case the Master Servicer or the Special Servicer, as
appropriate, shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property an individual hazard insurance policy
complying with the requirements of Section 3.07(a), and there shall have been
one or more losses that would have been covered by such individual policy,
promptly deposit into the Custodial Account from its own funds the amount not
otherwise payable under the master single interest policy because of such
deductible clause. The Master Servicer or the Special Servicer, as appropriate,
shall prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such master single interest 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 Mortgage
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 S&P (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
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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 Mortgage 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 S&P (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event, as evidenced in writing by
such Rating Agency), a policy or policies of insurance covering loss occasioned
by the errors and omissions of its officers, employees and agents in connection
with its servicing obligations hereunder, which policy or policies shall be in
such form and amount as would permit it to be a qualified Fannie Mae
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not cause an Adverse Rating Event (as evidenced in writing from each
Rating Agency). Each of the Master Servicer and the Special Servicer shall be
deemed to have complied with the foregoing provisions if an Affiliate thereof
has such insurance and, by the terms of such policy or policies, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be.
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 S&P) and "A" from S&P (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 (other than a
Specially Serviced Mortgage 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 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 10 Business 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) and Section 6.11, grant consent to any such request for such transfer
and/or assumption in accordance with the terms of the Mortgage Loan and this
Agreement, including, without limitation, the Servicing Standard. If the Special
Servicer does not respond within such 10-Business Day period, the Special
Servicer's consent shall be deemed granted. If the Special Servicer consents or
is deemed to have
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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 by,
another Person, the Master Servicer shall be authorized to enter into an
assumption or substitution agreement with the Person, which shall be a Single
Purpose Entity, to whom the related Mortgaged Property has been or is proposed
to be conveyed and/or release the original Mortgagor from liability under the
related Mortgage Loan and substitute as obligor thereunder the Person to whom
the related Mortgaged Property has been or is proposed to be conveyed; provided,
however, that the Master Servicer shall not enter into any such agreement to the
extent that any terms thereof would result in an Adverse REMIC Event or Adverse
Grantor Trust Event or create any lien on a Mortgaged Property that is senior
to, or on parity with, the lien of the related Mortgage. The Master Servicer
shall notify the Trustee, the Special Servicer and each Rating Agency 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 50% 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. To the extent not collected
from the related Mortgagor, any rating agency charges in connection with an
assumption shall be satisfied by the Master Servicer by other arrangements;
provided, however, that in no event shall such proposed "other arrangements"
result in any liability to the Trust Fund including any indemnification of the
Master Servicer or the Special Servicer which may result in legal expenses to
the Trust Fund, unless previously approved by the Controlling Class
Representative.
(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 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 and each Rating
Agency); provided that any such waiver of such restrictions shall be subject to
Section 3.08(d) and Section 6.11. If the Master Servicer receives a request for
consent to a transfer and assumption of a Specially Serviced Mortgage 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 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
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Mortgaged Property has been or is proposed to be conveyed and/or release the
original Mortgagor from liability under the related Mortgage Loan and substitute
as obligor thereunder the Person to whom the related Mortgaged Property has been
or is proposed to be conveyed; provided, however, that the Special Servicer
shall not enter into any such agreement to the extent that any terms thereof
would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create
any lien on a Mortgaged Property that is senior to, or on parity with, the lien
of the related Mortgage. The Special Servicer shall notify the Trustee, the
Master Servicer and each Rating Agency 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. To the extent not collected from the related
Mortgagor, any rating agency charges in connection with an assumption shall be
satisfied by the Special Servicer by other arrangements; provided, however, that
in no event shall such proposed "other arrangements" result in any liability to
the Trust Fund including any indemnification of the Master Servicer or the
Special Servicer which may result in legal expenses to the Trust Fund, unless
previously approved by the Controlling Class Representative.
(c) With respect to all Mortgage Loans, the Special Servicer
on behalf of the Trustee as the mortgagee of record shall, to the extent
permitted by applicable law, enforce the restrictions contained in the related
Mortgage 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 and
each Rating Agency; provided that any such waiver of such restrictions shall be
subject to Section 3.08(d) and Section 6.11. Whenever the Master Servicer
becomes aware of a further encumbrance on a Mortgaged Property, or becomes aware
that there is going to be a further encumbrance on a Mortgaged Property, the
Master Servicer shall immediately notify the Special Servicer of such further
encumbrance and deliver to the Special Servicer all documents and records (or
copies thereof) in the Master Servicer's possession regarding the further
encumbrance and such other documents (or copies thereof) regarding the Mortgage
Loan as the Special Servicer shall reasonably require in order to consider the
request. To the extent permitted by the applicable 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
is at least equal to $20,000,000, neither the Master Servicer nor the Special
Servicer shall waive any restrictions contained in the related Mortgage on
transfers of the related Mortgaged Property or on transfers of interests in the
related Mortgagor, unless the Master Servicer or the Special Servicer, as the
case may be, shall have received prior written confirmation from each Rating
Agency 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
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Servicer, as the case may be, shall have received prior written confirmation
from each Rating Agency that such action would not result in an Adverse Rating
Event. In connection with any request for rating confirmation from a Rating
Agency pursuant to this Section 3.08(d), the Master Servicer or the Special
Servicer, as the case may be, shall deliver a Review Package to such Rating
Agency. Further, subject to the terms of the related Mortgage Loan documents and
applicable law, no waiver of a restriction contained in the related Mortgage on
transfers of the related Mortgaged Property or interests in the related
Mortgagor or on further encumbrances thereof may be waived by the Master
Servicer or the Special Servicer unless all costs in connection therewith,
including any arising from seeking Rating Agency confirmation, are paid by the
related Mortgagor. To the extent not collected from the related Mortgagor, any
rating agency charges in connection with the foregoing shall be satisfied by the
Master Servicer by other arrangements; provided, however, that in no event shall
such proposed "other arrangements" result in any liability to the Trust Fund
including any indemnification of the Master Servicer or the Special Servicer
which may result in legal expenses to the Trust Fund, unless previously approved
by the Controlling Class Representative.
SECTION 3.09. Realization Upon Defaulted Loans; Required
Appraisals; Appraisal Reduction Calculation.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans 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. Subject to Section 3.11(h), the Special Servicer
shall advance all costs and expenses incurred by it in any such proceedings, and
shall be entitled to reimbursement therefor as provided in Section 3.05(a). The
Special Servicer shall be responsible, consistent with the Servicing Standard,
for determining whether to exercise any rights it may have under the
cross-collateralization and/or cross-default provisions of a
Cross-Collateralized Mortgage Loan. Nothing contained in this Section 3.09 shall
be construed so as to require the Special Servicer, on behalf of the Trust Fund,
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, 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
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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; provided that 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. If any Mortgage Loan becomes a Required
Appraisal Loan, then the Special Servicer shall (i) obtain or conduct, as
applicable, a Required Appraisal within 60 days of such Mortgage Loan's so
becoming a Required Appraisal Loan (unless a Required Appraisal was obtained or
conducted, as applicable, with respect to such Required Appraisal Loan within
the prior 12 months and the Special Servicer reasonably believes, in accordance
with the Servicing Standard, that no material change has subsequently occurred
with respect to the related Mortgaged Property that would draw into question the
applicability of such Required Appraisal) and (ii) obtain or conduct, as
applicable, an update of the prior Required Appraisal once every 12 months
thereafter for so long as such Mortgage Loan (or any successor REO Loan) remains
a Required Appraisal Loan. The Special Servicer shall deliver copies of all such
Required Appraisals and updated Required Appraisals to the Trustee and the
Master Servicer, 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 and the Controlling Class Representative
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 Custodial Account pursuant to Section 3.05(a). At any time
that any Appraisal Reduction Amount exists with respect to any Required
Appraisal Loan, the Controlling Class 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 shall notify the Trustee, the Master Servicer and the
Controlling Class Representative of such recalculated Appraisal Reduction
Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer as part of the
Trust Fund under such circumstances, in such manner or pursuant to such terms as
would, in the reasonable, good faith judgment of the Special Servicer (exercised
in accordance with the Servicing Standard), (i) cause such Mortgaged Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (unless the portion of such REO Property that is not
treated as "foreclosure property" and that is held by REMIC I at any given time
constitutes not more than a de minimis amount of the assets of REMIC I within
the meaning of Treasury regulation Section 1.860D-1(b)(3)(i) and (ii)), or (ii)
except as permitted by Section 3.17(a), subject the Trust Fund to the imposition
of any federal income taxes under the Code. In addition, the Special Servicer
shall not acquire any personal property pursuant to this Section 3.09 unless
either:
(i) such personal property is, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer;
or
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(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, obtain title to a Mortgaged Property by foreclosure, deed in lieu
of foreclosure or otherwise, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders, could, in the reasonable, good faith judgment of the
Master Servicer or the Special Servicer, as the case may be, exercised in
accordance with the Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law (a
"potentially responsible party"), unless such action is consistent with Section
6.11, and the Special Servicer has previously determined (as evidenced by an
Officer's Certificate to such effect delivered to the Trustee 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 shall be delivered to the
Trustee and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would maximize
the recovery on the related Mortgage Loan to the Certificateholders
(as a collective whole), on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take
such actions as are necessary to bring the Mortgaged Property into
compliance therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such
circumstances or conditions are present for which any such action
could reasonably be expected to be required, that it would maximize
the recovery on the related Mortgage Loan to the Certificateholders
(as a collective whole), on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take
such actions with respect to the affected Mortgaged Property.
The Special Servicer shall, 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
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any such additional testing also to be covered by, and reimbursable as, a
Servicing Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the Custodial Account pursuant to Section 3.05.
(d) If the environmental testing contemplated by Section
3.09(c) above establishes that any of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof has not been satisfied with respect to
any Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust, subject to
Section 6.11, release all or a portion of such Mortgaged Property from the lien
of the related Mortgage; provided that, if such Mortgage Loan has a then
outstanding principal balance greater than $1 million, then prior to the release
of all or a portion of the related Mortgaged Property from the lien of the
related Mortgage, (i) the Special Servicer shall have notified the Rating
Agencies, the Trustee and the Master Servicer in writing of its intention to so
release all or a portion of such Mortgaged Property and the bases for such
intention, (ii) the Trustee shall have notified the Certificateholders in
writing of the Special Servicer's intention to so release all or a portion of
such Mortgaged Property, and (iii) the Holders of Certificates entitled to a
majority of the Voting Rights shall not have objected to such release within 30
days of the Trustee's distributing such notice.
(e) The Special Servicer shall report to the Master Servicer,
the Underwriters and the Trustee, monthly in writing as to any actions taken by
the Special Servicer with respect to any Mortgaged Property that represents
security for a defaulted Mortgage Loan as to which the environmental testing
contemplated in Section 3.09(c) above has revealed that any of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of all such
conditions and release of the lien of the related Mortgage on such Mortgaged
Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the affected Mortgage Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(g) The 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 and the Master Servicer. The Special Servicer shall
maintain accurate records, prepared by a Servicing Officer, of each such Final
Recovery Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the seventh Business Day
following such Final Recovery Determination.
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SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer 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 by a
certification (which certification shall be in the form of a Request for Release
in the form of Exhibit D-1 attached hereto and shall be accompanied by the form
of a release or discharge and shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Custodial Account pursuant to Section 3.04(a),
have been or will be so deposited) of a Servicing Officer (a copy of which
certification shall be delivered to the Special Servicer) and shall request
delivery to it of the related Mortgage File. Upon receipt of such certification
and request, the Trustee shall release, or cause any related Custodian to
release, the related Mortgage File to the Master Servicer 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 the Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, shall release, or cause any related Custodian to release, such
Mortgage File (or such portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Custodial Account pursuant to Section 3.04(a), have been or will be so
deposited, or that 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 of an exigency) of
the Special Servicer's request therefor, the Trustee shall execute and deliver
to the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee (on behalf of the Certificateholders) 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 or the Special Servicer. Together with such documents or pleadings, the
Special Servicer shall deliver to the Trustee a certificate of a Servicing
Officer requesting that such pleadings or documents be executed by the Trustee
and certifying as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee (on behalf of the
Certificateholders) will not invalidate or otherwise affect the lien of the
Mortgage, except
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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 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 on each Master Servicer Remittance Date
the Master Servicing Fee with respect to each Mortgage Loan and REO Loan for
such Master Servicer Remittance Date and, to the extent not previously paid, for
all prior Master Servicer Remittance Dates. With respect to each Mortgage Loan
and REO Loan for any Master Servicer Remittance Date, the Master Servicing Fee
shall: (i) accrue during the period from and including the related Due Date in
the preceding calendar month to, but not including, the related Due Date
occurring in the same calendar month as such Master Servicer Remittance Date (or
such portion of such period that such Mortgage Loan or the related REO Property
is part of the Trust Fund and no Liquidation Event has occurred with respect
thereto); (ii) accrue at the related Master Servicing Fee Rate on the Stated
Principal Balance of such Mortgage Loan or REO Loan, as the case may be,
outstanding as of the Due Date that occurred in the same calendar month as such
Master Servicer Remittance Date (without any reduction in such Stated Principal
Balance that would occur on the Distribution Date following such Master Servicer
Remittance Date); and (iii) be calculated on a 30/360 Basis (or, if a Principal
Prepayment in full or other Liquidation Event shall occur with respect to such
Mortgage Loan or REO Loan, as the case may be, after the Due Date in the
preceding calendar month and before the Due Date occurring in the same calendar
month as such Master Servicer Remittance Date, then on the basis of the actual
number of days to elapse from and including the Due Date in the preceding
calendar month to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days). The Master Servicing Fee
with respect to any Mortgage Loan or REO Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing
Fees shall be payable monthly, on a loan-by-loan basis, from payments of
interest on each Mortgage Loan and REO Revenues allocable as interest on each
REO Loan. The Master Servicer shall be entitled to recover unpaid Master
Servicing Fees in respect of any Mortgage Loan or REO Loan out of that portion
of related Insurance Proceeds or Liquidation Proceeds allocable as recoveries of
interest, to the extent permitted by Section 3.05(a). 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) Net
Default Charges, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and any similar fees
(excluding Prepayment Premiums or Yield Maintenance Charges), in each case to
the extent actually paid by a Mortgagor with respect to any Mortgage Loan and
accrued during the time that such Mortgage Loan was not a Specially Serviced
Mortgage Loan, (ii) 100% of each modification fee or extension fee actually paid
by a Mortgagor with respect to a modification, extension, 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
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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 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 Custodial Account.
The Master Servicer shall also be entitled to additional servicing compensation
in the form of (i) Prepayment Interest Excesses; (ii) interest or other income
earned on deposits in the Custodial Account, the Collection Account and the
Interest Reserve Account in accordance with Section 3.06(b) (but only to the
extent of the Net Investment Earnings, if any, with respect to each such account
for each Collection Period); and (iii) to the extent not required to be paid to
any Mortgagor under applicable law, any interest or other income earned on
deposits in the Servicing Accounts, 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 on each Master Servicer Remittance Date
the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan
and each REO Loan for such Master Servicer Remittance Date and, to the extent
not previously paid, for all prior Master Servicer Remittance Dates. With
respect to each Specially Serviced Mortgage Loan and REO Loan, for any Master
Servicer Remittance Date, the Special Servicing Fee shall: (i) accrue during the
period from and including the Due Date in the preceding calendar month (or such
later date as of which the subject Mortgage Loan became a Specially Serviced
Mortgage Loan or an REO Loan) to, but not including, the Due Date occurring in
the same calendar month as such Master Servicer Remittance Date (or such earlier
date on which a Liquidation Event occurred with respect to such Specially
Serviced Mortgage Loan or the related REO Property, as the case may be, or such
Specially Serviced Mortgage Loan became a Corrected Mortgage Loan); (ii) accrue
at the Special Servicing Fee Rate on the Stated Principal Balance of such
Specially Serviced Mortgage Loan or REO Loan, as the case may be, outstanding as
of the Due Date that occurred in the same calendar month as such Master Servicer
Remittance Date (without any reduction in such Stated Principal Balance that
would occur on the Distribution Date following such Master Servicer Remittance
Date); and (iii) be calculated on a 30/360 Basis (or, if a Principal Prepayment
in full or other Liquidation Event shall occur with respect to a Specially
Serviced Mortgage Loan or REO Loan after the Due Date in the preceding calendar
month and before the Due Date occurring in the same calendar month as such
Master Servicer Remittance Date, then on the basis of the actual number of days
to elapse from and including the Due Date in the preceding calendar month 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 special servicing
period that does not run from one Due Date to but not including the next Due
Date, on the basis of the actual number of days in such period in a month
consisting of 30 days). The Special Servicing Fee with respect to any Specially
Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof or it becomes a Corrected Loan.
Earned but unpaid Special Servicing Fees shall be payable monthly out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Custodial Account pursuant to Section 3.05(a).
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
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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 Mortgage 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, or by the Depositor pursuant
to Section 2.03(a) or UBSPF pursuant to the UBS/Depositor Mortgage Loan Purchase
Agreement, 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 Mortgage 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 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 Sections 7.01(a)(x), 7.01(a)(xi) or 7.01(a)(xii)) or
resigns in accordance with the first sentence of the first paragraph of Section
6.04, it shall retain the right to receive any and all Workout Fees payable in
respect of Mortgage Loans that became Corrected Loans during the period that it
acted as Special Servicer and were still such at the time of such termination or
resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
Mortgage Loan ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the
Special Servicer shall also be entitled to receive the Liquidation Fee with
respect to each Specially Serviced Mortgage Loan as to which it receives a full,
partial or discounted payoff and each Special Serviced Mortgage Loan and REO
Property as to which it receives Liquidation Proceeds. As to each Specially
Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable
from, and shall be calculated by application of the Liquidation Fee Rate to,
such full, partial or discounted payoff and/or Liquidation Proceeds (exclusive
of any portion of such payoff or proceeds that represents Default Interest
and/or Additional Interest); provided that no Liquidation Fee shall be payable
with respect to any such Specially Serviced Mortgage 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 Mortgage 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, or by the
Depositor pursuant to Section 2.03(a) or UBSPF pursuant to the UBS/Depositor
Mortgage Loan Purchase Agreement, 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) Net Default Charges actually collected on the Mortgage Loans that accrued
with respect to a Specially Serviced Mortgage 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 or
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extension 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 the Custodial Account pursuant to Section
3.04(a). The Special Servicer shall also be entitled to additional special
servicing compensation in the form of interest or other income earned on
deposits in the REO Account, if established, in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
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 or
master single interest policy obtained by it insuring against hazard losses
pursuant to Section 3.07(b)), if and to the extent such expenses are not payable
directly out of the Custodial Account or, in the case of the Special Servicer,
the REO Account, 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 Section 3.11(h)) the
Trustee shall make such Servicing Advance. If the Trustee fails to make any
Servicing Advance required to be made under this Agreement, then (subject to
Section 3.11(h)) 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 any
Default Charges collected on or in respect of the particular Mortgage Loan or
REO Property as to which such Servicing Advance relates, subsequent to the
accrual of that interest; and (ii) to the extent that such Default Charges 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 Custodial Account. The Master Servicer shall
reimburse itself, the Special Servicer, the Trustee or the Fiscal Agent, as
appropriate and in accordance with Section 3.05(a), for any Servicing Advance as
soon as practicable after funds available for such purpose are deposited in the
Custodial Account.
(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
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an Officer's Certificate delivered promptly to the Trustee and the Depositor,
setting forth the basis for such determination, together with a copy of any
appraisal of the related Mortgaged Property or REO Property, as the case may be
(which appraisal shall be an expense of the Trust, 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 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,
the Master Servicer shall (at the direction of the Special Servicer if a
Specially Serviced Mortgage Loan or an REO Property is involved) pay directly
out of the Custodial Account any servicing expense that, if advanced by the
Master Servicer or the Special Servicer, would constitute a Nonrecoverable
Servicing Advance; provided that the Master Servicer (or the Special Servicer,
if a Specially Serviced Mortgage Loan or an REO Property is involved) has
determined in accordance with the Servicing Standard that making such payment is
in the best interests of the Certificateholders (as a collective whole), as
evidenced in each case by an Officer's Certificate delivered promptly to the
Trustee, the Depositor and the Controlling Class Representative, setting forth
the basis for such determination and accompanied by any information that such
Person may have obtained that supports such determination. A copy of any such
Officer's Certificate (and accompanying information) of the Master Servicer
shall also be promptly delivered to the Special Servicer, and a copy of any such
Officer's Certificate (and accompanying information) of the Special Servicer
shall also be promptly delivered to the Master Servicer. The Master Servicer may
conclusively rely on any information in this regard provided by the Special
Servicer (if other than the Master Servicer or an Affiliate thereof).
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 becomes a Specially Serviced Mortgage Loan and
annually thereafter for so long as the related Mortgage Loan remains a Specially
Serviced Mortgage 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 Mortgage Loan: (i) at least
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once every two calendar years in the case of Mortgaged Properties securing
Mortgage Loans that have outstanding principal balances of (or Mortgaged
Properties having allocated loan amounts of) $2,000,000 or less and (ii) at
least once every calendar year in the case of all other such Mortgaged
Properties; provided that if, with respect to any CTL 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. 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
Mortgage Loan and REO Loan, and the Master Servicer, in the case of all other
Mortgage Loans, shall each, consistent with the Servicing Standard, use
reasonable efforts to obtain quarterly, annual and other periodic operating
statements and rent rolls with respect to each of the related Mortgaged
Properties and REO Properties. The Special Servicer shall, promptly following
receipt, deliver copies of the operating statements and rent rolls received or
obtained by it to the Master Servicer, and the Master Servicer shall promptly
deliver copies of the operating statements and rent rolls received or obtained
by it to the Trustee, the Special Servicer or any Controlling Class
Certificateholder, in each case upon request.
Within 10 days after receipt by the Special Servicer of any
annual operating statements and related rent rolls with respect to any Mortgaged
Property securing a Specially Serviced Mortgage Loan or any REO Property, the
Special Servicer shall prepare or update and forward to the Master Servicer
within such 10-day period, an NOI Adjustment Worksheet (or related data fields
as required by the Master Servicer) for such Mortgaged Property or REO Property
(with the annual operating statements attached thereto as an exhibit).
Within 60 days after receipt by the Master Servicer of any
annual operating statements with respect to any Mortgaged Property securing a
Mortgage Loan other than a Specially Serviced Mortgage Loan, the Master Servicer
shall prepare or update an NOI Adjustment Worksheet for such Mortgaged Property.
The Master Servicer shall promptly forward to the Trustee in electronic format
an NOI Adjustment Worksheet for each Mortgaged Property or REO Property as to
which such worksheet is available (with the related annual operating statements
attached thereto as an exhibit).
Within 60 days after receipt by the Master Servicer or 10 days
after receipt by the Special Servicer of any annual, quarterly or periodic
operating statements or related rent rolls with respect to any Mortgaged
Property or REO Property, and commencing for the quarter ended September 30,
2000 for current 12-month trailing data (or year to date data until 12-month
trailing data is available) and January 2, 2001 for annual, year end data, the
Master Servicer shall prepare (or, if previously prepared, update) and maintain
one Operating Statement Analysis Report for each Mortgaged Property securing a
Mortgage Loan, other than a Specially Serviced Mortgage Loan and the Special
Servicer shall prepare (or, if previously prepared, update) and maintain one
Operating Statement Analysis Report for each
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Mortgaged Property securing a Specially Serviced Mortgage Loan and each REO
Property. Each Operating Statement Analysis Report or update thereof or related
data fields prepared by the Special Servicer shall be delivered to the Master
Servicer within 10 days of the Special Servicer's receipt of the operating
statements used in preparing such report or update.
The Master Servicer and the Special Servicer shall each, in
accordance with CMSA standards, use the "Normalized" column from the NOI
Adjustment Worksheet for any Mortgaged Property or REO Property, as the case may
be, to update and normalize the corresponding annual year end information in the
Operating Statement Analysis Report and shall use any annual operating
statements and related data fields received with respect to any Mortgaged
Property or REO Property, as the case may be, to prepare the NOI Adjustment
Worksheet for such property. Copies of Operating Statement Analysis Reports and
NOI Adjustment Worksheets are to be made available by the Master Servicer to the
Trustee, the Special Servicer or any Controlling Class Certificateholder, in
each case upon request.
(b) Not later than 2:00 p.m. (New York City time) on the first
Business Day after each Determination Date, the Special Servicer shall deliver
or cause to be delivered to the Master Servicer the following reports or data
fields with respect to the Specially Serviced Mortgage Loans and any REO
Properties, providing the required information as of the end of the related
Collection Period: (i) a CMSA Property File; (ii) a CMSA Financial File; (iii) a
CMSA Loan Periodic Update File and (iv) a Comparative Financial Status Report.
Not later than 2:00 p.m. (New York City time) on the first Business Day
following each Determination Date, the Special Servicer shall deliver or cause
to be delivered to the Master Servicer the following reports or related data
fields with respect to the Specially Serviced Mortgage Loans, any REO Properties
and, to the extent that the subject information relates to when they were
Specially Serviced Mortgage Loans, any Corrected Loans, providing the required
information as of such Determination Date: (i) a Delinquent Loan Status Report;
(ii) a Loan Payoff Notification Report; (iii) an Historical Liquidation Report;
(iv) an Historical Loan Modification Report; and (v) an REO Status Report.
(c) Not later than 12:00 noon (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 and, upon request, to the Rating
Agencies, the Special Servicer and 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, CMSA Financial File,
CMSA Loan Set-up File (if modified), Delinquent Loan Status Report, Comparative
Financial Status Report and related information 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) and/or 4.03(d), such information to be
presented on a loan-by-loan basis.
(d) The Special Servicer shall deliver to the Master Servicer
the reports set forth in Section 3.12(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, and, upon request, the Special Servicer
and 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
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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/or that such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.12(b), and provided that the Master Servicer and
the Special Servicer are not the same Person or Affiliates, 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.
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,
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,
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 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
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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 (within
one year of such report) on the basis of examinations conducted in accordance
with the same standards 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 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.
(a) Each of the Master Servicer and the Special Servicer shall
afford to the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder 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 or
Certificate Owner (identified as such to the reasonable satisfaction of the
Master Servicer or the Special Servicer, as the case may be), access to any
records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law
or contract or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it.
In connection with providing or granting any information or
access pursuant to the prior paragraph to a Certificateholder, Certificate Owner
or any regulatory authority that may exercise authority over a Certificateholder
or Certificate Owner, the Master Servicer and the Special Servicer may each
require payment from such Certificateholder or Certificate Owner 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. In
connection with providing Certificateholders and Certificate Owners access to
the information described in the
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preceding paragraph, the Master Servicer and the Special Servicer shall require
a written confirmation executed by the requesting Person substantially in such
form as may be reasonably acceptable to the Master Servicer or the Special
Servicer, as the case may be, generally to the effect that such Person is a
Holder of Certificates or a beneficial holder of Book-Entry Certificates and
will keep such information confidential.
(b) No less often than on a monthly basis, each of the Master
Servicer and the Special Servicer shall, without charge, make a knowledgeable
Servicing Officer available to answer questions from the Controlling Class
Representative regarding the performance and servicing of the Mortgage Loans
and/of REO Properties for which the Master Servicer or the Special Servicer, as
the case may be, is responsible.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property by the end of the third calendar year following the
calendar year in which REMIC I acquires ownership of such REO Property for
purposes of Section 860G(a)(8) of the Code, unless the Special Servicer either
(i) applies, more than sixty days prior to the end of such third succeeding
year, for and is granted an extension of time (an "REO Extension") by the 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, the Special Servicer shall establish and
maintain one or more accounts (collectively, the "REO Account"), held on behalf
of the Trustee in trust for the benefit of the Certificateholders, for the
retention of revenues and other proceeds derived from each REO Property. The REO
Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, upon receipt, all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received in respect of any REO
Property. Funds in the REO Account (other than any such funds representing
Additional Interest) may be invested in Permitted Investments in accordance with
Section 3.06. The Special Servicer shall be entitled to make withdrawals from
the REO Account to pay itself, as additional special servicing compensation in
accordance with Section 3.11(d), interest and investment income earned in
respect of amounts held in the REO Account as provided in Section 3.06(b) (but
only to the extent of the Net Investment Earnings
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with respect to the REO Account for any Collection Period). The Special Servicer
shall give notice to the Trustee and the Master Servicer of the location of the
REO Account.
(c) The Special Servicer shall withdraw from the REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. On the Business Day following
each Determination Date, the Special Servicer shall withdraw from the REO
Account and deposit into the Custodial Account (or deliver to the Master
Servicer or such other Person as may be designated by the Master Servicer for
deposit into the Custodial Account) the aggregate of all amounts received in
respect of each REO Property during the Collection Period ending on such
Determination Date, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in the REO
Account such portion of proceeds and collections in respect of any 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.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c). The Special Servicer shall provide the Master Servicer any information
with respect to the REO Account as is reasonably requested by the Master
Servicer.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property,
the Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review that:
(i) None of the income from Directly Operating such
Mortgaged Property would be subject to tax as "net income from
foreclosure property" within the meaning of the REMIC Provisions
or would be subject to the tax imposed on "prohibited
transactions" under Section 860F of the Code (either such tax
referred to herein as an "REO Tax"), such Mortgaged Property may
be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO
Property could result in income from such property that would be
subject to an REO Tax, but that a lease of such property to
another party to operate such property, or the performance of
some services by an Independent Contractor with respect to such
property, or another method of operating such property would not
result in income subject to an REO Tax, then the Special Servicer
may (provided, that in the good faith and reasonable judgment of
the Special Servicer, it is commercially reasonable) acquire such
Mortgaged Property as REO Property and so lease or operate such
REO Property; or
(iii) It is reasonable to believe that Directly Operating
such property as REO Property could result in income subject to
an REO Tax and that no commercially reasonable means exists to
operate such property as REO Property without the Trust Fund
incurring or possibly incurring an REO Tax on income from such
property, the Special Servicer shall
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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
shall be managed and operated shall be 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 without materially impairing the Special Servicer's ability to
promptly sell the REO Property for a fair price. 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 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: (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code; or (ii) 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 or an Adverse Grantor Trust Event. Subject to
the foregoing, however, the Special Servicer shall have full power and authority
to do any and all things in connection therewith as are consistent with the
Servicing Standard and, consistent therewith, shall withdraw from the REO
Account, to the extent of amounts on deposit therein with respect to any 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 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
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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 may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract 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;
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(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 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee
may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Sections
2.03(a) and 9.01.
(b) If the Special Servicer has determined in good faith that
any Defaulted Mortgage Loan will become subject to foreclosure or similar
proceedings, the Special Servicer shall promptly so notify in writing the
Trustee and the Master Servicer, whereupon the Trustee shall, within 10 days
after receipt of such notice, notify each Controlling Class Certificateholder.
Any Controlling Class Certificateholder or group of Controlling Class
Certificateholders may, at its or their option (with preference among such
Holders being given to the Holder or group of Holders of Certificates
representing the greatest Percentage Interest in the Controlling Class), during
the 10-Business Day period following receipt of such notice by the Controlling
Class Certificateholders, purchase any such Defaulted Mortgage Loan from the
Trust Fund, at a price equal to the Purchase Price. The Purchase Price for any
Mortgage Loan purchased under this subsection (b) shall be deposited into the
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(s) 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(s) 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(s).
(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, during the immediately following 10-Business Day period,
purchase such Mortgage Loan from the Trust Fund, at a price equal to the
Purchase Price. The Purchase Price for any such Mortgage Loan purchased under
this subsection (c) shall be deposited into the 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
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transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Master Servicer or the Special
Servicer, as applicable, the ownership of such Mortgage Loan. In connection with
any such purchase by the Master Servicer, the Special Servicer shall deliver the
related Servicing File to the Master Servicer.
(d) The Special Servicer, at any time, may offer to sell any
Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or
Section 3.18(c) above, if and when the Special Servicer determines, consistent
with the Servicing Standard, that such a sale would be in the best economic
interests of the Certificateholders (as a collective whole). Such offer shall be
made in a commercially reasonable manner (which, for purposes hereof, includes
an offer to sell without representation or warranty other than customary
warranties of title and condition, if liability for breach thereof is limited to
recourse against the Trust Fund) for a period of not less than 10 days. Subject
to Sections 3.18(h) and 6.11, the Special Servicer shall accept the highest cash
bid received from any Person that constitutes a fair price for such Mortgage
Loan.
The Special Servicer shall use its best efforts to solicit
bids for each REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for by Section 3.16(a).
Subject to Sections 3.18(h) and 6.11, the Special Servicer shall accept the
first (and, if multiple bids are received contemporaneously or subsequently, the
highest) cash bid received from any Person that constitutes a fair price for
such REO Property. If the Special Servicer reasonably believes that it will be
unable to realize a fair price for any REO Property within the time constraints
imposed by Section 3.16(a), then (subject to Section 6.11 ) the Special Servicer
shall dispose of such REO Property upon such terms and conditions as the Special
Servicer shall deem necessary and desirable to maximize the recovery thereon
under the circumstances and, in connection therewith, shall accept the highest
outstanding cash bid, regardless of from whom received.
The Special Servicer shall give the Trustee 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
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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 related Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The Purchase
Price for any such Mortgage Loan or REO Property shall in all cases be deemed a
fair price. Notwithstanding the other provisions of this Section 3.18, no cash
bid from the Special Servicer or any Affiliate thereof shall constitute a fair
price for any Defaulted Mortgage Loan or REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate) have been received. In the event
the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received, then the bid of the Special Servicer or such
Affiliate shall be accepted, provided that the Trustee has otherwise determined,
as provided above in this Section 3.18(e), that such bid constitutes a fair
price for any Defaulted Mortgage Loan or REO Property. Any bid by the Special
Servicer shall be unconditional; and, if accepted, the Defaulted Mortgage Loan
or REO Property shall be transferred to the Special Servicer without recourse,
representation or warranty other than customary representations as to title
given in connection with the sale of a mortgage loan or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, and
further subject to Section 6.11, the Special Servicer shall act on behalf of the
Trustee in negotiating with independent third parties and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Mortgage Loan or REO Property, and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective bidders, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating bids, without the obligation to deposit
such amounts into the 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 Mortgage Loan in accordance with Section 3.09 at the same time that
such Mortgage Loan may be offered or eligible for sale in accordance with this
Section 3.18.
(h) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, the Special Servicer shall not be obligated to accept the highest
cash bid if the Special Servicer determines, in accordance with the Servicing
Standard, that rejection of such bid would be in the best interests of the
Certificateholders (as a collective whole). In addition, the Special Servicer
may, subject to Section 6.11, accept a lower cash bid (from any Person other
than itself or an Affiliate) if it determines, in accordance with the Servicing
Standard, that acceptance of such bid would be in the best interests of the
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Certificateholders (as a collective whole) (for example, if the prospective
buyer making the lower bid is more likely to perform its obligations or the
terms (other than price) offered by the prospective buyer making the lower bid
are more favorable).
SECTION 3.19. Additional Obligations of the Master Servicer;
the Special Servicer's Right to Request that the
Master Servicer Reimburse it for Servicing
Advances; 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 Master Servicer Remittance Date,
without any right of reimbursement therefor, an amount equal to the lesser of
(i) the aggregate amount of all Prepayment Interest Shortfalls, if any, incurred
in connection with Principal Prepayments received during the most recently ended
Collection Period with respect to Mortgage Loans that are not Specially Serviced
Mortgage Loans and have not become REO Loans and (ii) the sum of (1) the
aggregate of all Master Servicing Fees received by the Master Servicer during
such Collection Period with respect to the entire Mortgage Pool (but only to the
extent of that portion thereof calculated at a rate of 0.03% 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) following the Closing Date, notify
the related ground lessor of the transfer of such Mortgage Loan to the Trust
Fund pursuant to this Agreement and inform such ground lessor that any notices
of default under the related Ground Lease should thereafter be forwarded to the
Master Servicer.
(c) No more frequently than once per calendar month, the
Special Servicer may require the Master Servicer, and the Master Servicer shall
be obligated, out of the Master Servicer's own funds, to reimburse the Special
Servicer for any Servicing Advances made by, but not previously reimbursed to,
the Special Servicer, together with interest thereon at the Reimbursement Rate
from the date made to, but not including, the date of reimbursement. Such
reimbursement and any accompanying payment of interest shall be made within ten
(10) days of the request therefor by wire transfer of immediately available
funds to an account designated by the Special Servicer. Upon the Master
Servicer's reimbursement to the Special Servicer of any Servicing Advance and
payment to the Special Servicer of interest thereon, all in accordance with this
Section 3.19(c), the Master Servicer shall for all purposes of this Agreement be
deemed to have made such Servicing Advance at the same time as the Special
Servicer actually made such Servicing Advance, and accordingly, the Master
Servicer shall be entitled to reimbursement for such Servicing Advance, together
with interest thereon in accordance with Sections 3.05(a) and 3.11(g), at the
same time, in the same manner and to the same extent as the Master Servicer
would otherwise have been entitled if it had actually made such Servicing
Advance at the time the Special Servicer did.
(d) 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
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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 five (5) Business Days (or, in an emergency
situation or on an urgent basis, two (2) Business Days) of the Master Servicer's
receipt of such request. If the request is timely and properly made, the Special
Servicer shall be relieved of any obligations with respect to a Servicing
Advance that it so requests the Master Servicer to make (regardless of whether
or not the Master Servicer shall make such Servicing Advance). The Master
Servicer shall be entitled to reimbursement for any Servicing Advance made by it
at the direction of the Special Servicer, together with interest thereon in
accordance with Sections 3.05(a) and 3.11(g), 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(d), the Master Servicer shall not be required to make at the direction of
the Special Servicer, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify the
Special Servicer in writing of such determination.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(f) and 3.20(l)
below, and further subject to Section 6.11, the Special Servicer (or, under the
limited circumstances set forth in Section 3.20(c), the Master Servicer) may, on
behalf of the Trustee, agree to any modification, extension, waiver or amendment
of any term of any Mortgage Loan and respond to various Mortgagor requests for
consent on the part of the mortgagee (including the lease reviews and lease
consents related thereto), without the consent of the Trustee, any
Certificateholder, the Master Servicer (in the case of any such action taken by
the Special Servicer) or, except as expressly set forth below, the Special
Servicer (in the case of any such action taken by the Master Servicer).
(b) All modifications, extensions, waivers or amendments of
any Mortgage Loan (including the lease reviews and lease consents related
thereto) shall be in writing and shall be considered and effected in a manner
consistent with the Servicing Standard.
(c) In the case of any Mortgage Loan other than a Specially
Serviced Mortgage Loan, and subject to the rights of the Special Servicer set
forth below, the Master Servicer shall be responsible for responding to any
request by a Mortgagor for the consent or approval of the mortgagee with respect
to a modification, extension, waiver or amendment of any term thereof, provided
that such consent or approval or such modification, extension, waiver or
amendment would not (except as permitted by Section 3.02(a), Section 3.08(a) and
Section 3.20(l) hereof) affect the amount or timing of any of the payment terms
of such Mortgage 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 relate to any waiver of or granting of consent under a
"due-on-
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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 (other than Specially Serviced Mortgage
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 change of control of
such Mortgagor, (C) cause the transferee to hold more than 49% of
the equity in such Mortgagor or (D) relate to a Mortgage Loan
that represents 2% or more of the then aggregate principal
balance of the Mortgage Pool;
(iv) Approving annual budgets for the related Mortgaged
Property, provided that no such budget (A) relates to a fiscal
year in which an Anticipated Repayment Date occurs, (B) provides
for the payment of operating expenses in an amount equal to more
than 110% of the amounts budgeted therefor for the prior year or
(C) provides for the payment of any material expenses to any
affiliate of the Mortgagor (other than with respect to the
payment of the management fee to any property manager if such
management fee is no more than the management fee in effect on
the Cut-off Date); and
(v) Approving easements or rights of way that do not
materially affect the use or value of a Mortgaged Property or the
Mortgagor's ability to make any payments with respect to the
related Mortgage Loan.
Notwithstanding any provision of this Section 3.20, the Master Servicer, with
the consent of the Special Servicer and the Controlling Class Representative,
which consent, in each case, shall not be unreasonably withheld, may, consistent
with the Servicing Standard, extend the maturity date of a Mortgage Loan for up
to 180 days from the related Stated Maturity Date; provided that (A) (1) the
related Mortgagor is in monetary default or material non-monetary default with
respect to the Mortgage Loan or, in the reasonable, good faith judgment of the
Master Servicer, such default is reasonably foreseeable, and (2) such Mortgage
Loan is not otherwise required to become a Specially Serviced Mortgage Loan
hereunder, (B) in the reasonable, good faith judgment of the Master Servicer,
such modification, extension, waiver or amendment would increase the recovery on
the Mortgage Loan to Certificateholders (as a collective whole), on a present
value basis (the relevant discounting of anticipated collections that will be
distributable to the Certificateholders, to be performed at the related Mortgage
Rate), and (C) such modification, extension, waiver or amendment would not cause
an Adverse REMIC Event in respect of any REMIC Pool or an Adverse Grantor Trust
Event with respect to the Grantor Trust.
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The Master Servicer shall not terminate or replace, or consent
to the termination or replacement of, any property manager with respect to any
Mortgaged Property, and the Master Servicer shall not terminate or change or
consent to the termination or change of the franchise for any Mortgaged Property
operated as a hospitality property, in any event without the consent of the
Special Servicer (it being understood and agreed that (A) the Master Servicer
shall promptly provide the Special Servicer with all information that the
Special Servicer may reasonably request and which information is in the
possession of the Master Servicer, in order to withhold or grant any such
consent, (B) the Special Servicer (for no additional compensation) shall decide
whether to withhold or grant such consent in accordance with the Servicing
Standard and (C) if any consent has not been expressly denied by the earlier of
ten Business Days of the Special Servicer's receipt from the Master Servicer of
all information reasonably requested thereby in order to make an informed
decision or the expiration of the 20-day period referred to below, the Special
Servicer's consent shall be deemed to have been granted). In no event shall more
than 20 days elapse from the date the Master Servicer first became aware of an
obligation under the related Mortgage Loan documents to terminate, replace, or
consent to the termination or replacement of, a property manager or franchise
and the Master Servicer's receipt of the Special Servicer's consent or express
denial thereof. The Master Servicer shall have no rights and no role of the
nature described in this paragraph with respect to a Mortgaged Property securing
a Specially Serviced Mortgage Loan.
Except as permitted by Section 3.02(a), Section 3.08(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, extension, waiver or amendment of any term of any Mortgage
Loan that would cause an Adverse REMIC Event with respect to any REMIC Pool or
an Adverse Grantor Trust Event with respect to the Grantor Trust.
(d) Except as provided in Section 3.02(a), Section 3.08 or
Section 3.20(e), the Special Servicer, on behalf of the Trustee, shall not agree
or consent to any modification, extension, waiver or amendment of any term of
any Mortgage Loan that would:
(i) affect the amount or timing of any scheduled 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; or
(iv) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impair the security for such
Mortgage Loan or reduce the likelihood of timely payment of
amounts due thereon.
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(e) Notwithstanding Section 3.20(d), but subject to Section
6.11 and the second paragraph of this Section 3.20(e), the Special Servicer may
(i) reduce the amounts owing under any Specially Serviced Mortgage Loan by
forgiving principal, accrued interest or any Prepayment Premium or Yield
Maintenance Charge, (ii) reduce the amount of the Monthly Payment on any
Specially Serviced Mortgage Loan, including by way of a reduction in the related
Mortgage Rate, (iii) forbear in the enforcement of any right granted under any
Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan, (iv)
accept a Principal Prepayment on any Specially Serviced Mortgage 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 Mortgage Loan or, in the
reasonable, good faith judgment of the Special Servicer, such default is
reasonably foreseeable, (B) in the reasonable, good faith judgment of the
Special Servicer, such modification, extension, waiver or amendment would
increase the recovery on the Mortgage Loan to Certificateholders (as a
collective whole) to Certificateholders, on a present value basis (the relevant
discounting of anticipated collections that will be distributable to the
Certificateholders, to be performed at the related Mortgage Rate), and (C) such
modification, extension, waiver or amendment would not cause an Adverse REMIC
Event in respect of any REMIC Pool or an Adverse Grantor Trust Event with
respect to the Grantor Trust.
In no event shall the Special Servicer: (i) extend the
maturity date of a Mortgage Loan beyond the date that is two years prior to the
last Rated Final Distribution Date; or (ii) extend the maturity date of any
Mortgage Loan for more than five years beyond its Stated Maturity Date; or (iii)
if the Mortgage Loan is secured by a Ground Lease (but not the related fee
interest), extend the maturity date of such Mortgage Loan beyond the date which
is 20 years (or, to the extent consistent with the Servicing Standard, giving
due consideration to the remaining term of the Ground Lease, 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 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 give any consent, approval or direction regarding the
termination of the related property manager or the designation of any
replacement property manager or, if such Mortgaged Property is hospitality
property, give any consent, approval or direction regarding the termination of
the franchise or the designation of a new franchise, with respect to any
Mortgaged Property that secures a Mortgage Loan that 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, unless: (1) the mortgagee is
not given discretion under the terms of the related Mortgage Loan; or (2) it has
received prior written confirmation from each Rating Agency that such action
will not result in an Adverse Rating Event.
Any party hereto seeking Rating Agency confirmation with
respect to the matters described above shall deliver a Review Package to such
Rating Agency.
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(g) Any payment of interest that is deferred pursuant to any
modification, extension, 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, notwithstanding that the terms of such
modification, extension, 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,
extension, waiver or indulgence or any other matter or thing, the granting of
which is within its discretion pursuant to the terms of the instruments
evidencing or securing the related Mortgage Loan and, further, by the terms of
this Agreement and applicable law, require that such Mortgagor pay to it (i) as
additional servicing compensation, a reasonable or customary fee for the
additional services performed in connection with such request, and (ii) any
related costs and expenses incurred by it. In no event shall the Special
Servicer or Master Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify
the other, any related Sub-Servicers and the Trustee, in writing, of any
modification, extension, waiver or amendment of any term of any Mortgage Loan
(including fees charged the Mortgagor) agreed to by it and the date thereof, and
shall deliver to the Trustee or any related Custodian for deposit in the related
Mortgage File (with a copy to be delivered to or retained by, as applicable, the
Master Servicer), an executed counterpart of the agreement relating to such
modification, extension, waiver or amendment promptly following execution and
delivery thereof, to be followed by an original recorded counterpart promptly
following the recordation (and receipt) thereof.
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Charge in respect of any Mortgage Loan, whether
pursuant to Section 3.02(a) or this Section 3.20, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that had been payable thereto
as Net Default Charges out of such Default Charges immediately prior to such
waiver.
(k) The Master Servicer shall not permit defeasance of any
Mortgage Loan (x) before the earliest date on which defeasance is permitted
under the terms of such Mortgage Loan, or (y) subject in all cases to the terms
of such Mortgage Loan, unless (i) the Defeasance Collateral consists of United
States Treasury obligations), (ii) the Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event in respect of any REMIC
Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust, (iii)
the Master Servicer has notified the Rating Agencies, (iv) the Rating Agencies
have confirmed in writing that such defeasance will not result in an Adverse
Rating Event with respect to any Class of Certificates (provided that the
requirement to obtain such confirmation will be a condition to the defeasance
only if the Master Servicer is able under the related Mortgage Loan documents
and applicable law to prevent the defeasance if such confirmation is not
obtained and the subject Mortgage Loan represents at least 2.0% of the then
aggregate Stated Principal Balance of the Mortgage Pool), and (v) the Master
Servicer has requested and received from the related Mortgagor (A) an Opinion of
Counsel generally to the effect that (1) the Trustee will have a perfected,
first priority security interest in such Defeasance Collateral and (2) that such
defeasance would not result in an Adverse REMIC Event with respect to any REMIC
Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust and (B)
written confirmation from a firm of Independent accountants stating that
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payments made on such defeasance collateral in accordance with the terms thereof
will be sufficient to pay the subject Mortgage Loan in full on or before its
Stated Maturity Date (or, in the case of an ARD Loan, on or before its
Anticipated Repayment Date) and to timely pay each Monthly Payment scheduled to
be due prior thereto but after the defeasance; provided that, if, consistent
with the terms of the related Mortgage Loan documents, the related Mortgagor
delivers cash to purchase the Defeasance Collateral rather than the Defeasance
Collateral itself, the Master Servicer shall purchase the government securities
contemplated by the related Mortgage Loan documents. Subsequent to the second
anniversary of the Startup Day, to the extent that the Master Servicer can, in
accordance with the related Mortgage Loan documents, require defeasance of any
Mortgage Loan in lieu of accepting a prepayment of principal thereunder,
including a prepayment of principal accompanied by a Prepayment Premium, the
Master Servicer shall, to the extent it is consistent with the Servicing
Standard, require such defeasance, provided that the conditions set forth in
clauses (i) through (v) of the preceding sentence have been satisfied. Any
reasonable out-of-pocket expense incurred by the Master Servicer pursuant to
this Section 3.20(k) shall be paid by the Mortgagor of the defeased Mortgage
Loan pursuant to the related Mortgage, Mortgage Note or other pertinent
document, if so allowed by the terms of such documents. The Master Servicer and
the Special Servicer each shall, consistent with the Servicing Standard, enforce
the provisions of the Mortgage Loans it is obligated to service hereunder
relating to defeasance and prepayment restrictions; provided that, if at any
time a court with jurisdiction in the matter shall hold that the related
Mortgagor may obtain a release of the subject Mortgaged Property but is not
obligated to deliver the full amount of the Defeasance Collateral contemplated
by the related Mortgage Loan documents (or cash sufficient to purchase such
defeasance collateral), then (i) if consistent with such court holding and the
related Mortgage Loan documents, the Master Servicer shall refuse to allow the
defeasance of the Mortgage Loan or (ii) if the Master Servicer cannot so refuse
and if the related Mortgagor has delivered cash to purchase the defeasance
collateral, the Master Servicer shall either (A) buy such Defeasance Collateral
or (B) apply such cash to prepay the Mortgage Loan, in either case, in
accordance with the Servicing Standard.
(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) on a
present value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the related
Mortgage Rate) than a refusal to waive the right to such Additional Interest.
The Master Servicer shall have no liability to the Trust, the 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, the Master Servicer shall
immediately give notice thereof to the Depositor (in the case of an LBHI
Mortgage Loan) and UBSPF (in the case of a UBS Mortgage Loan), and if the Master
Servicer is not also the Special Servicer, the Master Servicer shall also
deliver a copy of the related
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Servicing File to the Special Servicer and 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, 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, that if the information,
documents and records requested by the Special Servicer are not contained in the
Servicing File, the Master Servicer shall have such period of time as reasonably
necessary to make such delivery. The Special Servicer may conclusively rely on
the Master Servicer's determination that a Servicing Transfer Event has occurred
giving rise to a Mortgage Loan becoming a Specially Serviced Mortgage Loan. The
Special Servicer shall not be liable or in default hereunder for any reasonable
act or failure to act because of or arising out of the Master Servicer's failure
to deliver information, documents or records with respect to any Specially
Serviced Mortgage Loan in accordance with the requirements hereof.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected 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,
together with any and all new information, documents and records relating to the
subject Mortgage Loan, 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, and the Special Servicer's right to receive the
Special Servicing Fee with respect to such Mortgage Loan, shall terminate, and
the obligations of the Master Servicer to service and administer such Mortgage
Loan shall resume.
Notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Loan, the Master
Servicer and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Loan at anytime that a
continuing Servicing Transfer Event exists with respect to another
Cross-Collateralized Mortgage Loan in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Custodian originals of newly executed
documents included within the definition of "Mortgage File" for inclusion in the
related Mortgage File (with a copy of each such original to the Master
Servicer), and shall provide to the Master Servicer copies of any additional
related Mortgage Loan information, including correspondence with the related
Mortgagor.
(c) On the Business Day following each Determination Date, the
Special Servicer shall deliver to the Master Servicer and, upon request, to 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
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format (the form of such statement to be agreed upon by the Master Servicer and
the Special Servicer) describing, on a loan-by-loan and property-by-property
basis, (1) insofar as it relates to Specially Serviced Mortgage Loans and REO
Properties, the information described in clauses (vi) through (xv) of Section
4.02(a) (with respect to information set forth in such clauses related to prior
Distribution Dates and/or periods, the Special Servicer may conclusively rely on
information furnished to it by the Master Servicer or the Trustee) and, insofar
as it relates to the Special Servicer, the information described in clauses
(xxiv) and (xxx) of Section 4.02(a), (2) the amount of all payments, Insurance
Proceeds and Liquidation Proceeds received, and the amount of any Realized Loss
incurred, with respect to each Specially Serviced Mortgage Loan during the
related Collection Period, and the amount of Insurance Proceeds and Liquidation
Proceeds received, and the amount of any Realized Loss incurred, with respect to
each REO Property during the related Collection Period, (3) the amount, purpose
and date of all Servicing Advances made by the Special Servicer with respect to
each Specially Serviced Mortgage Loan and REO Property during the related
Collection Period, (4) in writing, a brief narrative summary of the status of
each Specially Serviced Mortgage Loan and (5) such additional information
relating to the Specially Serviced Mortgage Loans and REO Properties as the
Master Servicer reasonably requests to enable it to perform its responsibilities
under this Agreement. Notwithstanding the foregoing provisions of this
subsection (c), the Master Servicer shall maintain ongoing payment records with
respect to each of the Specially Serviced Mortgage Loans and REO Properties and
shall provide the Special Servicer with any information reasonably 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), (xi), and (xii) 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 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 90 days thereafter) may not be terminated without cause, unless
expressly so provided therein); (iii) provides that the Trustee, for the benefit
of the Certificateholders, shall be a third party beneficiary under such
agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the Master Servicer or 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 or Special Servicer, as the
case may be, or any Certificateholder shall have any duties under such agreement
or any liabilities arising therefrom; (iv) permits any purchaser of a Mortgage
Loan pursuant to this Agreement to terminate such agreement with respect to such
purchased Mortgage Loan at its option and without penalty; (v) does not permit
the Sub-Servicer to enter into or consent to any modification, extension, waiver
or amendment or otherwise take any action on behalf of the Master Servicer or
the Special Servicer contemplated by Section 3.08, Section 3.09 and Section 3.20
hereof without the consent of such
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Master Servicer or Special Servicer, as the case may be; and (vi) does not
permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund. In addition, each Sub-Servicing
Agreement entered into by the Master Servicer (including any with an effective
date on or before the Closing Date) shall provide that such agreement shall,
with respect to any Mortgage Loan serviced thereunder, terminate at the time
such Mortgage Loan becomes a Specially Serviced Mortgage Loan (or,
alternatively, be subject to the Special Servicer's rights to service the
Mortgage Loan for so long as such Mortgage Loan continues to be a Specially
Serviced Mortgage Loan), and each Sub-Servicing Agreement entered into by the
Special Servicer shall relate only to Specially Serviced Mortgage Loans and
shall terminate with respect to any such Mortgage Loan which ceases to be a
Specially Serviced Mortgage Loan. The Master Servicer and the Special Servicer
shall each deliver to the Trustee and each other copies of all Sub-Servicing
Agreements, as well as any amendments thereto and modifications thereof, entered
into by it promptly upon its execution and delivery of such documents. The
Sub-Servicers in respect of those Sub-Servicing Agreements which are in effect
or being negotiated as of the Closing Date are listed on Exhibit K hereto.
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) and 4.03(d), with 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 in
writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer (i) shall be authorized to transact
business in the state or states in which the related Mortgaged Properties it is
to service are situated, if and to the extent required by applicable law, and
(ii) shall be an approved conventional seller/servicer of mortgage loans for
FHLMC or Fannie Mae or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the
benefit of the Trustee and the Certificateholders, shall (at no expense to the
Trustee, the Certificateholders or the Trust Fund) monitor the performance and
enforce the obligations of their respective Sub-Servicers under the related
Sub-Servicing Agreements. Such enforcement, including 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 covered thereby.
(d) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the performance of their respective
obligations and duties under this Agreement in accordance with the
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provisions hereof to the same extent and under the same terms and conditions as
if each alone were servicing and administering the Mortgage Loans or REO
Properties for which it is responsible.
SECTION 3.23. Representations and Warranties of the Master
Servicer and the Special Servicer.
(a) ORIX, both in its capacity as Master Servicer and in its
capacity as Special Servicer, hereby represents, warrants and covenants to the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) ORIX is a limited liability company, duly organized and
validly existing under the laws of the State of Delaware, and
ORIX 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 ORIX,
and the performance and compliance with the terms of this
Agreement by ORIX, will not violate ORIX'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) ORIX 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 ORIX, enforceable against
ORIX 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 (B) general principles of equity,
regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) ORIX 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 ORIX's
good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of ORIX to perform
its obligations under this Agreement or its financial condition.
(vi) No litigation is pending or, to the best of ORIX's
knowledge, threatened, against ORIX, the outcome of which, in
ORIX's good faith and reasonable judgment, could reasonably be
expected to prohibit ORIX from entering into this Agreement or
materially and adversely affect ORIX's ability 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 ORIX of
or compliance by ORIX with this Agreement or the
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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 ORIX under this
Agreement.
(viii) ORIX possesses all insurance required pursuant to
Section 3.07(c) of this Agreement.
(b) ORIX's representations and warranties 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 or Special Servicer (if any
and regardless of whether the Master Servicer and the Special Servicer are
different Persons) 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, and references to "ORIX" in such
representations and warranties shall be deemed to mean such successor.
SECTION 3.24. Credit Tenant 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 CTL 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 10 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.
Subject to Section 3.11(h), the Master Servicer shall make a
Servicing Advance with respect to a Mortgaged Property subject to a Credit
Tenant 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, if and to the extent that such action is consistent with the
Servicing Standard and the failure to complete such maintenance or repair or
other obligation may give rise to a Maintenance Right
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or Additional Right of the related Credit Tenant. 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 Tenant Lease or
general collections on the Mortgage Pool if so permitted by Section
3.05(a)(vii). The Master Servicer shall notify the Special Servicer of any CTL
Loan in respect of which it has made Servicing Advances pursuant to this Section
3.24. 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
Credit 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).
Three Business Days prior to each Distribution Date, the
Master Servicer shall deliver to the Trustee and the Rating Agencies a report
stating with respect to each CTL Loan as of the related Due Date prior to such
Distribution Date, (i) all publicly available ratings of any
nationally-recognized statistical rating organization for the related Rated
Party as of (A) the Closing Date, (B) the Due Date in the previous month and (C)
the Due Date in the current month, and (ii) whether the related Rated Party has
been placed on a credit watch.
SECTION 3.25. Application of Default Charges.
(a) Any and all Default Charges that are actually collected
with respect to any Mortgage Loan or REO Loan during any Collection Period,
shall be applied for the following purposes and in the following order, in each
case to the extent of the remaining portion of such Default Charges;
first, to pay to the Fiscal Agent, the Trustee, the Master
Servicer or the Special Servicer, in that order, any interest due and
owing to such party on outstanding Advances made thereby with respect
to such Mortgage Loan or REO Loan, as the case may be, as to which such
Default Charges were collected;
second, to pay any other outstanding Additional Trust Fund
Expenses (exclusive of Special Servicing Fees, Liquidation Fees and
Workout Fees) incurred with respect to such Mortgage Loan or REO Loan,
as the case may be, as to which such Default Charges were collected;
third, to reimburse the Trust for any interest on Advances
paid to the Fiscal Agent, the Trustee, the Master Servicer or the
Special Servicer since the Closing Date with respect to such Mortgage
Loan or REO Loan, as the case may be, as to which such Default Charges
were collected, which interest was paid from a source other than
Default Charges on such Mortgage Loan or REO Loan;
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fourth, to reimburse the Trust for any other Additional Trust
Fund Expense (exclusive of Special Servicing Fees, Liquidation Fees and
Workout Fees) incurred and paid since the Closing Date with respect to
such Mortgage Loan or REO Loan, as the case may be, as to which such
Default Charges were collected, which expense was paid from a source
other than Default Charges on such Mortgage Loan or REO Loan; and
fifth, to pay any remaining portion of such Default Charges
(such remaining portion, "Net Default Charges") as additional master
servicing compensation to the Master Servicer, if they were received in
respect of a Mortgage Loan that is not a Specially Serviced Mortgage
Loan, or as additional special servicing compensation to the Special
Servicer, if they were received in respect of a Specially Serviced
Mortgage Loan or REO Loan;
(b) Default Charges applied to reimburse the Trust pursuant to
clauses third and fourth of Subsection (a), are intended to be part of the
amounts to be delivered by the Master Servicer to the Trustee pursuant to the
first paragraph of Section 3.04(b) on or before the Master Servicer Remittance
Date next following the Collection Period during which they were received, for
deposit in the Collection Account, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Loan
and any REO Properties. Default Charges applied to reimburse the Trust pursuant
to clauses third and fourth of Subsection (a) shall be deemed to offset either
interest paid on Advances or other Additional Trust Fund Expenses, depending on
which clause is applicable, in the chronological order in which they were made
or incurred, as applicable (whereupon such interest paid on Advances or such
other Additional Trust Fund Expenses, depending on which clause is applicable,
shall thereafter be deemed to have been paid out of Default Charges).
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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 pursuant to
Section 4.04(a) 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 pursuant to
Section 4.04(a) 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 Principal Balance 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 pursuant to
Section 4.04(a) 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
amount (not to exceed the Class Principal Balance of such Class
of Certificates
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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 Principal Balance
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 pursuant to
Section 4.04(a) 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 Principal Balance 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 pursuant to
Section 4.04(a) 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 Principal Balance 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 pursuant to
Section 4.04(a) 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
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Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates, if any;
(xvii) after the Class Principal Balance of the Class F
Certificates has been reduced to zero, to 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 Principal Balance 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 pursuant to
Section 4.04(a) 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 Principal Balance 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 pursuant to
Section 4.04(a) 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 Principal Balance Certificates pursuant to Section
4.01(a) above or pursuant to any prior clause of this Section
4.01(b));
(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
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Expenses, if any, previously allocated to such Class of
Certificates pursuant to Section 4.04(a) 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 Principal Balance 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 pursuant to
Section 4.04(a) 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 Principal Balance 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 pursuant to
Section 4.04(a) 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 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
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Distribution Date to the Holders of any other Class of Principal
Balance 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 pursuant to
Section 4.04(a) 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 Principal Balance 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 pursuant to
Section 4.04(a) 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 Principal Balance 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 pursuant to
Section 4.04(a) 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 (other than distributions of Net
Prepayment Consideration) 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
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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 (other than distributions of Net
Prepayment Consideration) 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 (other than
distributions of Net Prepayment Consideration) 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 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 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 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
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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 the Letter of Representations among the Depositor,
the Trustee and the initial Depository dated as of the Closing Date and
pertaining to the Book-Entry Certificates.
(g) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund in respect of the
Certificates, and all rights and interests of the Certificateholders in and to
such distributions, shall be as set forth in this Agreement. Neither the Holders
of any Class of Certificates nor any party hereto shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
(h) Except as otherwise provided in Section 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Class of Certificates pursuant to Section 4.04(a), 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 of such Class of Certificates
on such date a notice to the effect that:
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(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 the end of the Interest Accrual Period for 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 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
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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.
SECTION 4.02. Statements to Certificateholders; CMSA Loan
Periodic Update File.
(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;
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(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);
(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) 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 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 30 to 59
days, (B) delinquent 60 to 89 days, (C) delinquent 90 or more
days, (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, and (C) whether the delinquency is in respect of its
Balloon Payment;
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(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, if available, the
Appraised Value of such REO Property as expressed in the most
recent appraisal thereof and the date of such appraisal;
(xiv) with respect to any Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the
related Collection Period, the loan number of such Mortgage Loan
and the Stated Principal Balance of such Mortgage Loan as of the
related Acquisition Date;
(xv) with respect to any REO Property included in the Trust
Fund as to which a Final Recovery Determination was made during
the related Collection Period, (A) the loan number of the related
Mortgage Loan, (B) a brief description of the basis for the Final
Recovery Determination, (C) the aggregate of all Liquidation
Proceeds and other amounts received with respect to such REO
Property during the related Collection Period (separately
identifying the portion thereof allocable to distributions on the
Certificates), (D) the amount of any Realized Loss in respect of
the related REO Loan in connection with such 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);
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(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)
and/or Section 4.03(d);
(xxv) (A) the loan number for each Required Appraisal Loan
and any related Appraisal Reduction Amount (including an itemized
calculation thereof) as of the related 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
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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 supplied to it by a
Mortgagor or third party (subject, in the case of the Master Servicer and the
Special Servicer, to Section 3.22(d)) 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 (subject, in the case of the Master Servicer and the
Special Servicer, to Section 3.22(d)) 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, the Controlling Class Representative, any party hereto or any Person
identified by any Certificateholder or Certificate Owner as a prospective
transferee, via the Trustee's internet website with the use of a password
provided by the Trustee to such Person upon request and, in the case of a
Certificate Owner or a prospective transferee of a Certificate or any interest
therein, upon receipt by the Trustee from such Person of a certification
substantially in the form of Exhibit Y-1 or Exhibit Y-2, as applicable, all
Certificateholder Reports 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. The Trustee
shall also make all NOI Adjustment Worksheets and Operating Statement Analysis
Reports in its possession available via its internet website in the same manner
as the Certificateholder Reports. The Trustee shall also make the Distribution
Date Statement available via its electronic bulletin board; provided that the
Trustee shall have received notice from the Depositor that the Underwriters have
sold the Non-Registered Certificates to unaffiliated third parties. 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 the acceptance of a disclaimer. The Trustee shall not be liable for
the dissemination of information in accordance with this Agreement.
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The Master Servicer may, but is not required to, make
available each month, to Certificateholders, Certificate Owners (that have been
confirmed as such by the Trustee), the Controlling Class Representative
(excluding the Distribution Date Statement and Mortgage Pool Data Update
Report), the Underwriters, the Rating Agencies or any party hereto, the
Certificateholder Reports, any NOI Adjustment Worksheet or Operating Statement
Analysis Report on its internet website. The Master Servicer will make no
representations or warranties as to the accuracy or completeness of any report
not prepared by it and will assume no responsibility for any information for
which it is not the original source.
The Master Servicer's Internet Website shall be located at
"www.orecm.com/cmbs" or at such other address as shall be specified by the
Master Servicer from time to time 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 Master Servicer's internet website, the Master Servicer may require the
acceptance of a disclaimer. The Master Servicer shall not be liable for the
dissemination of information to Certificateholders and Certificate Owners in
accordance with this Agreement. Access to the Master Servicer's Website shall be
coordinated with the Trustee and shall be with the use of a password provided by
the Master Servicer.
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.
Upon receipt of notice from the Depositor that the
Underwriters have sold the Non-Registered Certificates to unaffiliated third
parties, the Trustee shall make available electronically or, if so requested,
forward by hard copy, on each Distribution Date, 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
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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 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, (E) the Trustee shall not disclose any information regarding the
Special Servicer's asset resolution strategy without the prior consent of the
Special Servicer (the Special Servicer's consent to be withheld or given
consistent with the Servicing Standard), and (F) 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, and upon request, to 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), an accurate and complete CMSA Loan Periodic Update File providing the
required information for the Mortgage Loans as of the related Determination Date
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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 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 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,
CMSA Loan Setup File, CMSA Property File and CMSA Financial File.
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, first, by transferring to the
Trustee for deposit in the Collection Account amounts then held in the Custodial
Account for future distribution to Certificateholders in subsequent months in
discharge of such obligations, and second, by remitting its own funds to the
Trustee for deposit in a Collection Account in an amount equal to the remaining
portion of such required P&I Advances. Any amounts held in the Custodial Account
for future distribution and so used to make P&I Advances shall be appropriately
reflected in the Master Servicer's records and replaced by the Master Servicer
by deposit in the Custodial Account on or before the next succeeding
Determination Date (to the extent not previously replaced through the deposit of
Late Collections of the delinquent principal and interest in respect of which
such P&I Advances were made). If, as of 4:00 p.m., New York City time, on any
P&I Advance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no. (214)
237-2040 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (214 ) 237-2010 (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
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Payments) and any REO Loans in the Mortgage Pool 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 the interest portion, but not the principal portion, 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 interest
portion of the subject P&I Advance that would otherwise be required without
regard to this proviso, multiplied by (y) a fraction, the numerator of which is
equal to the Stated Principal Balance of such Mortgage Loan or REO Loan, as the
case may be, net of such Appraisal Reduction Amount, and the denominator of
which is equal to the Stated Principal Balance of such Mortgage Loan or REO
Loan, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made under this Section 4.03 if such P&I Advance
would, if made, constitute a Nonrecoverable P&I Advance. The determination by
the Master Servicer that it has made a Nonrecoverable P&I Advance or that any
proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance,
shall be evidenced by an Officer's Certificate delivered to the Trustee, the
Fiscal Agent and the Depositor on or before the related P&I Advance Date,
setting forth the basis for such determination, together with any other
information that supports such determination, including an appraisal (which
appraisal shall have been conducted by an Independent Appraiser 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 (or, if such P&I
Advance was made prior to the end of any grace period applicable to the subject
delinquent Monthly Payment, for so long as such P&I Advance is outstanding
following the end of such grace period), such interest to be payable: (i) out of
any Default Charges collected on the particular Mortgage Loan or REO Loan as to
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which such P&I Advance relates, subsequent to the accrual of that interest; and
(ii) to the extent that such Default Charges 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
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
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 by the Master Servicer or a Sub-Servicer on its behalf as of the
related P&I Advance Date.
SECTION 4.04. Allocation of Realized Losses and Additional
Trust Fund
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the Trustee
shall determine the amount, if any, by which (i) the then aggregate of the Class
Principal Balances of all the Classes of Principal Balance Certificates, exceeds
(ii) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class P, Class N, Class M, Class
L, Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class C and
Class B Certificates shall be reduced sequentially, in that order, in each case,
until such excess or the related Class Principal Balance is reduced to zero
(whichever occurs first). If, after the foregoing reductions, the amount
described in clause (i) of the second preceding sentence still exceeds the
amount described in clause (ii) of such sentence, then the respective Class
Principal Balances of the Class A-1 Certificates and the Class A-2 Certificates
shall be reduced on a pro rata basis in accordance with the relative sizes of
such Class Principal Balances, until any such remaining excess is reduced to
zero. All such reductions in the Class Principal Balances of the respective
Classes of the Principal Balance Certificates shall constitute allocations of
Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC II Regular Interests on such
date pursuant to Section 4.01(j), the Trustee shall determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests, exceeds (ii) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then the Uncertificated Principal
Balances of REMIC II Regular Interest P, REMIC II Regular Interest N, REMIC II
Regular Interest M, REMIC II Regular Interest L, REMIC II Regular Interest K,
REMIC II Regular Interest J, REMIC II Regular Interest H, REMIC II Regular
Interest G, REMIC II Regular Interest F, REMIC II Regular Interest E, REMIC II
Regular Interest D, REMIC II Regular Interest C and REMIC II Regular Interest B
shall be reduced sequentially, in that order, in each case, until such excess or
the related Uncertificated Principal Balance is reduced to zero (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.
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(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. Any such reductions in the Uncertificated Principal Balances
of the respective REMIC I Regular Interests shall be deemed to constitute
allocations 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 to be made pursuant to Section 4.01 and Article IX and the
actual and deemed allocations of Realized Losses and Additional Trust Fund
Expenses to be made pursuant to Section 4.04. The Trustee shall calculate the
Available Distribution Amount for each Distribution Date and shall allocate such
amount among Certificateholders in accordance with this Agreement, and the
Trustee shall have no obligation to recompute, recalculate or verify any
information provided to it by the Special Servicer or Master Servicer. The
calculations by the Trustee of such amounts shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
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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 X, Class G, 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 and Class F Certificates, $250,000 in the case of the Class X
Certificates, and $250,000 in the case of the remaining Regular Interest
Certificates, and in each such case in integral multiples of $1 in excess
thereof. The Class R-I Certificates, the Class R-II Certificates and the Class
R-III Certificates will be issuable in denominations representing Percentage
Interests in the related Class of not less than 10%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized signatories of the Trustee 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. 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-C4. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Master
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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, within 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 the global certificate(s) representing
a Class of Book-Entry Non-Registered Certificates, a transfer thereof to a
successor Depository or to the applicable Certificate Owner(s) 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 that relates to a Rule 144A/IAI Global 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
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
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without registration under the Securities Act and that the prospective
Transferee is a Qualified Institutional Buyer or an Institutional Accredited
Investor. Any interest in a Book-Entry Non-Registered Certificate that relates
to a Rule 144A/IAI Global Certificate shall not be transferred to any Person who
takes delivery other than in the form of an interest in such Rule 144A/IAI
Global Certificate. If any Transferee of an interest in a Book-Entry
Non-Registered Certificate that relates to a Rule 144A/IAI Global 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.
Notwithstanding the preceding paragraph, any interest in the Rule
144A/IAI Global Certificate in respect of the Class H Certificates may be
transferred (without delivery of any certificate or Opinion of Counsel described
in clauses (i) and (ii) of the preceding paragraph) by the Depositor or any
Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Rule 144A/IAI Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Regulation S Global Certificate, that is equal to the denomination of
beneficial interests in the Class H Certificates to be transferred. Upon
delivery to the Certificate Registrar of such certification and orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Rule 144A/IAI
Global Certificate in respect of the Class H Certificates, and increase the
denomination of the Regulation S Global Certificate for such Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions.
On and prior to the Release Date, beneficial interests in the
Regulation S Temporary Global Certificate in respect of the Class H Certificates
shall not be transferred to any Person who takes delivery other than in the form
of a beneficial interest in such Regulation S Temporary Global Certificate, and
the Certificate Owner desiring to effect such transfer shall be required to
obtain from such Certificate Owner's prospective Transferee a Regulation S
Certificate. Not earlier than the Release Date, beneficial interests in the
Regulation S Temporary Global Certificate in respect of the Class H Certificates
shall be exchangeable for beneficial interests in the Regulation S Permanent
Global Certificate for such Class. Beneficial interests in the Regulation S
Temporary Global Certificate in respect of the Class H Certificates may be held
only through Euroclear or Clearstream. The Regulation S Permanent Global
Certificate in respect of the Class H Certificates shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository.
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
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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 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 the global certificate(s) representing
a Class of Book-Entry Non-Registered Certificates, any transfer thereof to a
successor Depository or to the applicable Certificate Owner(s) 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 that relates to a Rule 144A/IAI
Global 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) in the case of a Class X Certificate that is being
acquired by or on behalf of a Plan in reliance on any of the Prohibited
Transaction Exemptions, a certification to the effect that such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer, any Exemption Favored Party or
any Mortgagor with respect to Mortgage Loans constituting more than 5% of the
aggregate unamortized principal balance of all the Mortgage Loans determined as
of the Closing Date, or by any Affiliate of such Person, and (Z) agrees that it
will obtain from each of its Transferees that are Plans a written representation
that such Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (iii)(X) and (iii)(Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are Plans a
similar written representation regarding satisfaction of the requirements of the
immediately preceding clauses (iii)(X) and (iii)(Y); or (iv) a certification of
facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee or such Certificate Owner, as the case may be, that
such transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or result in the imposition of an excise tax under Section 4975
of the Code. It is hereby acknowledged that the forms of certification attached
hereto as Exhibit G-1 (in the case of Definitive Non-Registered Certificates)
and Exhibit G-2 (in the case of ownership interests in Book-Entry Non-Registered
Certificates) are acceptable for purposes of the preceding sentence. If any
Transferee of a Subordinate Certificate (including a Registered 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
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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.
(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 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
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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.
(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
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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.
(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 evidencing a like aggregate Percentage Interest
in such Class.
(g) At the option of any Holder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
evidencing a like aggregate Percentage Interest in such Class 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
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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 G, Class X, 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. The Class X, Class H and Class J Certificates
initially sold in reliance on Rule 144A or to Institutional Accredited Investors
shall be represented by the Rule 144A/IAI Global Certificate for such Class,
which shall be deposited with the Trustee as custodian for the Depository and
registered in the name of Cede &Co. as nominee of the Depository. The Class H
Certificates initially sold in offshore transactions in reliance on Regulation S
shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Trustee as custodian for the
Depository. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer,
the Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or
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(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, 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 each of them may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of Definitive Certificates
for purposes of evidencing ownership of any Class of Registered Certificates,
the registered holders of such Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
(d) Notwithstanding any other provisions contained herein,
neither the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the transfer of ownership interests in any
Certificate (including but not limited to any Non-Registered Certificate or any
Subordinate Certificate) which interests are transferable through the book-entry
facilities of the Depository.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of actual notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
like Percentage Interest. Upon the issuance of any new Certificate under this
Section, the Trustee and the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
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
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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 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.
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 for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer against any liability to the Trust Fund, the Trustee or the
Certificateholders, for the breach of a representation, warranty or covenant
made herein by such party, or against any expense or liability specifically
required to be borne by such party without right of reimbursement pursuant to
the terms hereof, or against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
obligations or duties hereunder. The Depositor, the Master Servicer, the Special
Servicer and any
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director, manager, member, 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, manager, member, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
reasonable expense (including reasonable 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. In such event, the reasonable legal expenses
and costs of such action, and any liability resulting therefrom, shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor, the Master
Servicer and the Special Servicer shall be entitled to be reimbursed therefor
from the Custodial Account as provided in Section 3.05. In no event shall the
Master Servicer or the Special Servicer be liable or responsible for any action
taken or omitted to be taken by the other of them (unless they are the same
Person or Affiliates) or by the Depositor, the Trustee or any Certificateholder.
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer.
The Master Servicer and the Special Servicer may each 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 6.09 or 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
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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 Section 3.22, delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties, covenants
or obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee and/or the Special
Servicing Fee, as applicable, that accrues pursuant hereto from and after the
date of such transfer shall be payable to such successor.
SECTION 6.05. Rights of Depositor and Trustee in Respect of
Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford
the Depositor, each Underwriter and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder. Upon reasonable request, the Master Servicer
and the Special Servicer shall each furnish the Depositor, each Underwriter and
the Trustee with its most recent publicly available financial statements and
such other non-proprietary information as the Master Servicer or the Special
Servicer, as the case may be, shall determine in its sole and absolute
discretion as it possesses, which is relevant to the performance of its duties
hereunder and which it is not prohibited by applicable law or contract from
disclosing. The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicer and the Special Servicer hereunder and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted obligation
of the Master Servicer or Special Servicer hereunder or exercise the rights of
the Master Servicer and the Special Servicer hereunder; provided, however, that
neither the Master Servicer nor the Special Servicer shall be relieved of any of
its obligations hereunder by virtue of such performance by the Depositor or its
designee, and provided, further, that the Depositor may not exercise any right
pursuant to Section 7.01 to terminate the Master Servicer or the Special
Servicer as a party to this Agreement. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer
to Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer
shall each furnish such reports, certifications and information as are
reasonably requested by the Trustee in order to enable it to perform its duties
hereunder.
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SECTION 6.07. Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to
Cooperate with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer 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. The Controlling Class Representative shall
be required to keep all non-public information received by it in such capacity
pursuant to this Agreement confidential and, upon its designation as such, shall
deliver to the Trustee a confirmation to such effect. Upon its acquisition of
all the Class P Certificates, Allied Capital Corporation will be the Controlling
Class Representative. Such Holder or Holders shall so designate a Person to
serve as replacement Special Servicer by the delivery to the Trustee, the Master
Servicer and the existing Special Servicer of a written notice stating such
designation. The Trustee shall, promptly after receiving any such notice,
deliver to the Rating Agencies an executed Notice and Acknowledgment in the form
attached hereto as Exhibit I-1. If such Holders have not replaced the Special
Servicer within 30 days of such Special Servicer's resignation or the date such
Special Servicer has ceased to serve in such capacity, the Trustee shall
designate a successor Special Servicer, subject to removal by the Controlling
Class and appointment of a successor thereto pursuant to the terms of this
Section 6.09. Any designated Person (whether designated by Holders of the
Controlling Class or by the Trustee) shall become the Special Servicer on the
date as of which the Trustee shall have received all of the following: (1)
written confirmation from all of the Rating Agencies that the appointment of
such Person will not result in 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, subject to
customary limitations, 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
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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 the Custodial Account, a Servicing
Account, a Reserve Account or the REO Account or should have been delivered to
the Master Servicer or that are thereafter received with respect to Specially
Serviced Mortgage Loans and REO Properties. The Trustee shall notify the other
parties hereto and the Certificateholders of any termination of the Special
Servicer and appointment of a new Special Servicer in accordance with this
Section 6.09.
Any out-of-pocket costs and expenses incurred in connection
with the removal of a Special Servicer and its replacement by a Person
designated by the Holder or Holders of Certificates evidencing a majority of the
Voting Rights allocated to the Controlling Class, that are not paid by the
replacement Special Servicer shall be paid by such Holder or Holders.
(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 for this purpose, omitting to take action)
that is not expressly prohibited by the terms hereof and would not, in the
Master Servicer's or the Special Servicer's reasonable, good faith judgment,
violate the Servicing Standard, but that, if taken, might nonetheless, in the
Master Servicer's or the Special Servicer's good faith judgment, be considered
by other Persons to violate the Servicing Standard, then the Master Servicer or
the Special Servicer may (but need not) seek the approval of the
Certificateholders to such action by delivering to the Trustee a written notice
that (a) states that it is delivered pursuant to this Section 6.10, (b)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Master Servicer or an Affiliate thereof or the Special Servicer or
an Affiliate thereof, as appropriate, and (c) describes in reasonable detail the
action that the Master Servicer or the Special Servicer proposes to take. The
Trustee, upon receipt of such notice, shall forward it to the Certificateholders
(other than the Master Servicer and its Affiliates or the Special Servicer and
its Affiliates, as appropriate), together with such instructions for response as
the Trustee shall reasonably determine. If at any time Certificateholders
holding greater than 50% of the Voting Rights of all Certificateholders
(calculated without regard to the Certificates beneficially owned by the Master
Servicer or its Affiliates or the Special Servicer or its Affiliates, as
appropriate) shall have failed to object in writing to the proposal described in
the written notice, and if the Master Servicer or the Special
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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 Rights and 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 and the Controlling Class Representative has not objected in writing
within 10 Business Days of having been notified thereof and having been provided
a Review Package and 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 Mortgage Loans
as come into and continue in default;
(ii) any modification, extension, amendment or waiver of a
monetary term (including the timing of payments) or any material
non-monetary term of a Specially Serviced Mortgage Loan;
(iii) any proposed sale of a Specially Serviced Mortgage
Loan or REO Property (other than in connection with the
termination of the Trust Fund) for less than the Purchase Price;
(iv) any acceptance of a discounted payoff with respect to a
Specially Serviced Mortgage Loan;
(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 Specially Serviced
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 Specially Serviced 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 with respect to any Mortgage Loan;
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(ix) any acceptance of an assumption agreement releasing a
borrower from liability under a Mortgage Loan; and
(x) any acceptance of a change in the property management
company or, if applicable, hotel franchise for any Mortgaged
Property, to the extent Special Servicer consent is required;
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), the Special Servicer may take any such action without waiting
for the Controlling Class Representative's response.
In addition, the Controlling Class Representative may direct
the Special Servicer to take, or to refrain from taking, such actions as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein subject to Section 6.11(b). Upon reasonable request, the
Special Servicer shall provide the Controlling Class Representative with any
information in the Special Servicer's possession with respect to such matters,
including its reasons for determining to take a proposed action; provided that
such information shall also be provided, in a written format, to the Trustee,
who shall make it available for review pursuant to Section 8.14(b).
Each of the Master Servicer and the Special Servicer shall
notify the Controlling Class Representative of any release or substitution of
collateral for a Mortgage Loan even if such release or substitution is in
accordance with such Mortgage Loan.
(b) Notwithstanding anything herein to the contrary, no
advice, direction or objection from or by the Controlling Class Representative,
as contemplated by Section 6.11(a), may (and the Special Servicer shall ignore
and act without regard to any such advice, direction or objection that the
Special Servicer has determined, in its reasonable, good faith judgment, will)
require or cause the Special Servicer to violate any provision of this Agreement
(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.
(c) The Controlling Class Representative will have no
liability to the Certificateholders for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that the Controlling Class Representative
will not be protected against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or 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: (i) the Controlling Class Representative may, and is
permitted hereunder to, have
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special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) the Controlling Class Representative may,
and is permitted hereunder to, act solely in the interests of the Holders of the
Controlling Class; (iii) the Controlling Class Representative does not have any
duties to the Holders of any Class of Certificates other than the Controlling
Class; (iv) 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;
(v) the Controlling Class Representative shall not be deemed to have been
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 the Controlling Class Representative shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Controlling Class Representative, any Holder of
the Controlling Class or any director, officer, employee, agent or principal
thereof for having so acted.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of
the following events:
(i) any failure by the Master Servicer to deposit into the
Custodial Account, any amount, including a P&I Advance, required
to be so deposited or remitted by it under this Agreement; or
(ii) any failure by the Special Servicer to deposit into the
REO Account or to deposit into, or to remit to the Master
Servicer for deposit into, the Custodial Account, any amount
required to be so deposited or remitted under this Agreement,
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 failure continues unremedied until 11:00
a.m. (New York City time) on the applicable Distribution Date; or
(iv) any failure by the Master Servicer or the Special
Servicer to timely make any Servicing Advance required to be made
by it hereunder, which Servicing Advance remains unmade for a
period of three Business Days following the date on which notice
shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by the Trustee as provided in
Section 3.11(f); 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 failure 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 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 30 days to effect such cure so long as the Master
Servicer or the Special Servicer, as the case may be, has
commenced to cure such failure within the initial 30-day period
and has provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is diligently
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, which breach
continues
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unremedied for a period of 30 days after the date on which
written notice of such breach, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to the
Master Servicer or the Special Servicer, as the case may be (with
a copy to each other party hereto), by the Holders of
Certificates entitled to at least 25% of the Voting Rights,
provided, however, that with respect to any such breach which is
not curable within such 30-day period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional
cure period of 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
with an Officer's Certificate certifying that it has diligently
pursued, and is diligently 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,
undismissed 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 Moody's to the
Certificates has been qualified, downgraded or withdrawn, or
otherwise made the subject of a "negative" credit watch, which
Moody's has determined, and given notice in writing (including
through a publication or newsletter) or electronically (including
through an internet website), is solely or in material part a
result of the Master Servicer or Special Servicer, as the case
may be, acting in such capacity; or
(xi) the receipt by the Trustee of notice from Moody's to
the effect that the Master Servicer or the Special Servicer, as
the case may be, is no longer approved by Moody's 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 to be made the subject of a
"negative" credit watch unless an approved servicer is
substituted therefor; or
(xii) the Master Servicer or the Special Servicer is removed
from S&P's approved master servicer list or special servicer
list, as the case may be, and the ratings of any of the
Certificates by S&P are qualified, downgraded or withdrawn in
connection with the removal.
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When a single entity acts as the Master Servicer and the
Special Servicer, an Event of Default in one capacity shall constitute an Event
of Default in the other capacity.
(b) If any Event of Default described in clauses (i) - (ix)
and (xii) of subsection (a) above shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights, the Trustee shall, by notice in
writing to the Defaulting Party (with a copy of such notice to each other party
hereto and the Rating Agencies) terminate, subject to Section 7.01(d), all of
the rights and obligations (but not the liabilities for actions and omissions
occurring prior thereto) of the Defaulting Party under this Agreement and in and
to the Trust Fund, other than its rights, if any, as a Certificateholder
hereunder. If any Event of Default described in clauses (x) and (xi) of
subsection (a) above shall occur with respect to the Master Servicer or the
Special Servicer (in either case, under such circumstances, for purposes of this
Section 7.01(b), the "Defaulting Party"), the Trustee shall, by notice in
writing (to be sent immediately by facsimile transmission) to the Defaulting
Party (with a copy of such notice to each other party hereto and the Rating
Agencies), terminate, subject to Section 7.01(d), all of the rights and
obligations (but not the liabilities for actions and omissions occurring prior
thereto) of the Defaulting Party under this Agreement and in and to the Trust
Fund, other than its rights, if any, as a Certificateholder hereunder, within 30
days following the occurrence of such Event of Default. From and after the
receipt by the Defaulting Party of such written notice of termination, all
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates (other than as a holder of any Certificate), the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this section, and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Defaulting Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Master Servicer and the Special
Servicer each agree that, if it is terminated pursuant to this Section 7.01(b),
it shall promptly (and in any event no later than 10 Business Days subsequent to
its receipt of the notice of termination) provide the Trustee with all documents
and records, including those in electronic form, requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including (i) if the Master Servicer is
the Defaulting Party, the immediate transfer to the Trustee or a successor
Master Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Master Servicer to the Custodial
Account, the Collection Account, 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 (ii) if the Special Servicer is the
Defaulting Party, the transfer within two Business Days to the Trustee or a
successor Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Special Servicer to the
REO Account, the Custodial Account, a Servicing Account or a Reserve Account or
should have been delivered to the Master Servicer or that are thereafter
received by or on behalf of it with respect to any Mortgage 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
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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), (xi) or (xii), and if the terminated
Master Servicer provides the Trustee with the appropriate "request for proposal"
materials within five Business Days following 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; 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;
and provided, further, that (i) the Controlling Class Representative shall have
consented, within two Business Days of the Trustee's request for the Controlling
Class Representative's consent to the Qualified Bidders from whom bids are to be
solicited, such consent not to be unreasonably withheld, or (ii) two Business
Days have expired without response from the Controlling Class Representative to
the Trustee's request for the Controlling Class Representative's consent to the
Qualified Bidders from whom bids are to be solicited, in which event the
Controlling Class Representative's consent shall be deemed granted. 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 sub-service each of the Mortgage Loans not subject
to a Sub-Servicing Agreement at a sub-servicing fee rate per annum equal to the
Master Servicing Fee Rate minus three (3) 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
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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.
The terminated Master Servicer shall be responsible for all
out-of-pocket expenses incurred in connection with the attempt to sell its
rights to service the Mortgage Loans, which expenses are not reimbursed to the
party that incurred such expenses pursuant to the preceding paragraph.
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.
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 all (and the former Master Servicer or the
Special Servicer, as the case may be, shall cease to have any) of 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 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 as the successor to
the resigning or terminated 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 resigning or terminated Master Servicer or the
Special Servicer, as the case may be, hereunder; provided, however, that no such
appointee shall succeed to the rights and obligations of the Master Servicer or
Special Servicer hereunder 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 appointee makes the applicable representations and
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warranties set forth in Section 3.23; and provided, further, that in the case of
a resigning or terminated Special Servicer, such appointment shall be subject to
the rights of the Holders of Certificates evidencing a majority of the Voting
Rights allocated to the Controlling Class to designate a successor pursuant to
Section 6.09. No appointment of a successor to the Master Servicer or the
Special Servicer hereunder shall be effective until the assumption by the
successor to such party of all its responsibilities, duties and liabilities
under this Agreement. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. In connection with any such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans as it and such successor
shall agree, subject to the terms of this Agreement; provided, however, that no
such compensation shall be in excess of that permitted the resigning or
terminated party hereunder. Such successor and the other parties hereto shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than 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 and
the Rating Agencies notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder, may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii), (iii) or (x)-(xii) of Section 7.01(a) may be
waived only by all of the Certificateholders of the affected Classes. Upon any
such waiver of an Event of Default, such Event of Default shall cease to exist
and shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
Voting Rights with respect to the matters described above.
SECTION 7.05. Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as
such Event of Default shall not have been remedied, the Trustee, in addition to
the rights specified in Section 7.01, shall have the right, in its own name and
as trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
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therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiver of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default occurs and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs; provided that if the Trustee is acting as Master
Servicer or Special Servicer, it shall act in accordance with the Servicing
Standard. Any permissive right of the Trustee contained in this Agreement shall
not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement (other than the Mortgage
Files, the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform to the requirements of this
Agreement. If any such instrument is found not to conform to the requirements of
this Agreement in a material manner, the Trustee shall take such action as it
deems appropriate to have the instrument corrected. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer, and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and
after the curing of all such Events of Default which may have
occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Agreement;
(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by
it in good faith in accordance with the direction of Holders of
Certificates entitled to at least 25% of the Voting Rights
relating to the time, method and
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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, 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,
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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 the Custodial Account or any other
account by or on behalf of the Depositor, the Master Servicer or the Special
Servicer. The Trustee and the Fiscal Agent shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer, and accepted by the Trustee in good faith,
pursuant to this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent or any agent of the Trustee and
the Fiscal Agent, in its individual or any other capacity, may become the owner
or pledgee of Certificates with (except as otherwise provided in the definition
of "Certificateholder") the same rights it would have if it were not the
Trustee, the Fiscal Agent or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
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 the Trustee
Fee for such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates, as compensation for all services rendered by the
Trustee in the execution of the trusts
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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 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" and "AA" (or, if a Fiscal Agent meeting
the requirements of Section 8.17(a) is then currently acting in such capacity,
of at least "A3" and "A-") from
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Moody's and S&P, 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 and all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Depositor by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Master Servicer,
the Special Servicer and the Certificateholders by the Depositor. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee shall fail (other than by reason of the failure of either the Master
Servicer or the Special Servicer to timely perform its obligations hereunder or
as a result of other circumstances beyond the Trustee's reasonable control), to
timely deliver or otherwise make available in accordance with this Agreement any
current or revised Distribution Date Statement, CMSA Loan Periodic Update File,
CMSA Property File, CMSA Financial File or other report or statement required by
Section 4.02 and such failure shall continue unremedied for a period of five
days, or if a tax is imposed or threatened with respect to the Trust Fund by any
state in which the Trustee is located or in which it holds any portion of the
Trust Fund, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Depositor and the Master Servicer by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument shall be
delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the successor trustee so appointed.
(c) The Holders of Certificates entitled to 51% 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
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delivered to the Master Servicer, one complete set to the Trustee so removed and
one complete set to the successor trustee so appointed. A copy of such
instrument shall be delivered to the Depositor, the Special Servicer and the
remaining Certificateholders by the successor trustee 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.
(b) No successor trustee shall accept appointment as provided
in this Section 8.08, unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Master Servicer, the
Special Servicer and the Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal
Agent.
Any entity into which the Trustee or the Fiscal Agent may be
merged or converted, or with which the Trustee or the Fiscal Agent may be
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Trustee or the Fiscal Agent shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee or the Fiscal Agent, as the case may be, hereunder,
provided such entity shall be eligible under the
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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
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.
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SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
either Mortgage Loan Seller or any Affiliate of any of them. Neither the Master
Servicer nor the Special Servicer shall have any duty to verify that any such
Custodian is qualified to act as such in accordance with the preceding sentence.
The Trustee may enter into agreements to appoint a Custodian which is not the
Trustee, provided that, such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
does not permit the Custodian any rights of indemnification that may be
satisfied out of assets of the Trust Fund. The appointment of one or more
Custodians shall not relieve the Trustee from any of its obligations hereunder,
and the Trustee shall remain responsible for all acts and omissions of any
Custodian. In the absence of any other Person appointed in accordance herewith
acting as Custodian, the Trustee agrees to act in such capacity in accordance
with the terms hereof. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Custodian, any provision or requirement herein
requiring notice or any information or documentation to be provided to the
Custodian shall be construed to require that such notice, information or
documents also be provided to the Trustee. Any Custodian hereunder shall at all
times maintain a fidelity bond and errors and omissions policy in amounts
customary for custodians performing duties similar to those set forth in this
Agreement and, in any event, satisfying the same requirements (including as to
the insurer) as are applicable to any such bond or policy required to be
maintained by the Master Servicer pursuant to Section 3.07.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an
Authenticating Agent, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of the Authenticating Agent. In the absence of any other Person
appointed in accordance herewith acting as Authenticating Agent, the Trustee
hereby agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Authenticating Agent, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Authenticating Agent
shall be construed to require that such notice, information or documentation
also be provided to the Trustee.
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(b) Any Person into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion, or consolidation to which any
Authenticating Agent shall be a party, or any Person succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this
Section 8.12 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent appointed in accordance with this Section 8.12 by giving
written notice of termination to such Authenticating Agent, the Master Servicer
and the Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 8.12, the Trustee may
appoint a successor Authenticating Agent, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Certificate
Registrar and the Depositor and shall mail notice of such appointment to all
Holders of Certificates; provided, however, that no successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.12. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent.
SECTION 8.13. Appointment of 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 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
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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 and
their designees, the Controlling Class Representative and, subject to the
succeeding paragraph, any Certificateholder, Certificate Owner or Person
identified to the Trustee as a prospective Transferee of a Certificate or an
interest therein, originals and/or copies of the following items: (i) the
Prospectus, any private placement memorandum and any other disclosure document
relating to the Certificates, in the form most recently provided to the Trustee
by the Depositor or by any Person designated by the Depositor; (ii) this
Agreement, each Sub-Servicing Agreement delivered to the Trustee since the
Closing Date and any amendments hereto or thereto; (iii) all Certificateholder
Reports made available to Certificateholders pursuant to Section 4.02(a) since
the Closing Date; (iv) all Annual Performance Certifications delivered by the
Master Servicer and the Special Servicer, respectively, to the Trustee since the
Closing Date; (v) all Annual Accountants' Reports caused to be delivered by or
on behalf of the Master Servicer and the Special Servicer, respectively, to the
Trustee since the Closing Date; (vi) any and all notices and reports delivered
to the Trustee with respect to any Mortgaged Property as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied; (vii) each of the Mortgage Files, including any and all
modifications, extensions, waivers and amendments of the terms of a Mortgage
Loan entered into or consented to by the Master Servicer or the Special Servicer
and delivered to the Trustee pursuant to Section 3.20; (viii) the most recent
appraisal for each Mortgaged Property and REO Property that has been delivered
to the Trustee (each appraisal obtained hereunder with respect to any Mortgaged
Property or REO Property to be delivered to the Trustee by the Master Servicer
or Special Servicer, as applicable, promptly following its having been
obtained); (ix) any and all Officer's Certificates and other evidence delivered
to or by the Trustee to support its, the Master Servicer's, the Special
Servicer's or the Fiscal Agent's, as the case may be, determination that any
Advance was (or, if made, would be) a Nonrecoverable Advance; (x) any and all
information provided to the Trustee pursuant to Section 6.11(a); (xi) the
Schedule of Exceptions to Mortgage File Delivery prepared by the Trustee
pursuant to Section 2.02(a) and any exception report prepared by the Trustee
pursuant to Section 2.02(b); (xii) all notices of a breach of representation and
warranty given by or received by the Trustee with respect to any party hereto;
and (xiii) any Officer's Certificate delivered to the Trustee by the Special
Servicer in connection with a Final Recovery Determination pursuant to Section
3.09(h). The Trustee shall provide copies of any and all of the foregoing items
upon written request of any of the parties set forth in the previous sentence;
however, except in the case of the Rating
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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 or the Special Servicer; and, upon receipt, the Trustee
shall make such items available to the requesting Certificateholder or
Certificate Owner.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Trustee shall require: (i) in the case
of Certificate Owners, a written confirmation executed by the requesting Person
substantially in the form of Exhibit Y-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 executed by the requesting
Person substantially in the form of Exhibit Y-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;
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(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 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;
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(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 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.
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SECTION 8.16. Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly
organized, validly existing and in good standing under the laws
of the United States of America.
(ii) The execution and delivery of this Agreement by the
Trustee, and the performance and compliance with the terms of
this Agreement by the Trustee, will not violate the Trustee's
organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain
jurisdictions in which any part of the Trust Fund may be located
require that a co-trustee or separate trustee be appointed to act
with respect to such property as contemplated by Section 8.10,
the Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(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
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the lack of consent, approval, authorization or order would not
have a material adverse effect on the performance by the Trustee
under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder
in accordance with Section 8.06.
(b) The representations and warranties of the Trustee set
forth in Section 8.16(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations,
warranties and covenants, the party discovering such breach shall give prompt
written notice thereof to the other parties hereto.
(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 S&P (or,
in the case of either Rating Agency, such lower rating as will not (as confirmed
in writing by such Rating Agency) result in 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
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successor Trustee shall use its best efforts to make, insofar as such
appointment is necessary for such successor Trustee to satisfy the eligibility
requirements of Section 8.06). Any successor fiscal agent so appointed shall be
required to execute and deliver to the other parties hereto a written agreement
to assume and perform the duties of the Fiscal Agent set forth in this
Agreement; provided that no such successor shall become Fiscal Agent hereunder
unless either (i) it satisfies the rating requirements of Section 8.17(a) or
(ii) the Trustee shall have received written confirmation from each Rating
Agency that the 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
and the Certificateholders in writing of the appointment, resignation or removal
of any Fiscal Agent.
SECTION 8.18. Representations and Warranties of Fiscal Agent.
(a) The Fiscal Agent hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as the
Closing Date, that:
(i) The Fiscal Agent is a banking association duly
organized, validly existing and in good standing under the laws
of the Netherlands.
(ii) The execution and delivery of this Agreement by the
Fiscal Agent, and the performance and compliance with the terms
of this Agreement by the Fiscal Agent, will not violate the
Fiscal Agent's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in a material breach of,
any material agreement or other instrument to which it is a party
or by which it is bound.
(iii) The Fiscal Agent has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the other parties hereto, constitutes a valid,
legal and binding obligation of the Fiscal Agent, enforceable
against the Fiscal Agent in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Fiscal Agent is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation,
in the Fiscal Agent's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of
the Fiscal Agent to perform its obligations under this Agreement
or the financial condition of the Fiscal Agent.
(vi) No litigation is pending or, to the best of the Fiscal
Agent's knowledge, threatened against the Fiscal Agent that, if
determined adversely to the Fiscal Agent, would
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prohibit the Fiscal Agent from entering into this Agreement or,
in the Fiscal Agent's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of
the Fiscal Agent to perform its obligations under this Agreement
or the financial condition of the Fiscal Agent.
(vii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Fiscal Agent of or compliance by
the Fiscal Agent with this Agreement, or the consummation of the
transactions contemplated by this Agreement, has been obtained
and is effective, except where the lack of consent, approval,
authorization or order would not have a material adverse effect
on the performance by the Fiscal Agent under this Agreement.
(b) The representations and warranties of the Fiscal Agent set
forth in Section 8.18(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall given prompt written notice
thereof to the other parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made,
as of the date of its succession, each of the representations and warranties set
forth in Section 8.18(a) subject to such appropriate modifications to the
representations and warranties set forth in Section 8.18(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
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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),
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
members, managers, officers, directors, employees and/or 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.
Any Controlling Class Certificateholder (with priority among
two or more such Holders being given to the Holder of Certificates representing
the greatest Percentage Interest in the Controlling Class), the Depositor,
Lehman Brothers, the Special Servicer or the Master Servicer, in that order of
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 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 Custodial Account, an
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amount in immediately available funds equal to the above-described purchase
price; 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 Master Servicer
Remittance Date from the Custodial Account pursuant to the first paragraph of
Section 3.04(b), together with any other amounts on deposit in the Custodial
Account that would otherwise be held for future distribution. Upon confirmation
that such final deposits have been made, the Trustee shall release or cause to
be released to the Master Servicer, the Special Servicer, the 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 pursuant to this
paragraph shall be on a servicing-released basis.
Notice of any termination shall be given promptly by the
Trustee by letter to Certificateholders mailed (a) if such notice is given in
connection with the Depositor's, the Master Servicer's, the Special Servicer's,
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.
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
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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 pursuant to Section
4.04(a) 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 pursuant to
Section 4.04(a) 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;
(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 pursuant to
Section 4.04(a) 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 pursuant to
Section 4.04(a) and not previously reimbursed;
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(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 pursuant to
Section 4.04(a) 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 pursuant to
Section 4.04(a) and not previously reimbursed;
(xix) to distributions of interest to the Holders of the
Class G Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class G Certificates for
such Distribution Date and, to the extent not previously paid,
for all prior Distribution Dates;
(xx) to distributions of principal to the Holders of the
Class G Certificates, up to an amount equal to the Class
Principal Balance of the Class G Certificates outstanding
immediately prior to such Distribution Date;
(xxi) to distributions to the Holders of the Class G
Certificates, up to an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class G Certificates pursuant to
Section 4.04(a) 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;
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(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 pursuant to
Section 4.04(a) 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 pursuant to
Section 4.04(a) 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 pursuant to
Section 4.04(a) and not previously reimbursed;
(xxxi) to distributions of interest to the Holders of the
Class L Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class L Certificates for
such Distribution Date and, to the extent not previously paid,
for all prior Distribution Dates;
(xxxii) to distributions of principal to the Holders of the
Class L Certificates, up to an amount equal to the Class
Principal Balance of the Class L Certificates outstanding
immediately prior to such Distribution Date;
(xxxiii) to distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class L Certificates pursuant to
Section 4.04(a) 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
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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 pursuant to
Section 4.04(a) 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 pursuant to
Section 4.04(a) 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 pursuant to
Section 4.04(a) 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 (other than distributions of
Net Prepayment Consideration) deemed made in respect of the REMIC
II Regular Interests on such Distribution Date pursuant to
Section 4.01(j), over (B) the aggregate distributions made in
respect of the Regular Interest Certificates on such Distribution
Date pursuant to clauses (i) through (xlii) above;
(xliv) to make distributions to the Holders of the Class
R-II Certificates, up to an amount equal to the excess, if any,
of (A) the aggregate distributions (other than distributions of
Net Prepayment Consideration) deemed made in respect of the REMIC
I Regular Interests
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on such Distribution Date pursuant to Section 4.01(k), over (B)
the aggregate distributions (other than distributions of Net
Prepayment Consideration) 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 have been distributed
from REMIC I to REMIC II on the various REMIC I Regular Interests in accordance
with Section 4.01(k) and then from REMIC II to REMIC III on the various REMIC II
Regular Interests in accordance with Section 4.01(j).
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SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, 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 or an Adverse Grantor Trust 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)).
(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
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(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 or 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
REMIC Event or an Adverse Grantor Trust 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
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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 or 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 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.
(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
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pursuant to or as contemplated by Article II or III of this Agreement); (ii) the
sale or disposition of any investments in the Custodial Account, the Collection
Account, the Interest Reserve Account or the REO Account for gain; or (iii) the
acquisition of any assets for 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 Custodial Account,
the Collection Account, the Interest Reserve Account or the REO Account); in any
event unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition but in no event at the
expense of the Trust Fund or the Trustee) to the effect that such sale,
disposition, or acquisition will not cause: (x) 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 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
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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 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, (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) to relax or eliminate any requirement imposed by
the Securities Act or the rules thereunder if the Securities Act or those rules
are amended or classified so as to allow for the relaxation or elimination of
that requirement; (vi) 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; (vii) 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); or (viii), to
otherwise modify or delete existing provisions of this Agreement; provided that
such amendment (other than any amendment for any of the specific purposes
described in clauses (vi) and (vii) above) shall not adversely affect in any
material respect the interests of any Certificateholder, as evidenced by either
an Opinion of Counsel to such effect or, in the case of a Class of Certificates
to which a rating has been assigned by one or more Rating Agencies, written
confirmation from each applicable Rating Agency to the effect that such
amendment shall not result in 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 66"% of the Voting Rights allocated to the
affected Classes for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans which are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in (i)
without the consent of the Holders of all Certificates of such Class, (iii)
modify the provisions of this Section 11.01 without the consent of the Holders
of all Certificates then outstanding, (iv) modify the provisions of Section 3.20
or the Servicing Standard without the consent of the Holders of all Regular
Interest Certificates then outstanding or (v) modify the specified percentage of
Voting Rights which are required to be held by Certificateholders to consent or
not to object to any particular action pursuant to any provision of this
Agreement without the consent of the Holders of all Certificates then
outstanding. 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
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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 in all material respects with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the
Trustee shall send a copy thereof to each Certificateholder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may but shall not be obligated to enter into any amendment pursuant to
this section that affects its rights, duties and immunities under this Agreement
or otherwise.
(g) The cost of any Opinion of Counsel to be delivered
pursuant to Section 11.01(a) or (c) shall be borne by the Person seeking the
related amendment, except that if the Master Servicer, the Special Servicer or
the Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Custodial Account, in the case of the Master
Servicer and the Special Servicer, pursuant to Section 3.05(a), or out of the
Collection Account, in the case of the Trustee, pursuant to Section 3.05(b).
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Custodial Account pursuant to Section 3.05(a)) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, that the Trustee shall have no obligation
or responsibility to determine whether any such recordation of this Agreement is
required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of
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counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder (except as expressly provided for
herein) shall have any right to vote or in any manner otherwise control the
operation and management of the Trust Fund or the obligations of the parties
hereto; nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee 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
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York 10285, Attention: LB-UBS Commercial Mortgage Trust 2000-C4, Series 2000-C4,
facsimile number: (212) 526-3746; (ii) in the case of the Master Servicer and
the Special Servicer, ORIX Real Estate Capital Markets, LLC, 1717 Main Street,
14th Floor, Dallas, Texas 75201, Attention: Edgar L. Smith, II, facsimile
number: (214) 237-2034, with a copy to ORIX Real Estate Capital Markets, LLC,
1717 Main Street, 12th Floor, Dallas, Texas 75201, Attention: Paul Smyth,
facsimile number: (214) 237-2040; (iii) 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-C4, facsimile number: (312) 904-2084; (iv) 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) UBS Warburg 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, and (C) Deutsche
Bank Securities Inc., 51 West 52nd Street, New York, New York 10019, Attention:
Tom Traynor, facsimile number: (212) 469-3215; (v) 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) Standard & Poor's Rating Services, a division of the McGraw-Hill Companies,
Inc., 55 Water Street, 10th Floor, New York, New York 10041, Attention: CMBS
Surveillance Manager, facsimile number: (212) 438-2662; and (vi) in the case of
the Fiscal Agent, to the Trustee on behalf of the Fiscal Agent; and (vii) in the
case of the initial Controlling Class Representative, Allied Capital
Corporation, 1919 Pennsylvania Avenue N.W., Washington D.C. 20006-3426,
Attention: Douglas Cooper, facsimile number (202) 659-2053; or, as to each such
Person, such other address as may hereafter be furnished by such Person to the
parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown in
the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent
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 and the Trustee agree that it is
their intent that the rights and obligations of the parties to such loan shall
be established pursuant to the terms of this Agreement. The Depositor and the
Trustee also intend and agree 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
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Custodial Account, the Collection Account, the Interest Reserve Account, the
Special Reserve Account, the Excess Liquidation Proceeds Account and, if
established, the 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 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 and, in the case of
Lehman Brothers, 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 90
days thereafter) shall be a third party beneficiary to obligations of a
successor Master Servicer under Section 3.22, provided that the sole remedy for
any claim by a Sub-Servicer as a third party beneficiary pursuant to this
Section 11.09 shall be against a successor Master Servicer solely in its
corporate capacity and no Sub-Servicer shall have any rights or claims against
the Trust Fund or any party hereto (other than a successor Master Servicer in
its corporate capacity as set forth in this Section 11.09) as a result of any
rights conferred on such Sub-Servicer as a third party beneficiary pursuant to
this Section 11.09. This Agreement may not be amended in any manner that would
adversely affect the rights of any such third party beneficiary without its
consent. No other Person, including any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
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SECTION 11.10. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11. Notices to Rating Agencies and Controlling
Class Representative.
(a) The Trustee shall promptly provide notice to each Rating
Agency and the Controlling Class Representative with respect to each of the
following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not
been cured;
(iii) the resignation or termination of the Fiscal Agent,
the Master Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by the Depositor
pursuant to Section 2.03(a);
(v) any change in the location of the Collection Account,
the Interest Reserve Account or the Excess Proceeds Liquidation
Account;
(vi) the final payment to any Class of Certificateholders;
and
(vii) any sale or disposition of any Mortgage Loan or REO
Property.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of the Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Mortgage Loan such information as the Rating
Agency shall reasonably request and which the Special Servicer can reasonably
provide in accordance with applicable law, 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), or 4.03(c).
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(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).
(f) The Trustee shall promptly deliver to each Rating Agency a
copy of each of the statements and reports described in Section 4.02(a) that is
prepared by it.
(g) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
SECTION 11.12. Global Opinions.
Notwithstanding anything herein to the contrary, where any
party hereto is required or permitted to rely upon an Opinion of Counsel with
respect to any particular matter, such Opinion of Counsel need not specifically
reference such particular matter, but rather such Opinion of Counsel may address
general matters of law in respect of nonspecific circumstances which clearly
encompass the facts of such particular matter (any such Opinion of Counsel, a
"Global Opinion"); provided that no Global Opinion may be relied upon if it is
more than 12 months old or if the subject party has reason to believe that such
Global Opinion no longer expresses a correct legal opinion.
SECTION 11.13. Complete Agreement.
This Agreement embodies the complete agreement among the
parties and may not be varied or terminated except by a written agreement
conforming to the provisions of Section 11.01. All prior negotiations or
representations of the parties are merged into this Agreement and shall have no
force or effect unless expressly stated herein.
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IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
STRUCTURED ASSET SECURITIES CORPORATION
Depositor
By: /s/ Mary Pat Archer
------------------------------------
Name: Mary Pat Archer
Title: Senior Vice President
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Master Servicer and Special Servicer
By: /s/ Edgar L. Smith II
------------------------------------
Name: Edgar L. Smith II
Title: Chief Operating Officer
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Barbara Marik
------------------------------------
Name: Barbara Marik
Title: Asst. Vice President
ABN AMRO BANK N.V.
Fiscal Agent
By: /s/ Russell M. Goldenberg
------------------------------------
Name: Russell M. Goldenberg
Title: Group Senior Vice President
By: /s/ Cynthia Reis
------------------------------------
Name: Cynthia Reis
Title: First Vice President
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _____________, 2000, before me, a notary
public in and for said State, personally appeared
______________________________________, known to me to be a
_________________________________ of STRUCTURED ASSET SECURITIES CORPORATION,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
229
<PAGE>
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the ______ day of _____________, 2000, before me, a notary
public in and for said State, personally appeared
______________________________________, known to me to be a
___________________________________ of ORIX REAL ESTATE CAPITAL MARKETS, LLC,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
230
<PAGE>
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the ______ day of _____________, 2000, before me, a notary
public in and for said State, personally appeared
______________________________________, known to me to be a
___________________________________ of LASALLE BANK NATIONAL ASSOCIATION, one of
the entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
231
<PAGE>
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the ______ day of _____________, 2000, before me, a notary
public in and for said State, personally appeared ______________________________
and ___________________________, known to me to be a
_____________________________ and _______________________, respectively, of ABN
AMRO BANK N.V., one of the entities that executed the within instrument, and
also known to me to be the persons who executed it on behalf of such entity, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
232
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SCHEDULE I
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
MORTGAGE
LOAN
NUMBER PROPERTY NAME ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1 Westfield Shoppingtown South Shore Mall 1701 Sunrise Highway
------------------------------------------------------------------------------------------------------------------------------------
2 Johnson City Mall SWC of N. Roan Street and Sunset Drive
------------------------------------------------------------------------------------------------------------------------------------
3 Westfield Shoppingtown Plaza Camino Real 2525 El Camino Real
------------------------------------------------------------------------------------------------------------------------------------
4 Exchange Park Center 6303-6333 Forest Park Road
------------------------------------------------------------------------------------------------------------------------------------
5 Tompkins Square Apartments 190 E. 7th & 609 E. 6th Street
------------------------------------------------------------------------------------------------------------------------------------
6 136 Madison 136 Madison Avenue
------------------------------------------------------------------------------------------------------------------------------------
7 Hillcrest Promenade Southeast corner of Beverwil Drive and Pico Boulevard
------------------------------------------------------------------------------------------------------------------------------------
8 404 Fifth Avenue 404 Fifth Avenue
------------------------------------------------------------------------------------------------------------------------------------
9 Georgesville Square I-270 & Georgesville Road
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10 Pike Shopping Center 12101 Rockville Pike
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11 Westfield Shops 415-475 East Main Street
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12 Plaza at the Pointe 1600 Quinn Drive
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13 Sully Plaza Lee Jackson Memorial Highway & Centreville Road
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14 City Centre 2000 PGA Boulevard
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15 Clocktower Place Shopping Center 11200-11298 West Florissant Avenue
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16 Research Commons 12249 Science Drive
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17 Ninigret Industrial Park Buildings Various
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18 111 Franklin Plaza 111 Franklin Road
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19 Remington Apartments 10610 North 30th Street
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20 City Villas 13601 Lampson Avenue
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21 Sagewood Apartments 5917 67th Street
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22 Bluff's Square Shoppes 4090-4300 U.S. Highway 1
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23 Kirkman Shoppes 4792 South Kirkman Road
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24 Voit Garden Grove 12755-12891 Western Avenue and 7411-7461 Garden Grove Boulevard
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25 Whispering Winds 2902 Whispering Winds Drive
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26 Willow Way Apartments 5890 Riverdale Road
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27 Pacific SW Trust Bank Building 234 E. Colorado Boulevard
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28 Western Select Properties 2525 Shadeland Avenue
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29 Northpointe Apartments 296 Muellers Circle
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30 Dulles North - Phase 2 22685 Holiday Park Drive
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31 Garners Crossing Apartments 7651 Garners Ferry Road
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32 Cap Senior - Atrium of Carmichael 5757 Cypress Avenue
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33 Greenwood Pointe Shopping Center 8014 U.S. 31
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34 Bolton Place 2108 Bolton Drive
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35 Mazda Distribution Facility 5700 Audubon Drive
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36 Windsor Village Apartments 2500 Sterling Avenue
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37 162-21 Jamaica Ave. 162-21 Jamaica Ave.
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38 75 South Broadway 75 South Broadway
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39 Reno Street Apartments 140 S. Reno Street
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40 University Tech Center 12501-12565 Research Parkway
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41 Hampton Inn - Victor 7637 New York State Route 96
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42 Westpark Plaza Apartments 920 West Fourth Avenue
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43 Ross Plaza 8404 West Hillsborough Avenue
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44 Grapevine I & II Prof. Bldg. 3500 & 3600 William D. Tate Avenue
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45 192 East 75th Street 192 East 75th Street
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46 Dulles North - Phase 5 22451 Shaw Road
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47 800/900 Parker Square 800 & 900 Parker Square
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48 Meadow Creek Apartments 136 Virgil Avenue
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49 Towneplace Suites Sterling 22744 Holiday Park Drive
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50 Huntersville Apartments 300 Hunters Road
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51 6701-6715 Electronics Drive 6701-6715 Electronic Drive
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52 Cedar Pines 1086 Montreal Road
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53 6 Joanna Court 6 Joanna Court
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54 Sylmar Plaza 13201-13251 Gladstaone Ave, 13507-13521.5 Hubbard Street
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55 City Line Retail 4500 City Line Avenue (U.S. Route 1)
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56 Kennewick Plaza Shopping Ctr. 2825 W. Kennewick Avenue
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57 Cooper Village Shopping Center 6704-6744 East Broadway Road
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58 Willimantic Plaza Route 32
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59 Arthur's Court Apartments 4655 Glenwood Avenue
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60 720 Monroe Street 720 Monroe Street
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61 Towne Center at Brookhill 6755 - 6795 West 88th Avenue
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62 Glenview Office Building 3201 Old Glenview Road
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63 Cal-Ray Medical Building 55 E. California Boulevard
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64 Wellesley Inn Edison 831 U.S. Route 1
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65 River Run Shopping Center 4956 Long Beach Road (Hwy. 133)
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66 Dulles North - Phase 1 45472 Holiday Drive
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67 1000 Circle 75 1000 Circle 75 Parkway
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68 Gun Club Shopping Center 4645 Gun Club Road
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69 Carriage Hills Apartments 2410-2470 Celanese Road
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70 Park Vista Apartments (I, II & III) 406, 502, 530 West Morrison Avenue
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71 Holiday Inn Express - Hershey 610 Walton Avenue
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72 Parkridge Village Apartments 5252 Orange Avenue
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73 Inwood Oaks Apartments 3902 West Little York Road
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74 Peachtree Village of Ft. Smith 1500, 1621 and 1701 South Fresno Street
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75 Wellesley Inn Hazlet 3215 State Route 35
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76 CVS - Springfield 795 Baltimore Pike
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77 Sandstone Apartments 4500 Silver Star Road
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78 Walgreens - Detroit (7 mile Rd) 13401 Seven Mile Road
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79 Mr. Store-It 901 Shipyard Boulevard
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80 Commerce Center 5440 - 5450 NW 33rd Avenue
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81 Laurel Commons Manufactured Housing Community 1001 Sage Avenue
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82 Northwend Shopping Center 9515 North Lamar Boulevard
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83 Cactus Gardens 10657 S. Avenue 9E
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84 Walgreens - Madison Heights 26800 John R. Road
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85 Holiday Inn & Conference Center - New Cumberland 148 Sheraton Drive
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86 Victorian Apartments 3435 Webb Chapel Extension
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87 Big Lots Plaza 5701 N. University Drive
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88 Comfort Inn Duluth 3700 Shackelford Road
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89 Flairwood Apartments 4361 Tchulahoma Road
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90 Fall Lake Apartments 1415 Greens Parkway
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91 Oakwood Village Apartments 1025 W. Boone Street
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92 South Pointe Shopping Center Highway 61 at Hennings Drive
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93 Willow Creek Apartments 4556 Winchester Road
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94 Newport Offices 2600 & 2650 Yale Boulevard S.E. and 2350 Alamo S.E.
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95 Cartwheel Lodge of Gonzales 1800 Cartwheel Drive
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96 Moore Self-Storage 3026 Veteran's Road West
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97 Pueblos of Scottsdale 8155 East Roosevelt Street
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98 Elizabeth Gardens Apartments 648 Jefferson Avenue
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99 Walgreens - Indianapolis 6275 West 38th Street
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100 Heisman Square Shoppng Center NE/C NE 12th Street at Alameda
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101 Metro Commerce Center/LeTourneau Center 5216 Letournea Circle and 5295 Shadowlawn Avenue
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102 Eastgate Plaza 4535-4601 Roosevelt Boulevard
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103 Holiday Inn Duluth 3670 Shackleford Road
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104 Hampton Inn - Danville 97 Valley School Road
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105 Burke Square Apartments 1141 Burke Road
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106 Stonegate Building 1950 Stonegate Drive
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107 Wellesley Inn Reading 310 Woodland Avenue
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108 Poplar Apartments 1449 & 1459 Poplar Street, 1848 & 1810-1816 Chessland Street
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109 Michigan City Plaza 4100 South Franklin Street
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110 Lanier Plaza SWC East Independence Blvd. (US 74) & Lanier Ave
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111 Galleria Plaza 2720 East Plaza Boulevard
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112 Brook Hollow Apartments 9231 North 99th Avenue
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113 Foothill 12800 Foothill Boulevard
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114 Cassa Bella Apartments 863 & 907 S. Irving Heights Drive
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115 Crosswinds 6101 North May Avenue
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116 Concorde Apartments 1332 SW 74th Street
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117 Highland Woods 900 N.E. 48th Street
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118 Fall River Apartments Various
------------------------------------------------------------------------------------------------------------------------------------
119 Copeland Plaza 1400 East Copeland Road
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120 CVS - Tucker 2586 Lawrenceville Highway
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121 Highpoint Village II 201 South Clark Road
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122 CVS - Logansport 717 N. Third Street
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123 Pinewood Estates MHP 200 Cedar Lane
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124 Stonewood Apartments 445 Stonewood Drive
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125 Dancea Property 605 NW 177th Street
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126 8706-8716 Astoria Boulevard 8706-8716 Astoria Boulevard
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127 Metro Warehouse 5616-5634 South 122nd East Avenue
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128 Villa Mirada 948 East Devonshire Avenue
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129 150 Fisher Drive 150 Fisher Drive
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130 Holiday Inn Express - New Columbia 80/15 Commerce Park
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131 Northwood Apartments 800 Northridge Court
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132 Forest Hills Apartments 2404 SE 5th Circle
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133 Central Park East Service Center 7100 North Loop East
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134 Comfort Inn - Greenville, NC 3900 South Memorial Drive
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135 Tierra Buena Plaza 15810 & 15820 North 35th Avenue
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136 Rosbough Drive 17535 Rosbough Drive
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137 Hilltop Square Shopping Center 6455 Hilltop Drive
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138 Whalley Medical Prof. Bldg. 399 and 419 Whalley Avenue
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139 3033 Express 3033 Express Drive North
------------------------------------------------------------------------------------------------------------------------------------
140 Patton Plaza 6440 West Hamilton Park Drive
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141 Sunny Acres and Capital Mobile Home Park 5110 and 5210 14th St. West
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142 Interlachen Shopping Center 1114 Highway 20
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143 48 Leona Drive 48 Leona Drive
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144 Olde Londontowne Apartments 5516 NW 23rd Street
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145 1425-1465 Washington Avenue Various
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146 Full Sail Live 3535 Forsyth Avenue
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147 Mobil Bronx 1106 Metcalf Avenue
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148 American National Self Storage 701 South Homestead Boulevard
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149 CVS - Arbor 13600 E. Seven Mile Road
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150 Stratford Plaza 1219 East Glendale Avenue
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151 MC Sports Plaza 730 28th Street SE
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152 Edwards Estates 14428 Cerise Avenue
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153 1501 Locust Street 1501 Locust Street
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154 Marion Crest Apartment Building (AKA: 1 Simone Place) 1 Simone Place
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155 Broadway Industrial Park 2745 Broadway Street
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156 Westgate Shopping Center 3210 Crill Avenue
------------------------------------------------------------------------------------------------------------------------------------
157 Lazy Daze Mobile Home Park 4202 West Van Buren Street
------------------------------------------------------------------------------------------------------------------------------------
158 Thunderbird Plaza 13806 North 51st Avenue
------------------------------------------------------------------------------------------------------------------------------------
159 Stratford Square Apartments 240 SE 15th Street
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160 Georgetown Apartments Glessner Street
------------------------------------------------------------------------------------------------------------------------------------
161 Elam Court Apartments 15-45 Elam Street
------------------------------------------------------------------------------------------------------------------------------------
162 Green Mountain and Hunt's Homestead Mobile Homes Various
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163 Avalon Meadows 2610 Old Iowa Park Drive
------------------------------------------------------------------------------------------------------------------------------------
164 1334 Walnut Street 1334 Walnut Street
------------------------------------------------------------------------------------------------------------------------------------
165 34 Eagle Avenue 34 Eagle Avenue
------------------------------------------------------------------------------------------------------------------------------------
166 Oak Creek Apartments 3500 Decker Drive
------------------------------------------------------------------------------------------------------------------------------------
167 Oak Park Apartments 1308 First Street
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE REMAINING
LOAN ZIP CUT-OFF MONTHLY P&I MORTGAGE TERM TO STATED
NUMBER CITY STATE CODE DATE BALANCE PAYMENT RATE MATURITY MATURITY DATE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 Bay Shore NY 11706 85,932,281.57 644,284.70 8.177 351 12/11/29
------------------------------------------------------------------------------------------------------------------------------------
2 Johnson City TN 37601 40,942,051.03 311,484.92 8.370 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
3 Carlsbad CA 92008 36,000,000.00 232,687.50 7.650 357 6/11/30
------------------------------------------------------------------------------------------------------------------------------------
4 Dallas TX 75245 26,956,282.23 211,445.65 8.700 356 5/11/30
------------------------------------------------------------------------------------------------------------------------------------
5 New York NY 10009 26,917,209.21 204,837.54 8.350 353 2/11/30
------------------------------------------------------------------------------------------------------------------------------------
6 New York NY 10016 22,439,000.36 173,324.55 8.520 354 3/11/30
------------------------------------------------------------------------------------------------------------------------------------
7 Los Angeles CA 90035 22,000,000.00 166,827.82 8.350 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
8 New York NY 10018 18,186,494.03 139,942.25 8.500 358 7/11/30
------------------------------------------------------------------------------------------------------------------------------------
9 Columbus OH 43228 16,155,870.29 124,793.68 8.520 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
10 Rockville MD 20853 15,560,265.69 117,087.94 8.240 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
11 Westfield MA 01085 15,256,574.95 110,221.09 7.740 105 6/1/09
------------------------------------------------------------------------------------------------------------------------------------
12 North Fayette Township PA 15071 14,312,656.52 111,041.10 8.550 111 12/11/09
------------------------------------------------------------------------------------------------------------------------------------
13 Chantilly VA 22021 13,744,362.05 105,914.52 8.480 112 1/1/10
------------------------------------------------------------------------------------------------------------------------------------
14 Palm Beach Gardens FL 33408 13,194,188.86 102,063.95 8.540 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
15 Unincorporated St. Louis County MO 63033 12,969,896.75 100,512.06 8.560 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
16 Orlando FL 32826 12,584,078.99 98,854.40 8.720 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
17 Salt Lake City UT 84104 11,990,799.86 91,590.12 8.420 358 7/11/30
------------------------------------------------------------------------------------------------------------------------------------
18 Roanoke VA 24011 11,980,569.86 93,975.85 8.700 356 5/11/30
------------------------------------------------------------------------------------------------------------------------------------
19 Tampa FL 33612 11,247,030.03 85,131.56 8.280 111 12/1/09
------------------------------------------------------------------------------------------------------------------------------------
20 Garden Grove CA 92840 10,690,678.02 79,185.17 8.090 118 7/1/10
------------------------------------------------------------------------------------------------------------------------------------
21 Lubbock TX 79424 10,675,562.55 81,517.59 8.380 112 1/1/10
------------------------------------------------------------------------------------------------------------------------------------
22 Jupiter FL 33410 10,312,039.47 81,153.09 8.740 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
23 Orlando FL 32811 9,737,761.27 76,633.66 8.740 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
24 Garden Grove CA 92840 9,692,949.42 74,928.61 8.550 58 7/1/05
------------------------------------------------------------------------------------------------------------------------------------
25 Pearland TX 77581 9,537,265.50 69,373.59 7.840 109 10/1/09
------------------------------------------------------------------------------------------------------------------------------------
26 College Park GA 30349 9,287,897.73 72,367.53 8.630 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
27 Pasadena CA 91101 9,088,539.36 71,459.79 8.730 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
28 Indianapolis IN 46219 8,484,449.73 64,396.26 8.340 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
29 Statesville NC 28265 8,443,261.34 63,380.25 8.170 108 9/1/09
------------------------------------------------------------------------------------------------------------------------------------
30 Sterling VA 20166 8,436,028.57 65,813.43 8.640 176 5/1/15
------------------------------------------------------------------------------------------------------------------------------------
31 Columbia SC 29209 8,271,448.10 64,940.78 8.690 113 2/1/10
------------------------------------------------------------------------------------------------------------------------------------
32 Carmichael CA 95968 7,761,450.34 61,631.25 8.200 108 9/1/09
------------------------------------------------------------------------------------------------------------------------------------
33 Indianapolis IN 46227 7,605,911.66 57,741.02 8.300 109 10/1/09
------------------------------------------------------------------------------------------------------------------------------------
34 Atlanta GA 30318 7,473,421.15 58,094.27 8.580 77 2/1/07
------------------------------------------------------------------------------------------------------------------------------------
35 Sandston VA 23150 7,468,894.92 55,984.54 8.210 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
36 Oklahoma City OK 73127 7,236,031.77 54,110.47 8.180 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
37 Jamaica NY 11432 7,191,051.62 56,745.31 8.770 357 6/11/30
------------------------------------------------------------------------------------------------------------------------------------
38 White Plains NY 10601 7,087,433.86 54,291.24 8.440 356 5/11/30
------------------------------------------------------------------------------------------------------------------------------------
39 Los Angeles CA 90004 7,074,156.84 54,492.25 8.480 77 2/1/07
------------------------------------------------------------------------------------------------------------------------------------
40 Orlando FL 32826 6,984,425.88 54,769.33 8.690 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
41 Victor NY 14564 6,923,789.47 58,324.15 9.000 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
42 Chico CA 95926 6,870,921.56 52,177.34 8.320 112 1/1/10
------------------------------------------------------------------------------------------------------------------------------------
43 Tampa FL 33615 6,791,464.26 53,447.07 8.740 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
44 Grapevine TX 76051 6,687,702.48 50,712.17 8.330 356 5/11/30
------------------------------------------------------------------------------------------------------------------------------------
45 New York NY 10021 6,687,337.53 50,287.77 8.240 356 5/11/30
------------------------------------------------------------------------------------------------------------------------------------
46 Sterling VA 20166 6,635,011.53 50,914.75 8.470 178 7/1/15
------------------------------------------------------------------------------------------------------------------------------------
47 Flower Mound TX 75028 6,565,879.66 50,230.24 8.430 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
48 Los Angeles CA 90004 6,526,158.77 50,271.02 8.480 77 2/1/07
------------------------------------------------------------------------------------------------------------------------------------
49 Sterling VA 20166 6,422,028.59 54,441.70 9.090 176 5/1/15
------------------------------------------------------------------------------------------------------------------------------------
50 Huntersville NC 28078 6,247,223.99 48,160.41 8.480 111 12/1/09
------------------------------------------------------------------------------------------------------------------------------------
51 Springfield VA 22151 6,091,270.69 46,170.78 8.330 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
52 Clarkston GA 30021 6,031,516.18 45,972.33 8.390 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
53 East Brunswick NJ 08816 5,985,290.05 45,583.16 8.370 355 4/11/30
------------------------------------------------------------------------------------------------------------------------------------
54 Sylmar CA 91342 5,959,702.29 48,470.84 9.080 113 2/1/10
------------------------------------------------------------------------------------------------------------------------------------
55 Philadelphia PA 19131 5,891,994.93 45,365.90 8.500 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
56 Kennewick WA 99336 5,792,341.72 44,946.84 8.585 357 6/11/30
------------------------------------------------------------------------------------------------------------------------------------
57 Mesa AZ 85206 5,485,537.04 42,798.00 8.630 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
58 Willimantic CT 06226 5,328,910.93 40,635.99 8.360 112 1/1/10
------------------------------------------------------------------------------------------------------------------------------------
59 Decatur GA 30035 5,309,464.01 37,410.00 7.560 117 6/11/10
------------------------------------------------------------------------------------------------------------------------------------
60 Hoboken NJ 07030 5,288,314.50 44,404.84 8.980 297 6/11/25
------------------------------------------------------------------------------------------------------------------------------------
61 Westminster CO 80233 5,069,775.58 38,135.48 8.200 109 10/1/09
------------------------------------------------------------------------------------------------------------------------------------
62 Wilmette IL 60091 5,013,091.35 38,150.53 8.380 358 7/11/30
------------------------------------------------------------------------------------------------------------------------------------
63 Pasadena CA 91105 4,998,113.83 38,851.78 8.560 109 10/1/09
------------------------------------------------------------------------------------------------------------------------------------
64 Edison NJ 08817 4,988,413.74 41,141.16 8.760 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
65 Southport NC 28461 4,937,971.97 37,710.96 8.400 115 4/6/10
------------------------------------------------------------------------------------------------------------------------------------
66 Sterling VA 22170 4,891,898.22 38,164.00 8.640 176 5/1/15
------------------------------------------------------------------------------------------------------------------------------------
67 Atlanta GA 30339 4,861,947.84 37,930.34 8.640 176 5/1/15
------------------------------------------------------------------------------------------------------------------------------------
68 West Palm Beach FL 33415 4,796,125.16 36,195.86 8.290 358 7/11/30
------------------------------------------------------------------------------------------------------------------------------------
69 Rock Hill SC 29732 4,786,632.12 36,737.89 8.450 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
70 Santa Maria CA 93454 4,737,468.76 36,928.12 8.620 78 3/1/07
------------------------------------------------------------------------------------------------------------------------------------
71 Hummelstown PA 17036 4,700,000.00 40,197.14 8.940 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
72 San Diego CA 92115 4,633,697.73 36,150.68 8.620 77 2/1/07
------------------------------------------------------------------------------------------------------------------------------------
73 Houston TX 77091 4,481,727.70 33,207.82 8.060 113 2/1/10
------------------------------------------------------------------------------------------------------------------------------------
74 Ft. Smith AR 72901 4,479,615.99 37,486.89 8.910 294 3/11/25
------------------------------------------------------------------------------------------------------------------------------------
75 Hazlet NJ 07730 4,389,804.09 36,204.22 8.760 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
76 Springfield Township PA 19064 4,297,077.13 36,557.00 8.300 235 4/1/20
------------------------------------------------------------------------------------------------------------------------------------
77 Orlando FL 32808 3,822,266.03 29,655.26 8.590 118 7/1/10
------------------------------------------------------------------------------------------------------------------------------------
78 Detroit MI 48231 3,795,637.20 32,621.70 8.300 237 6/1/20
------------------------------------------------------------------------------------------------------------------------------------
79 Wilmington NC 28412 3,782,903.27 31,733.48 8.940 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
80 Fort Lauderdale FL 33309 3,693,882.31 28,817.72 8.640 176 5/1/15
------------------------------------------------------------------------------------------------------------------------------------
81 Reading PA 19605 3,600,000.00 26,893.90 8.190 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
82 Austin TX 78753 3,581,786.83 28,321.22 8.750 109 10/6/09
------------------------------------------------------------------------------------------------------------------------------------
83 Yuma AZ 85365 3,479,747.18 25,961.47 8.160 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
84 Madison Heights MI 48071 3,412,391.89 29,789.96 8.350 230 11/1/19
------------------------------------------------------------------------------------------------------------------------------------
85 New Cumberland PA 17070 3,400,000.00 29,078.78 8.940 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
86 Dallas TX 75220 3,292,065.03 26,315.45 8.900 354 3/11/30
------------------------------------------------------------------------------------------------------------------------------------
87 Tamarac FL 33319 3,285,104.55 26,291.78 8.890 110 11/1/09
------------------------------------------------------------------------------------------------------------------------------------
88 Duluth GA 30136 3,272,314.17 26,877.23 8.710 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
89 Memphis TN 38118 3,266,248.06 25,367.83 8.580 354 3/6/30
------------------------------------------------------------------------------------------------------------------------------------
90 Houston TX 77067 3,264,397.29 22,826.03 7.390 68 5/1/06
------------------------------------------------------------------------------------------------------------------------------------
91 Santa Maria CA 93454 3,241,425.99 25,266.61 8.620 78 3/1/07
------------------------------------------------------------------------------------------------------------------------------------
92 Sikeston MO 63801 3,234,635.70 24,416.16 8.250 111 12/6/09
------------------------------------------------------------------------------------------------------------------------------------
93 Memphis TN 38118 3,179,794.14 24,322.31 8.375 108 9/6/09
------------------------------------------------------------------------------------------------------------------------------------
94 Albequerque NM 87106 3,177,075.31 24,084.76 8.320 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
95 Gonzales TX 78629 3,134,007.25 28,624.07 10.000 112 1/11/10
------------------------------------------------------------------------------------------------------------------------------------
96 Staten Island NY 10309 2,993,340.12 25,073.25 8.950 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
97 Scottsdale AZ 85257 2,978,383.98 21,762.49 7.880 48 9/1/04
------------------------------------------------------------------------------------------------------------------------------------
98 Elizabeth NJ 07201 2,892,591.98 21,745.97 8.230 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
99 Indianapolis IN 46224 2,861,515.68 24,598.90 8.280 236 5/1/20
------------------------------------------------------------------------------------------------------------------------------------
100 Norman OK 73071 2,845,123.05 21,994.88 8.540 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
101 Tampa FL 33610 2,837,851.33 22,814.69 8.430 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
102 Middletown OH 45044 2,821,690.42 22,561.80 8.640 141 6/1/12
------------------------------------------------------------------------------------------------------------------------------------
103 Duluth GA 30136 2,713,626.40 22,288.43 8.710 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
104 Danville PA 17821 2,500,000.00 21,381.46 8.940 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
105 Pasadena TX 77506 2,483,706.31 18,083.37 7.850 109 10/1/09
------------------------------------------------------------------------------------------------------------------------------------
106 Vestavia Hills AL 35242 2,468,603.94 18,489.55 8.190 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
107 Reading PA 19610 2,444,322.72 20,159.17 8.760 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
108 Pittsburgh PA 15205 2,423,155.78 18,543.13 8.440 118 7/11/10
------------------------------------------------------------------------------------------------------------------------------------
109 Michigan City IN 46360 2,394,170.17 19,086.88 8.870 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
110 Charlotte NC 28205 2,388,461.24 17,929.27 8.190 111 12/1/09
------------------------------------------------------------------------------------------------------------------------------------
111 National City CA 91950 2,387,269.37 18,148.64 8.320 110 11/1/09
------------------------------------------------------------------------------------------------------------------------------------
112 Sun City AZ 85345 2,373,309.16 18,165.37 8.420 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
113 Sylmar CA 91342 2,346,060.39 18,236.28 8.600 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
114 Irving TX 75060 2,305,776.08 18,238.34 8.190 111 12/1/09
------------------------------------------------------------------------------------------------------------------------------------
115 Oklahoma City OK 73112 2,305,549.44 17,240.71 8.180 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
116 Oklahoma City OK 73127 2,295,568.69 17,166.08 8.180 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
117 Pompano FL 33064 2,278,028.40 16,905.00 8.110 118 7/1/10
------------------------------------------------------------------------------------------------------------------------------------
118 Various MA Various 2,155,816.65 18,162.45 9.500 114 3/11/10
------------------------------------------------------------------------------------------------------------------------------------
119 Arlington TX 76011 2,111,637.21 16,174.04 8.390 108 9/1/09
------------------------------------------------------------------------------------------------------------------------------------
120 Tucker GA 30033 2,045,510.63 16,932.15 8.430 233 2/1/20
------------------------------------------------------------------------------------------------------------------------------------
121 Cedar Hill TX 75104 1,996,530.86 15,378.27 8.500 116 5/11/10
------------------------------------------------------------------------------------------------------------------------------------
122 Logansport IN 46947 1,991,914.56 17,242.28 8.740 221 2/1/19
------------------------------------------------------------------------------------------------------------------------------------
123 Barnegat NJ 08005 1,982,430.66 17,356.46 8.500 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
124 Mooresville NC 28115 1,916,479.08 14,774.31 8.480 111 12/1/09
------------------------------------------------------------------------------------------------------------------------------------
125 Miami FL 33179 1,898,618.95 14,676.74 8.550 118 7/1/10
------------------------------------------------------------------------------------------------------------------------------------
126 Jackson Heights NY 11369 1,896,663.36 14,762.45 8.625 118 7/11/10
------------------------------------------------------------------------------------------------------------------------------------
127 Tulsa OK 74146 1,896,209.79 14,034.35 8.070 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
128 Phoenix AZ 85014 1,895,286.48 14,381.06 8.330 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
129 Avon CT 06103 1,892,657.02 14,784.76 8.630 52 1/1/05
------------------------------------------------------------------------------------------------------------------------------------
130 New Columbia PA 17856 1,800,000.00 15,394.65 8.940 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
131 Mocksville NC 27028 1,792,032.36 13,814.94 8.480 111 12/1/09
------------------------------------------------------------------------------------------------------------------------------------
132 Ocala FL 34471 1,786,370.01 13,434.32 8.180 46 7/1/04
------------------------------------------------------------------------------------------------------------------------------------
133 Houston TX 77028 1,746,724.55 13,171.78 8.270 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
134 Greenville NC 28590 1,743,074.92 15,277.53 9.490 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
135 Phoenix AZ 85053 1,695,869.15 12,951.24 8.400 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
136 Middleburg Heights OH 44130 1,683,790.53 13,051.85 8.580 358 7/6/30
------------------------------------------------------------------------------------------------------------------------------------
137 North Richland Hills TX 76180 1,595,256.29 13,128.04 9.220 353 2/11/30
------------------------------------------------------------------------------------------------------------------------------------
138 New Haven CT 06510 1,572,712.19 12,672.81 9.000 116 5/11/10
------------------------------------------------------------------------------------------------------------------------------------
139 Islandia NY 11722 1,571,161.29 12,514.47 8.860 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
140 Columbus GA 31909 1,546,459.75 11,880.30 8.430 109 10/1/09
------------------------------------------------------------------------------------------------------------------------------------
141 Bradenton FL 34207 1,540,369.98 11,882.97 8.510 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
142 Interlachen FL 32148 1,535,963.47 11,994.40 8.640 114 3/11/10
------------------------------------------------------------------------------------------------------------------------------------
143 Middleborough MA 02346 1,523,858.99 11,704.32 8.480 118 7/1/10
------------------------------------------------------------------------------------------------------------------------------------
144 Oklahoma City OK 73127 1,517,071.49 11,344.54 8.180 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
145 Albany NY 12206 1,497,237.25 12,361.88 9.270 175 4/11/15
------------------------------------------------------------------------------------------------------------------------------------
146 Winter Park FL 32792 1,386,415.04 11,216.63 8.440 85 10/1/07
------------------------------------------------------------------------------------------------------------------------------------
147 Bronx NY 10472 1,351,232.06 10,468.59 8.110 224 5/1/19
------------------------------------------------------------------------------------------------------------------------------------
148 Homestead FL 33030 1,295,817.16 10,450.44 8.480 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
149 Detriot MI 48205 1,279,744.70 11,249.60 8.320 225 6/1/19
------------------------------------------------------------------------------------------------------------------------------------
150 Phoenix AZ 85014 1,219,488.56 10,229.87 8.940 114 3/1/10
------------------------------------------------------------------------------------------------------------------------------------
151 Grand Rapids MI 49502 1,195,022.00 9,397.58 8.700 111 12/1/09
------------------------------------------------------------------------------------------------------------------------------------
152 Hawthorne CA 90250 1,169,078.72 8,638.12 8.020 75 12/1/06
------------------------------------------------------------------------------------------------------------------------------------
153 Philadelphia PA 19106 1,118,083.46 8,643.60 8.540 116 5/11/10
------------------------------------------------------------------------------------------------------------------------------------
154 Bergenfield NJ 07621 1,047,356.60 7,910.46 8.280 115 4/1/10
------------------------------------------------------------------------------------------------------------------------------------
155 Cheektowaga NY 14227 1,039,749.28 8,391.30 8.410 109 10/1/09
------------------------------------------------------------------------------------------------------------------------------------
156 Palatka FL 32177 1,037,274.00 8,100.12 8.640 114 3/11/10
------------------------------------------------------------------------------------------------------------------------------------
157 Phoenix AZ 85009 997,599.01 8,119.77 8.600 117 6/1/10
------------------------------------------------------------------------------------------------------------------------------------
158 Glendale AZ 85306 941,868.60 7,502.93 8.875 117 6/11/10
------------------------------------------------------------------------------------------------------------------------------------
159 Edmond OK 73013 918,227.49 6,866.43 8.180 116 5/1/10
------------------------------------------------------------------------------------------------------------------------------------
160 Americus GA 31709 896,122.70 7,035.64 8.690 113 2/1/10
------------------------------------------------------------------------------------------------------------------------------------
161 New Britain CT 06053 818,487.40 6,969.91 9.625 114 3/11/10
------------------------------------------------------------------------------------------------------------------------------------
162 Various Var Various 795,500.70 7,006.01 8.625 116 5/11/10
------------------------------------------------------------------------------------------------------------------------------------
163 Wichita Falls TX 76305 769,486.37 6,057.59 8.750 118 7/11/10
------------------------------------------------------------------------------------------------------------------------------------
164 Philadelphia PA 19107 698,802.16 5,402.25 8.540 116 5/11/10
------------------------------------------------------------------------------------------------------------------------------------
165 Paterson NJ 07503 511,221.23 4,073.70 8.875 116 5/11/10
------------------------------------------------------------------------------------------------------------------------------------
166 Baytown TX 77520 499,374.45 3,933.50 8.750 117 6/11/10
------------------------------------------------------------------------------------------------------------------------------------
167 Galena Park TX 77547 497,470.42 3,933.50 8.750 109 10/11/09
------------------------------------------------------------------------------------------------------------------------------------
Aggregate Cut-off Date Mortgage Pool Balance: 999,060,409.20 0
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE REMAINING INTEREST PRIMARY FEE SIMPLE ARD ANTICIPATED
LOAN AMORTIZATION ACCRUAL ADMINISTRATIVE SERVICING OR GROUND MORTGAGE MORTGAGE REPAYMENT
NUMBER TERM BASIS COST RATE FEE RATE LEASE FLAG LOAN SELLER DEFEASANCE LOAN DATE
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 352 Act/360 0.0833 0.0500 Fee Simple UBSPF Yes 12/11/09
-----------------------------------------------------------------------------------------------------------------------------------
2 357 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
3 NAP Act/360 0.0833 0.0500 Fee Simple LBHI Yes 6/11/10
-----------------------------------------------------------------------------------------------------------------------------------
4 356 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 5/11/10
-----------------------------------------------------------------------------------------------------------------------------------
5 354 Act/360 0.0833 0.0500 Fee Simple UBSPF Yes 2/11/10
-----------------------------------------------------------------------------------------------------------------------------------
6 354 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 3/11/10
-----------------------------------------------------------------------------------------------------------------------------------
7 360 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
8 358 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 7/11/10
-----------------------------------------------------------------------------------------------------------------------------------
9 354 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
10 355 Act/360 0.0833 0.0500 Leasehold LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
11 345 Act/360 0.0833 0.0500 Both LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
12 351 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
13 352 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
14 355 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
15 355 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
16 357 Act/360 0.0833 0.0500 Fee Simple LBHI
-----------------------------------------------------------------------------------------------------------------------------------
17 358 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 7/11/10
-----------------------------------------------------------------------------------------------------------------------------------
18 356 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 5/11/10
-----------------------------------------------------------------------------------------------------------------------------------
19 351 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
20 358 Act/360 0.0833 0.0500 Fee Simple LBHI
-----------------------------------------------------------------------------------------------------------------------------------
21 352 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
22 357 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
23 357 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
24 358 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
25 349 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
26 357 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
27 357 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
28 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
29 348 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
30 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
31 353 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
32 288 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
33 349 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
34 353 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
35 357 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
36 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
37 357 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 6/11/10
-----------------------------------------------------------------------------------------------------------------------------------
38 356 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 5/11/10
-----------------------------------------------------------------------------------------------------------------------------------
39 353 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
40 355 Act/360 0.0833 0.0500 Fee Simple LBHI
-----------------------------------------------------------------------------------------------------------------------------------
41 295 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
42 352 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
43 357 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
44 356 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 5/11/10
-----------------------------------------------------------------------------------------------------------------------------------
45 356 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 5/11/10
-----------------------------------------------------------------------------------------------------------------------------------
46 358 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
47 357 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
48 353 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
49 296 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
50 351 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
51 357 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
52 357 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
53 355 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 4/11/10
-----------------------------------------------------------------------------------------------------------------------------------
54 353 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
55 357 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
56 357 Act/360 0.0833 0.0500 Fee Simple UBSPF Yes 6/11/10
-----------------------------------------------------------------------------------------------------------------------------------
57 354 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
58 352 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
59 357 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
60 297 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 6/11/10
-----------------------------------------------------------------------------------------------------------------------------------
61 349 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
62 358 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 7/11/10
-----------------------------------------------------------------------------------------------------------------------------------
63 349 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
64 297 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
65 355 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
66 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
67 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
68 358 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 7/11/10
-----------------------------------------------------------------------------------------------------------------------------------
69 354 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
70 354 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
71 276 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
72 353 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
73 353 Act/360 0.0833 0.0500 Fee Simple LBHI
-----------------------------------------------------------------------------------------------------------------------------------
74 294 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 3/11/10
-----------------------------------------------------------------------------------------------------------------------------------
75 297 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
76 235 30/360 0.1333 0.1000 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
77 358 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
78 237 30/360 0.1333 0.1000 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
79 294 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
80 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
81 360 Act/360 0.1083 0.0750 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
82 349 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
83 357 Act/360 0.1083 0.0750 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
84 230 30/360 0.1333 0.1000 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
85 276 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
86 354 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 3/11/10
-----------------------------------------------------------------------------------------------------------------------------------
87 350 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
88 297 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
89 354 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 3/6/10
-----------------------------------------------------------------------------------------------------------------------------------
90 344 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
91 354 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
92 351 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
93 348 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
94 355 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
95 292 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
96 297 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
97 348 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
98 355 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
99 236 30/360 0.1333 0.1000 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
100 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
101 295 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
102 321 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
103 297 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
104 276 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
105 349 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
106 355 Act/360 0.1133 0.0800 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
107 297 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
108 358 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
109 354 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
110 351 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
111 350 Act/360 0.1033 0.0700 Both LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
112 354 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
113 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
114 291 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
115 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
116 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
117 358 Act/360 0.1083 0.0750 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
118 354 Act/360 0.0833 0.0500 Fee Simple UBSPF
-----------------------------------------------------------------------------------------------------------------------------------
119 348 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
120 233 30/360 0.1333 0.1000 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
121 356 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
122 221 30/360 0.1333 0.1000 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
123 234 Act/360 0.1083 0.0750 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
124 351 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
125 357 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
126 358 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
127 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
128 355 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
129 352 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
130 276 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
131 351 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
132 346 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
133 356 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
134 294 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
135 355 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
136 358 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 7/6/10
-----------------------------------------------------------------------------------------------------------------------------------
137 353 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance Yes 2/11/10
-----------------------------------------------------------------------------------------------------------------------------------
138 356 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
139 354 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
140 349 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
141 355 Act/360 0.1083 0.0750 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
142 354 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
143 358 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
144 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
145 355 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
146 289 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
147 224 30/360 0.1333 0.1000 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
148 296 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
149 225 30/360 0.1333 0.1000 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
150 294 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
151 351 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
152 351 Act/360 0.1033 0.0700 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
153 356 Act/360 0.0833 0.0500 Fee Simple UBSPF
-----------------------------------------------------------------------------------------------------------------------------------
154 355 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
155 289 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
156 354 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
157 297 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
158 357 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
159 356 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
160 353 Act/360 0.0833 0.0500 Fee Simple LBHI Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
161 354 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
162 236 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
163 358 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
164 356 Act/360 0.0833 0.0500 Fee Simple UBSPF
-----------------------------------------------------------------------------------------------------------------------------------
165 356 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
166 357 Act/360 0.0833 0.0500 Fee Simple UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
167 349 Act/360 0.0833 0.0500 Fee Simple UBSPF
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE ADDITIONAL CREDIT LEASE LOAN
LOAN INTEREST (TENANT, GUARANTOR,
NUMBER RATE (%) RATED PARTY)
---------------------------------------------------------------------------------------------------
<S> <C> <C>
1 2.00
---------------------------------------------------------------------------------------------------
2
---------------------------------------------------------------------------------------------------
3 5.00
---------------------------------------------------------------------------------------------------
4 2.00
---------------------------------------------------------------------------------------------------
5 2.00
---------------------------------------------------------------------------------------------------
6 2.00
---------------------------------------------------------------------------------------------------
7
---------------------------------------------------------------------------------------------------
8 2.00
---------------------------------------------------------------------------------------------------
9
---------------------------------------------------------------------------------------------------
10
---------------------------------------------------------------------------------------------------
11
---------------------------------------------------------------------------------------------------
12
---------------------------------------------------------------------------------------------------
13
---------------------------------------------------------------------------------------------------
14
---------------------------------------------------------------------------------------------------
15
---------------------------------------------------------------------------------------------------
16
---------------------------------------------------------------------------------------------------
17 2.00
---------------------------------------------------------------------------------------------------
18 2.00
---------------------------------------------------------------------------------------------------
19
---------------------------------------------------------------------------------------------------
20
---------------------------------------------------------------------------------------------------
21
---------------------------------------------------------------------------------------------------
22
---------------------------------------------------------------------------------------------------
23
---------------------------------------------------------------------------------------------------
24
---------------------------------------------------------------------------------------------------
25
---------------------------------------------------------------------------------------------------
26
---------------------------------------------------------------------------------------------------
27
---------------------------------------------------------------------------------------------------
28
---------------------------------------------------------------------------------------------------
29
---------------------------------------------------------------------------------------------------
30
---------------------------------------------------------------------------------------------------
31
---------------------------------------------------------------------------------------------------
32
---------------------------------------------------------------------------------------------------
33
---------------------------------------------------------------------------------------------------
34
---------------------------------------------------------------------------------------------------
35
---------------------------------------------------------------------------------------------------
36
---------------------------------------------------------------------------------------------------
37 2.00
---------------------------------------------------------------------------------------------------
38 2.00
---------------------------------------------------------------------------------------------------
39
---------------------------------------------------------------------------------------------------
40
---------------------------------------------------------------------------------------------------
41
---------------------------------------------------------------------------------------------------
42
---------------------------------------------------------------------------------------------------
43
---------------------------------------------------------------------------------------------------
44 2.00
---------------------------------------------------------------------------------------------------
45 2.00
---------------------------------------------------------------------------------------------------
46
---------------------------------------------------------------------------------------------------
47
---------------------------------------------------------------------------------------------------
48
---------------------------------------------------------------------------------------------------
49
---------------------------------------------------------------------------------------------------
50
---------------------------------------------------------------------------------------------------
51
---------------------------------------------------------------------------------------------------
52
---------------------------------------------------------------------------------------------------
53 2.00
---------------------------------------------------------------------------------------------------
54
---------------------------------------------------------------------------------------------------
55
---------------------------------------------------------------------------------------------------
56 2.00
---------------------------------------------------------------------------------------------------
57
---------------------------------------------------------------------------------------------------
58
---------------------------------------------------------------------------------------------------
59
---------------------------------------------------------------------------------------------------
60 2.00
---------------------------------------------------------------------------------------------------
61
---------------------------------------------------------------------------------------------------
62 2.00
---------------------------------------------------------------------------------------------------
63
---------------------------------------------------------------------------------------------------
64
---------------------------------------------------------------------------------------------------
65
---------------------------------------------------------------------------------------------------
66
---------------------------------------------------------------------------------------------------
67
---------------------------------------------------------------------------------------------------
68 2.00
---------------------------------------------------------------------------------------------------
69
---------------------------------------------------------------------------------------------------
70
---------------------------------------------------------------------------------------------------
71
---------------------------------------------------------------------------------------------------
72
---------------------------------------------------------------------------------------------------
73
---------------------------------------------------------------------------------------------------
74 2.00
---------------------------------------------------------------------------------------------------
75
---------------------------------------------------------------------------------------------------
76 Springfield Realty Partners, L.P., CVS Corporation, CVS Corporation
---------------------------------------------------------------------------------------------------
77
---------------------------------------------------------------------------------------------------
78 Walgreen Co., None, Walgreen Co.
---------------------------------------------------------------------------------------------------
79
---------------------------------------------------------------------------------------------------
80
---------------------------------------------------------------------------------------------------
81
---------------------------------------------------------------------------------------------------
82
---------------------------------------------------------------------------------------------------
83
---------------------------------------------------------------------------------------------------
84 Walgreen Co., None, Walgreen Co.
---------------------------------------------------------------------------------------------------
85
---------------------------------------------------------------------------------------------------
86 2.00
---------------------------------------------------------------------------------------------------
87
---------------------------------------------------------------------------------------------------
88
---------------------------------------------------------------------------------------------------
89 2.00
---------------------------------------------------------------------------------------------------
90
---------------------------------------------------------------------------------------------------
91
---------------------------------------------------------------------------------------------------
92
---------------------------------------------------------------------------------------------------
93
---------------------------------------------------------------------------------------------------
94
---------------------------------------------------------------------------------------------------
95
---------------------------------------------------------------------------------------------------
96
---------------------------------------------------------------------------------------------------
97
---------------------------------------------------------------------------------------------------
98
---------------------------------------------------------------------------------------------------
99 Walgreen Co., None, Walgreen Co.
---------------------------------------------------------------------------------------------------
100
---------------------------------------------------------------------------------------------------
101
---------------------------------------------------------------------------------------------------
102
---------------------------------------------------------------------------------------------------
103
---------------------------------------------------------------------------------------------------
104
---------------------------------------------------------------------------------------------------
105
---------------------------------------------------------------------------------------------------
106
---------------------------------------------------------------------------------------------------
107
---------------------------------------------------------------------------------------------------
108
---------------------------------------------------------------------------------------------------
109
---------------------------------------------------------------------------------------------------
110
---------------------------------------------------------------------------------------------------
111
---------------------------------------------------------------------------------------------------
112
---------------------------------------------------------------------------------------------------
113
---------------------------------------------------------------------------------------------------
114
---------------------------------------------------------------------------------------------------
115
---------------------------------------------------------------------------------------------------
116
---------------------------------------------------------------------------------------------------
117
---------------------------------------------------------------------------------------------------
118
---------------------------------------------------------------------------------------------------
119
---------------------------------------------------------------------------------------------------
120 Tucker CVS, Inc., CVS Corporation, CVS Corporation
---------------------------------------------------------------------------------------------------
121
---------------------------------------------------------------------------------------------------
122 Hook-SupeRx, Inc., CVS Corporation, CVS Corporation
---------------------------------------------------------------------------------------------------
123
---------------------------------------------------------------------------------------------------
124
---------------------------------------------------------------------------------------------------
125
---------------------------------------------------------------------------------------------------
126
---------------------------------------------------------------------------------------------------
127
---------------------------------------------------------------------------------------------------
128
---------------------------------------------------------------------------------------------------
129
---------------------------------------------------------------------------------------------------
130
---------------------------------------------------------------------------------------------------
131
---------------------------------------------------------------------------------------------------
132
---------------------------------------------------------------------------------------------------
133
---------------------------------------------------------------------------------------------------
134
---------------------------------------------------------------------------------------------------
135
---------------------------------------------------------------------------------------------------
136 2.00
---------------------------------------------------------------------------------------------------
137 2.00
---------------------------------------------------------------------------------------------------
138
---------------------------------------------------------------------------------------------------
139
---------------------------------------------------------------------------------------------------
140
---------------------------------------------------------------------------------------------------
141
---------------------------------------------------------------------------------------------------
142
---------------------------------------------------------------------------------------------------
143
---------------------------------------------------------------------------------------------------
144
---------------------------------------------------------------------------------------------------
145
---------------------------------------------------------------------------------------------------
146
---------------------------------------------------------------------------------------------------
147 Mobil Oil Corporation, None, Mobil Corporation
---------------------------------------------------------------------------------------------------
148
---------------------------------------------------------------------------------------------------
149 Arbor Drugs, Inc., CVS Corporation, CVS Corporation
---------------------------------------------------------------------------------------------------
150
---------------------------------------------------------------------------------------------------
151
---------------------------------------------------------------------------------------------------
152
---------------------------------------------------------------------------------------------------
153
---------------------------------------------------------------------------------------------------
154
---------------------------------------------------------------------------------------------------
155
---------------------------------------------------------------------------------------------------
156
---------------------------------------------------------------------------------------------------
157
---------------------------------------------------------------------------------------------------
158
---------------------------------------------------------------------------------------------------
159
---------------------------------------------------------------------------------------------------
160
---------------------------------------------------------------------------------------------------
161
---------------------------------------------------------------------------------------------------
162
---------------------------------------------------------------------------------------------------
163
---------------------------------------------------------------------------------------------------
164
---------------------------------------------------------------------------------------------------
165
---------------------------------------------------------------------------------------------------
166
---------------------------------------------------------------------------------------------------
167
---------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE LEASE RESIDUAL
LOAN ENHANCEMENT VALUE MORTGAGE LOAN
NUMBER POLICY INSURANCE CROSS COLLATERALIZED SELLER LOAN ID
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 No LG-6133
----------------------------------------------------------------------------------------------------------------------------------
2 No 991214001
----------------------------------------------------------------------------------------------------------------------------------
3 No LG000128001
----------------------------------------------------------------------------------------------------------------------------------
4 No 6439
----------------------------------------------------------------------------------------------------------------------------------
5 No 6165
----------------------------------------------------------------------------------------------------------------------------------
6 No 5187
----------------------------------------------------------------------------------------------------------------------------------
7 No 000223004
----------------------------------------------------------------------------------------------------------------------------------
8 No 6412
----------------------------------------------------------------------------------------------------------------------------------
9 No 990924003
----------------------------------------------------------------------------------------------------------------------------------
10 No 000105010
----------------------------------------------------------------------------------------------------------------------------------
11 No 990303002
----------------------------------------------------------------------------------------------------------------------------------
12 No 5616
----------------------------------------------------------------------------------------------------------------------------------
13 No 990920003
----------------------------------------------------------------------------------------------------------------------------------
14 No 990914015
----------------------------------------------------------------------------------------------------------------------------------
15 No 991216013
----------------------------------------------------------------------------------------------------------------------------------
16 No 000201006
----------------------------------------------------------------------------------------------------------------------------------
17 No 6254
----------------------------------------------------------------------------------------------------------------------------------
18 No 6059
----------------------------------------------------------------------------------------------------------------------------------
19 No 990511006
----------------------------------------------------------------------------------------------------------------------------------
20 No 000503003
----------------------------------------------------------------------------------------------------------------------------------
21 No 991005002
----------------------------------------------------------------------------------------------------------------------------------
22 No 000120001
----------------------------------------------------------------------------------------------------------------------------------
23 No 000120002
----------------------------------------------------------------------------------------------------------------------------------
24 No 000427004
----------------------------------------------------------------------------------------------------------------------------------
25 No 990720013
----------------------------------------------------------------------------------------------------------------------------------
26 No 000309005
----------------------------------------------------------------------------------------------------------------------------------
27 No 991216015
----------------------------------------------------------------------------------------------------------------------------------
28 No 991210001
----------------------------------------------------------------------------------------------------------------------------------
29 No 990426007
----------------------------------------------------------------------------------------------------------------------------------
30 No 991104005
----------------------------------------------------------------------------------------------------------------------------------
31 No 990315010
----------------------------------------------------------------------------------------------------------------------------------
32 No 990719008
----------------------------------------------------------------------------------------------------------------------------------
33 No 990427021
----------------------------------------------------------------------------------------------------------------------------------
34 No 991103005
----------------------------------------------------------------------------------------------------------------------------------
35 No 000217008
----------------------------------------------------------------------------------------------------------------------------------
36 No 000211001
----------------------------------------------------------------------------------------------------------------------------------
37 No 6058
----------------------------------------------------------------------------------------------------------------------------------
38 No 6442
----------------------------------------------------------------------------------------------------------------------------------
39 No 991126001
----------------------------------------------------------------------------------------------------------------------------------
40 No 991116002
----------------------------------------------------------------------------------------------------------------------------------
41 No 991018006
----------------------------------------------------------------------------------------------------------------------------------
42 No 991126006
----------------------------------------------------------------------------------------------------------------------------------
43 No 000120003
----------------------------------------------------------------------------------------------------------------------------------
44 No 6076
----------------------------------------------------------------------------------------------------------------------------------
45 No 6286
----------------------------------------------------------------------------------------------------------------------------------
46 No 991223006
----------------------------------------------------------------------------------------------------------------------------------
47 No 000505005
----------------------------------------------------------------------------------------------------------------------------------
48 No 991126003
----------------------------------------------------------------------------------------------------------------------------------
49 No 991101011
----------------------------------------------------------------------------------------------------------------------------------
50 No 990922017
----------------------------------------------------------------------------------------------------------------------------------
51 No 000125009
----------------------------------------------------------------------------------------------------------------------------------
52 No 000405002
----------------------------------------------------------------------------------------------------------------------------------
53 No 6481
----------------------------------------------------------------------------------------------------------------------------------
54 No 990330038
----------------------------------------------------------------------------------------------------------------------------------
55 No 990909006
----------------------------------------------------------------------------------------------------------------------------------
56 No 6252
----------------------------------------------------------------------------------------------------------------------------------
57 No 991203015
----------------------------------------------------------------------------------------------------------------------------------
58 No 990802008
----------------------------------------------------------------------------------------------------------------------------------
59 No 5159
----------------------------------------------------------------------------------------------------------------------------------
60 No 6482
----------------------------------------------------------------------------------------------------------------------------------
61 No 990721018
----------------------------------------------------------------------------------------------------------------------------------
62 No 5866
----------------------------------------------------------------------------------------------------------------------------------
63 No 990614006
----------------------------------------------------------------------------------------------------------------------------------
64 Yes - Shiv Kureti 000113005C
----------------------------------------------------------------------------------------------------------------------------------
65 No 5739
----------------------------------------------------------------------------------------------------------------------------------
66 No 991104004
----------------------------------------------------------------------------------------------------------------------------------
67 No 991104006
----------------------------------------------------------------------------------------------------------------------------------
68 No 5819
----------------------------------------------------------------------------------------------------------------------------------
69 No 990511008
----------------------------------------------------------------------------------------------------------------------------------
70 No 991012006
----------------------------------------------------------------------------------------------------------------------------------
71 Yes - Hersha Hospitality Trust (Pool 1) 991130001
----------------------------------------------------------------------------------------------------------------------------------
72 No 991012004
----------------------------------------------------------------------------------------------------------------------------------
73 No 991118007
----------------------------------------------------------------------------------------------------------------------------------
74 No 6050
----------------------------------------------------------------------------------------------------------------------------------
75 Yes - Shiv Kureti 000113005B
----------------------------------------------------------------------------------------------------------------------------------
76 Yes No No 000204004
----------------------------------------------------------------------------------------------------------------------------------
77 No 000303002
----------------------------------------------------------------------------------------------------------------------------------
78 Yes No No 991130006
----------------------------------------------------------------------------------------------------------------------------------
79 No 990616010
----------------------------------------------------------------------------------------------------------------------------------
80 No 000106002
----------------------------------------------------------------------------------------------------------------------------------
81 No 001444003
----------------------------------------------------------------------------------------------------------------------------------
82 No 5504
----------------------------------------------------------------------------------------------------------------------------------
83 No 001444001
----------------------------------------------------------------------------------------------------------------------------------
84 Yes No No 990929005
----------------------------------------------------------------------------------------------------------------------------------
85 Yes - Hersha Hospitality Trust (Pool 1) 991129012
----------------------------------------------------------------------------------------------------------------------------------
86 No 6307
----------------------------------------------------------------------------------------------------------------------------------
87 No 990715004
----------------------------------------------------------------------------------------------------------------------------------
88 Yes - Hersha Hospitality Trust (Pool 2) 991222001
----------------------------------------------------------------------------------------------------------------------------------
89 No 6246
----------------------------------------------------------------------------------------------------------------------------------
90 No 990125058
----------------------------------------------------------------------------------------------------------------------------------
91 No 991012005
----------------------------------------------------------------------------------------------------------------------------------
92 No 5116
----------------------------------------------------------------------------------------------------------------------------------
93 No 5603
----------------------------------------------------------------------------------------------------------------------------------
94 No 991214006
----------------------------------------------------------------------------------------------------------------------------------
95 No 6009
----------------------------------------------------------------------------------------------------------------------------------
96 No 990714003
----------------------------------------------------------------------------------------------------------------------------------
97 No 990528006
----------------------------------------------------------------------------------------------------------------------------------
98 No 991015013
----------------------------------------------------------------------------------------------------------------------------------
99 Yes No No 000410011
----------------------------------------------------------------------------------------------------------------------------------
100 No 991021004
----------------------------------------------------------------------------------------------------------------------------------
101 No 991201004
----------------------------------------------------------------------------------------------------------------------------------
102 No 991216011
----------------------------------------------------------------------------------------------------------------------------------
103 Yes - Hersha Hospitality Trust (Pool 2) 991222002
----------------------------------------------------------------------------------------------------------------------------------
104 Yes - Hersha Hospitality Trust (Pool 1) 991130002
----------------------------------------------------------------------------------------------------------------------------------
105 No 990709007
----------------------------------------------------------------------------------------------------------------------------------
106 No 000202004
----------------------------------------------------------------------------------------------------------------------------------
107 Yes - Shiv Kureti 000113005A
----------------------------------------------------------------------------------------------------------------------------------
108 No 6321
----------------------------------------------------------------------------------------------------------------------------------
109 No 990813001
----------------------------------------------------------------------------------------------------------------------------------
110 No 991012001
----------------------------------------------------------------------------------------------------------------------------------
111 No 990115001
----------------------------------------------------------------------------------------------------------------------------------
112 No 991110023
----------------------------------------------------------------------------------------------------------------------------------
113 No 990326014
----------------------------------------------------------------------------------------------------------------------------------
114 No 991007009
----------------------------------------------------------------------------------------------------------------------------------
115 No 000211004
----------------------------------------------------------------------------------------------------------------------------------
116 No 000211003
----------------------------------------------------------------------------------------------------------------------------------
117 No 001444002
----------------------------------------------------------------------------------------------------------------------------------
118 No 5424
----------------------------------------------------------------------------------------------------------------------------------
119 No 990412004
----------------------------------------------------------------------------------------------------------------------------------
120 Yes No No 000418002
----------------------------------------------------------------------------------------------------------------------------------
121 No 6316
----------------------------------------------------------------------------------------------------------------------------------
122 Yes No No 000203010
----------------------------------------------------------------------------------------------------------------------------------
123 No 001444004
----------------------------------------------------------------------------------------------------------------------------------
124 No 990923011
----------------------------------------------------------------------------------------------------------------------------------
125 No 000324002
----------------------------------------------------------------------------------------------------------------------------------
126 No 6466
----------------------------------------------------------------------------------------------------------------------------------
127 No 991201009
----------------------------------------------------------------------------------------------------------------------------------
128 No 000307002
----------------------------------------------------------------------------------------------------------------------------------
129 No 990927004
----------------------------------------------------------------------------------------------------------------------------------
130 Yes - Hersha Hospitality Trust (Pool 1) 991129013
----------------------------------------------------------------------------------------------------------------------------------
131 No 990923013
----------------------------------------------------------------------------------------------------------------------------------
132 No 990420003
----------------------------------------------------------------------------------------------------------------------------------
133 No 991006005
----------------------------------------------------------------------------------------------------------------------------------
134 No 990825004
----------------------------------------------------------------------------------------------------------------------------------
135 No 991129014
----------------------------------------------------------------------------------------------------------------------------------
136 No 6459
----------------------------------------------------------------------------------------------------------------------------------
137 No 6121
----------------------------------------------------------------------------------------------------------------------------------
138 No 6195
----------------------------------------------------------------------------------------------------------------------------------
139 No 991021001
----------------------------------------------------------------------------------------------------------------------------------
140 No 990520007
----------------------------------------------------------------------------------------------------------------------------------
141 No 001444005
----------------------------------------------------------------------------------------------------------------------------------
142 Yes - Putnam Centers 6022
----------------------------------------------------------------------------------------------------------------------------------
143 No 000106007
----------------------------------------------------------------------------------------------------------------------------------
144 No 000211002
----------------------------------------------------------------------------------------------------------------------------------
145 No 6151
----------------------------------------------------------------------------------------------------------------------------------
146 No 990126015
----------------------------------------------------------------------------------------------------------------------------------
147 Yes No No 990921003
----------------------------------------------------------------------------------------------------------------------------------
148 No 990922003
----------------------------------------------------------------------------------------------------------------------------------
149 Yes No No 990928008
----------------------------------------------------------------------------------------------------------------------------------
150 No 991203016
----------------------------------------------------------------------------------------------------------------------------------
151 No 981202018
----------------------------------------------------------------------------------------------------------------------------------
152 No 990413006
----------------------------------------------------------------------------------------------------------------------------------
153 No 6221
----------------------------------------------------------------------------------------------------------------------------------
154 No 991208004
----------------------------------------------------------------------------------------------------------------------------------
155 No 990125005
----------------------------------------------------------------------------------------------------------------------------------
156 Yes - Putnam Centers 6021
----------------------------------------------------------------------------------------------------------------------------------
157 No 000222006
----------------------------------------------------------------------------------------------------------------------------------
158 No 6429
----------------------------------------------------------------------------------------------------------------------------------
159 No 000211005
----------------------------------------------------------------------------------------------------------------------------------
160 No 991216003
----------------------------------------------------------------------------------------------------------------------------------
161 No 6202
----------------------------------------------------------------------------------------------------------------------------------
162 No 5932
----------------------------------------------------------------------------------------------------------------------------------
163 No 6282
----------------------------------------------------------------------------------------------------------------------------------
164 No 6222
----------------------------------------------------------------------------------------------------------------------------------
165 No 6363
----------------------------------------------------------------------------------------------------------------------------------
166 No 5927
----------------------------------------------------------------------------------------------------------------------------------
167 No 5612
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE II
SCHEDULE OF EXCEPTIONS
TO MORTGAGE FILE DELIVERY
<PAGE>
Report Run Date: September 25, 2000
LaSalle Bank N.A.
Asset-Backed Securities
Trust Services
CUSTODIAN'S REPORT OF
COLLATERAL HOLDINGS
(DOCUMENTS WITH EXCEPTIONS ONLY)
CUSTODY CLIENT: LEHMAN BROTHERS
POOL NAME:
Pool Type: COMM MTG BACKED
Questions concerning information contained in this report should be directed to
the person(s) identified below.
Collateral Administrator: Hanna Woo, Trust Officer
Phone No.: 312-904-0345
Email Address: [email protected]
Trust Administrator: Barbara Marik, Assistant Vice President
Phone No.: 312-904-7323
Email Address: [email protected]
Report Parameters:
Primary Sort: LaSalle Loan No.
Secondary Sort: LaSalle Loan No.
Report Run By: Woo
Run Date: September 25, 2000
Report Page No. 1
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/401 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
LOAN INFORMATION
BEGIN RECORD FOR LOAN ID: 242-0026-000
LOAN ID: 242-0026-000
BORROWER: PINEWOOD ESTATES OF MICHIGAN, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PREV LOAN ID: 4-06-NJ-0347 PROPERTY: PINEWOOD ESTATES NOTE AMOUNT: $2,000,000.00 Counsel: SIMPSON ZELENOCK
CONTROL REF: 0123 CITY, ST.: SOUTHFIELD, MI NOTE DATE: 02/28/00 Misc. Info. #1: JEFF URBAN
GROUP: C4 MATURITY: 03/01/10 Misc. Info. #2: PINEWOOD ESTATES
Loan Memo: Re: TABLE FUNDED- THIS LOAN HAS BEEN TABLE FUNDED...ORIGINAL DOCS TO FOLLOW
***************************************************
</TABLE>
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
--------------------------------------------------------------------------------
MORTGAGE INSTRUMENT
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
ASSIGNMENT OF MORTGAGE "TO TRUSTEE"
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
--------------------------------------------------------------------------------
TITLE POLICY #1 Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
ASSIGNMENT OF LEASES & RENTS
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
Report Page No. 2
<PAGE>
LOAN ID: 242-0026-000 (CON'T) DOCUMENTS
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
--------------------------------------------------------------------------------
ASSIGNMENT OF LEASES & RENTS "TO TRUSTEE"
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
--------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -SOS-DE
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY - OCEAN COUNTY
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY - OCEAN COUNTY
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
UCC ORIGINAL FIXTURE FILING - COUNTY - SOS-MI
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
UCC ORIGINAL FILING - ADDITIONAL #1
Document is UNRECORDED COPY.
EXCETION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
END RECORD FOR Loan ID: 242-0026-000 (1)
Report Page No. 3
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 242-0027-000 LOAN INFORMATION
LOAN ID: 242-0027-000
BORROWER: LAUREL COMMONS MHC, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PREV LOAN ID: 4-06-PA-0370 PROPERTY: LAUREL COMMONS MHC NOTE AMOUNT: $3,600,000.00 Counsel: SIMPSON ZELENOCK
CONTROL REF: 0081 CITY, ST.: OAKBROOK, IL NOTE DATE: 02/29/00 Misc. Info. #1: JEFF URBAN
GROUP: C4 MATURITY: 03/01/10 Misc. Info. #2: LAUREL COMMO
Loan Memo: Re: TABLE FUNDED- THIS LOAN HAS BEEN TABLE FUNDED, ORIGINAL DOCS TO FOLLOW
***************************************************
</TABLE>
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
--------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -SOS IL
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
UCC ORIGINAL FILING - ADDITIONAL #1 -UCC-1 SOS-DE
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
UCC ORIGINAL FILING - ADDITIONAL #2 -UCC-1 SOS-PA
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
END RECORD FOR Loan ID: 242-0027-000 (1)
Report Page No. 4
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 242-0028-000 LOAN INFORMATION
LOAN ID: 242-0028-000
BORROWER: PARKER BRANDENTON, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PREV LOAN ID: 5-06-FL-0349 PROPERTY: SUNNY ACRES AND CAPITAL NOTE AMOUNT: $1,544,000.00 Counsel: SIMPSON ZELENOCK
MOBILE COUR
CONTROL REF: 0141 CITY, ST.: KEY LARGO, FL NOTE DATE: 03/03/00 Misc. Info. #2: SUNNY ACRES
GROUP: C4 MATURITY: 04/01/10
Loan Memo: RE: TABLE FUNDING - 3-3-00 THIS LOAN WAS TABLE FUNDED. ORIGINAL DOCS TO FOLLOW.
***************************************************
</TABLE>
DOCUMENTS
---------
DOCUMENT
--------
DOCUMENT CONDITION DEFICIENCY/EXCEPTION
------------------ --------------------
ADDITIONAL DOCUMENT INFORMATION (IF ANY)
----------------------------------------
ASSIGNMENT OF MORTGAGE "TO TRUSTEE"
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
--------------------------------------------------------------------------------
ASSIGNMENT OF ASSIGNMENT OF LEASES & RENTS "TO TRUSTEE"
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
--------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY "TO TRUSTEE"
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
--------------------------------------------------------------------------------
END RECORD FOR Loan ID:242-0028-000 (1)
Report Page No. 5
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS Print Date: 0/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 242-0030-000 LOAN INFORMATION
LOAN ID: 242-0030-000
BORROWER: HIGHLAND WOOD SOUTH RVP, LLC.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PREV LOAN ID: 9-12-FL-0403 PROPERTY: HIGHLAND WOOD SOUTH RVP NOTE AMOUNT: $2,280,000.00 Counsel: SIMPSON ZELENOCK
CONTROL REF: 0117 CITY, ST.: CITRUS HEIGHTS, CA NOTE DATE: 06/16/00 Misc. Info. #2: HIGHLAND WOOD
GROUP: C4 MATURITY: 07/01/10
Loan Memo: RE: TABLE FUNDED - THIS IS A TABLE FUNDED LOAN. ALL DOCUMENTS ARE COPIES. ALL ORIGINALS TO FOLLOW
***************************************************
</TABLE>
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
--------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY "TO TRUSTEE"
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
--------------------------------------------------------------------------------
END RECORD FOR Loan ID: 242-0030-0000 (1)
Report Page No. 6
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS Print Date: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0045-000 LOAN INFORMATION
----------------
LOAN ID: 321-0045-000
BORROWER: WILLOW CREEK ASSOCIATES, L.P.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
PROPERTY: WILLOW CREEK APARTMENTS NOTE AMOUNT: $3,200,000.00 Counsel: ALSTON BIRD
CONTROL REF: 0093 CITY, ST.: SHELBY COUNTY, TN NOTE DATE: 09/02/99 Misc. Info. #1: SHELBY COUNTY
GROUP: C4 MATURITY: 09/06/09 Misc. Info. #2: WILLOW CREEK
1ST PMT: 10/06/99
***************************************************
</TABLE>
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------
<S> <C>
UCC FIXTURE ASSIGNMENT - COUNTY "TO BLANK" - FIXTURE FILING; SHELBY COUNTY, TENNESSEE;
Document is MISSING. CENTRAL PARK CAPITAL, L.P. TO BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
---------------------------------------------------------------------------------------------------------
</TABLE>
END RECORD FOR Loan ID: 321-0045-000 (1)
Report Page No. 7
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR Loan ID: 321-0076-003
LOAN INFORMATION
----------------
LOAN ID: 321-0076-003
BORROWER: WESTLAND SOUTH SHORE MALL L.P.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
CONTROL REF: 0001 PROPERTY: PROPERTY FILE NOTE AMOUNt: $86,105,673.02 Counsel: CADWALADER WICKERSHAM
GROUP: C4 CITY, ST.: ISLIP, NY NOTE DATE: Misc. Info. #1: SUFFOLK COUNTY
MATURITY: Misc. Info. #2: PROPERTY FILE
Loan Memo: RE: Master File Original loan was 3 properties (Downtown, Eastland and Westland). Downtown and Eastland became
securitized. Westland remains in conduit. Master file is located in 321-0076-0000.
****************************************************
</TABLE>
DOCUMENTS
---------
DOCUMENT
--------
DOCUMENT CONDITION ADDITIONAL DOCUMENT INFORMATION (IF ANY)
------------------ ----------------------------------------
DEFICIENCY/EXCEPTION
--------------------
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------------------------
<S> <C>
ENDORSEMENT TO PROMISSORY NOTE "TO BLANK" -UBS PRINCIPAL FINANCE LLC TO BLANK
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------------------------------------------------------
-MODIFICATION TO MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
MODIFICATION OF MORTGAGE INSTRUMENT SECURITY
AGREEMENT AND FIXTURE FILING dated 05/08/00
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
</TABLE>
Report Page No. 8
<PAGE>
LOAN ID: 321-0076-003 (CON'T) DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MODIFICATION OF ASSIGNMENT OF LEASES & RENTS -FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE dated 05/08/00
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
-----------------------------------------------------------------------------------------------------------------------------------
UCC ORGINAL FILING - COUNTY -SUFFOLK COUNTY, NEW YORK; to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1)
END RECORD FOR Loan ID: 321-0076-003
Report Page No. 9
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR Loan ID: 321-0102-000 LOAN INFORMATION
----------------
LOAN ID: 321-0102-000
BORROWER: P S. 71 ASSOCIATES LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
CONTROL REF: 0005 PROPERTY: TOMPKINS SQUARE APARTMENTS NOTE AMOUNT: $26,978,567.34 Counsel: ORRICK HERRINGTON
GROUP: C4 CITY: NEW YORK, NY NOTE DATE: 05/02/00 Misc. Info. #1: NEW YORK COUNTY
MATURITY: 02/11/30 Misc. Info. #2: P.S. 71 ASSOC
1ST PMT: 06/11/00
Loan Memo: RE: UNDERLYING DOCS. - ORIGINAL LOAN $17.6M WITH UNDERLYING DOCS IN THE FILE.
CONSOLIDATED LOAN DOCS. IN FILE ALSO.
*****************************************************
</TABLE>
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
ENDORSEMENT TO PROMISSORY NOTE "TO BLANK" -UBS PRINCIPAL FINANCE LLC to BLANK
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
-----------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF MORTGAGE "TO BLANK" -UBS PRINCIPAL FINANCE LLC to BLANK
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
-----------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF ASSIGNMENT OF LEASES & RENTS "TO BLANK" -UBS PRINCIPAL FINANCE LLC TO BLANK
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Report Page No. 10
<PAGE>
<TABLE>
<CAPTION>
LOAN ID: 321-0102-000 (CON'T) DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ORIGINAL FILING - STATE" -AMENDMENT; NEW YORK SECRETARY OF STATE; to UBS
PRINCIPAL FINANCE LLC (FROM ORIGINAL LOAN)
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
----------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT -STATE INTERIM #1 -AMENDMENT; NEW YORK SECRETARY OF STATE;
UBS PRINCIPAL FINANCE LLC (FROM ORIGINAL LOAN)
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
----------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - STATE "TO BLANK" -NEW YORK SECRETARY OF STATE;
UBS PRINCIPAL FINANCE LLS to BLANK (FROM ORIGINAL LOAN)
Document is MISSING
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
----------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -NEW YORK COUNTY, NEW YORK;;
to UBS PRINCIPAL FINANCE LLC (FROM ORIGINAL LOAN)
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
----------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT -COUNTY INTERIM #1 -AMENDMENT; NEW YORK COUNTY, NEW YORK;
to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
----------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY "TO BLANK" -NEW YORK COUNTY, NEW YORK;
UBS PRINCIPAL FINANCE T to BLANK (FROM ORIGINAL LOAN)
Document is MISSING
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
----------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0102-000 (1)
</TABLE>
Report Page No. 11
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 9/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR Loan ID: 321-0114-000 LOAN INFORMATION Report XRef#: 3
----------------
LOAN ID: 321-0114-000
BORROWER: HILLTOP SQUARE S/C PARTNERS, LTD
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
CONTROL REF: 0137 PROPERTY: HILLTOP SHOPPING CENTER NOTE AMOUNT: $1,600,000.00 Counsel: ORRICK HERRINGTON
GROUP: C4 CITY, ST.: TX NOTE DATE: 01/31/00 Misc. Info. #1: TARRANT COUNTY
MATURITY: 02/11/30 Misc. Info. #2: HILLTOP
1ST PMT: 03/11/00
************************************************
</TABLE>
DOCUMENTS
---------
DOCUMENT
--------
DOCUMENT CONDITION ADDITIONAL DOCUMENT INFORMATION (IF ANY)
------------------ ----------------------------------------
DEFICIENCY/EXCEPTION
--------------------
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT - DEED OF TRUST AND SECURITY AGREEMENT
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
-------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY # 1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
-------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF LEASES & RENTS
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
-------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -TEXAS SECRETARY OF STATE;
UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
-------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Report Page No. 12
<PAGE>
<TABLE>
<CAPTION>
LOAN ID: 321-0114-000 (CON'T) DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ASSIGNMENT - STATE "TO BLANK" -TEXAS SECRETARY OF STATE;
UBS PRINCIPAL FINANCE LLC to BLANK
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -TARRANT COUNTY, TEXAS;
to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY "TO BLANK" -TARRANT COUNTY, TEXAS;
TO UBS PRINCIPAL FINANCE LLC to BLANK
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID:321-0114-000 (1)
</TABLE>
Report Page No. 13
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
Issuer/Pool: 1011/425 COLLATERAL DOCUMENTS Print Date: 09/25/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0123-000 LOAN INFORMATION Report XRef#: 2
----------------
LOAN ID: 321-0123-000
BORROWER: PUTNAM CENTER - PALATKA, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
Property: SUPERVAL-WESTGATE NOTE AMOUNT: $1,040,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0156 CITY, ST.: SANIBEL, FL NOTE DATE: 02/160// Misc. Info. #1: PUTNAM COUNTY
GROUP: C4 MATURITY: 03/11/30 Misc. Info. #2: SUPERVAL-WEST
1ST PMT: 04/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -FLORIDA SECRETARY OF STATE;
to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORGINAL OR CLERK CERTIFIED COPY OF REQUIRED
-----------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0123-000 (1)
</TABLE>
Report Page No. 14
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0124-000 LOAN INFORMATION
----------------
LOAN ID: 321-0124-000
BORROWER: PUTNAM CENTER-INTERLACHEN, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: SUPERVAL-INTERLACHEN NOTE AMOUNT: $1,540,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0142 CITY, ST.: SANIBEL, FL NOTE DATE: 02/16/00 Misc. Info. #1: PUTNAM COUNTY
GROUP: C4 MATURITY: 03/11/30 Misc. Info. #2: SUPERVAL-INTE
1st Pmt: 04/11/00
***************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -FLORIDA SE OF STATE, TO UBS PRICNIAPL FINANCE LLC
Document is UNRECORDED COPY
EXCEPTION --> RECORDED ORIGINAL OR CLERK OR CLERK CERTIFIED COPY REQUIRED
-------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0124-000 (1)
</TABLE>
Report Page No. 15
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0126-000 LOAN INFORMATION
LOAN ID: 321-0126-000
BORROWER: DAVID J. HEROUX, TRUSTEE
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
PROPERTY: PLYMOUTH REALTY TRUST Note Amount: $2,160,000.00 Counsel: KRONISH LIEB WEINER
NOMINEE TRUST
CONTROL REF: 0118 CITY, ST.: FALL RIVER, MA Note Date: 03/06/00 Misc. Info. #1: BRISTOL COUNTY
GROUP: C4 Maturity: 03/11/10 Misc. Info. #2: PLYMOUTH
1st Pmt: 04/11/00
********************************************************
<CAPTION>
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ORIGINAL FILING - STATE - MASSACHUSETTS SECRETARY OF STATE;
to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0126-000 (1)
</TABLE>
Report Page No. 16
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0128-000 LOAN INFORMATION
----------------
LOAN ID: 321-0128-000
BORROWER: SOVEREIGN WORLD RESOURCES, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 15-45 ELAM STREET NOTE AMOUNT: $820,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0161 CITY, ST.: NEW BRITAIN, CT NOTE DATE: 02/17/00 Misc. Info. #1: HARTFORD COUNTY
GROUP: C4 MATURITY: 03/11/10 Misc. Info. #2: 15-45 ELAM ST
1ST PMT: 04/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE - CONNECTICUT SECRETARY OF STATE;
to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0128-000 (1)
</TABLE>
Report Page No. 17
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0129-000 LOAN INFORMATION Report XRef#: 6
----------------
LOAN ID: 321-0129-000
BORROWER: PYARALI ENTERPRISES, INC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
Property: VICTORIAN APARTMENTS Note Amount: $3,300,000.00 Counsel: ORRICK HERRINGTON
CONTROL REF: 0086 City, St.: TX NOTE DATE: 02/18/00 Misc. Info. #1: DALLAS COUNTY
GROUP: C4 MATURITY: 03/11/30 Misc. Info. #2: VICTORIAN APT
1ST PMT: 04/11/00
-------------------------------------
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE - TEXAS SECRETARY OF STATE;
to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE..
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0129-000 (1)
</TABLE>
Report Page No. 18
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0130-000 LOAN INFORMATION
----------------
LOAN ID: 321-0130-000
BORROWER: PEACHTREE VILLAGE, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: PEACHTREE VILLAGE NOTE AMOUNT: $4,500,000.00 Counsel: ORRICK HERRINGTON
CONTROL REF: 0074 CITY, ST.: AR NOTE DATE: 03/02/00 Misc. Info. #1: SEBASTIAN COUNTY
GROUP: C4 MATURITY: 03/11/25 Misc. Info. #2: PEACHTREE VIL
1ST PMT: 04/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT - DEED OF TRUST AND SECURITY AGREEMENT
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF LEASES & RENTS - PEACHTREE VILLAGE, LLC to UBS PRINCIPAL FINANCE
LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE - ARKANSAS SECRETARY OF STATE;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - STATE "TO BLANK" - ARKANSAS SECRETARY OF STATE;
Document is MISSING. UBS PRINCIPAL FINANCE LLC to BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Report Page No. 19
<PAGE>
<TABLE>
<CAPTION>
LOAN ID: 321-0130-000 (CON'T) DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ORIGINAL FILING - COUNTY - SEBASTIAN COUNTY, ARKANSAS;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY "TO BLANK" - SEBASTIAN COUNTY, ARKANSAS;
Document is MISSING. UBS PRINCIPAL FINANCE LLC to BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID 321-0130-000: (1)
</TABLE>
Report Page No. 20
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0133-000 LOAN INFORMATION
----------------
LOAN ID: 321-0133-000
BORROWER: 136 MADISON LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 136 MADISON NOTE AMOUNT: $22,500,000.00 Counsel: ORRICK HERRINGTON
CONTROL REF: 0006 CITY, ST.: NEW YORK, NY NOTE DATE: 03/02/00 Misc. Info. #1: NEW YORK COUNTY
GROUP: C4 MATURITY: 03/11/25 Misc. Info. #2: 136 MADISON
Loan Memo: RE: Note Modification Agreement revises P&l and interest rate. 1ST PMT: 04/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF LEASES & RENTS - 136 MADISON LLC to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE - NEW YORK SECRETARY OF STATE; SECURED PARTY: UBS
Document is UNRECORDED COPY. PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - STATE "TO BLANK" - UBS PRINCIPAL FINANCE LLC to BLANK
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY - NEW YORK COUNTY, NY; SECURED PARTY: UBS PRINCIPAL
Document is UNRECORDED COPY. FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY "TO BLANK" - UBS PRINCIPAL FINANCE LLC to BLANK
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
--------------------------------------------------------------------------------------------
END RECORD FOR Loan ID 321-0133-000: (1)
</TABLE>
Report Page No. 21
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0134-000 LOAN INFORMATION
----------------
LOAN ID: 321-0134-000
BORROWER: 1455 WASHINGTON AVENUE ASSOCIATES
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 33 FULLER AVENUE NOTE AMOUNT: $1,500,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0145 CITY, ST.: ALBANY, NY NOTE DATE: 03/22/00 Misc. Info. #1: ALBANY COUNTY
GROUP: C4 MATURITY: 04/11/15 Misc. Info. #2: 33 FULLER AVE
1ST PMT: 05/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1 Document is MISSING.
Document is UNRECORDED COPY.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE - NEW YORK SECRETARY OF STATE;
Document Is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY - ALBANY COUNTY, NEW YORK;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0134-000 (1)
</TABLE>
Report Page No. 22
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0139-000 LOAN INFORMATION
----------------
LOAN ID: 321-0139-000
BORROWER: 1334 WALNUT STREET PARTNERS
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: 1334 WALNUT STREET Note Amount: $700,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0164 City, St.: PHILADELPHIA, PA Note Date: 04/13/00 Misc. Info. #1: PHILADELPHIA CNTY
GROUP: C4 Maturity: 05/11/10 Misc. Info. #2: 1334 WALNUT
1st Pmt: 06/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT - OPEN-END MORTGAGE; MORTGAGE, SECURITY AGREEMENT,
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE. FIXTURE FINANCING STATEMENT AND ASSIGNMENT OF LEASES
AND RENTS
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
-----------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
-----------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE - PENNSYLVANIA SECRETARY OF STATE;
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
-----------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY - PHILADELPHIA COUNTY, PA;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
-----------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - ADDITIONAL #1 - PROTHONOTARY OF PHILADELPHIA COUNTY, PA;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
-------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID 321-0139-000: (1)
</TABLE>
Report Page No. 23
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0140-000 LOAN INFORMATION
----------------
LOAN ID: 321-0140-000
BORROWER: 1501 LOCUST STREET ASSOCIATES
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 1501 LOCUST STREET NOTE AMOUNT: $1,120,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0153 CITY, ST.: PHILADELPHIA, PA NOTE DATE: 04/13/00 Misc. Info. #1: PHILADELPHIA CNTY
GROUP: C4 MATURITY: 05/11/10 Misc. Info. #2: 1501 LOCUST
1ST PMT: 06/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT - OPEN-END MORTGAGE; MORTGAGE, SECURITY AGREEMENT,
FIXTURE FINANCING STATEMENT AND ASSIGNMENT OF LEASES
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE. AND RENTS
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE - PENNSYLVANIA SECRETARY OF STATE;
Document is UNRECORDED ORIGINAL. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY - PHILADELPHIA COUNTY, PA;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - ADDITIONAL #1 - PROTHONOTARY OF PHILADELPHIA COUNTY, PA;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------- ------------------------------------------------------------------------
END RECORD FOR Loan ID 321-0140-000: (1)
</TABLE>
Report Page No. 24
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0141-000 LOAN INFORMATION
----------------
LOAN ID: 321-0141-000
BORROWER: CIRRUS WESTERN OAKS LP
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 3500 & 3600 WILLIAM D. TAITE AVENUE NOTE AMOUNT: $6,700,000.00 Counsel: SCHULTE ROTH
CONTROL REF: 0044 CITY, ST.: GRAPEVINE, TX NOTE DATE: 04/14/00 Misc. Info. #1: TARRANT COUNTY
GROUP: C4 MATURITY: 05/11/30 Misc. Info. #2: GRAPEVINE
1ST PMT: 06/11/00
*****************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ORIGINAL FILING - STATE -TEXAS SECRETARY OF STATE;
Document is COPY, WITH EVIDENCE OF RECORDING, NOT CC. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> INCOMPLETE/MISSING PAGE - (MISSING SCHEDULE A)
EXCEPTION --> INCOMPLETE/MISSING SIGNATURES
------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0141-000 (1)
</TABLE>
Report Page No. 25
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0142-000 LOAN INFORMATION
----------------
LOAN ID: 321-0142-000
BORROWER: CROWN EXCHANGE PARTNERS L.P.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 6333 FOREST PARK ROAD NOTE AMOUNT: $27,000,000.00 Counsel: SCHULTE ROTH
CONTROL REF: 0004 CITY, ST.: DALLAS, TX NOTE DATE: 04/13/00 Misc. Info. #1: DALLAS COUNTY
GROUP: C4 MATURITY: 05/11/30 Misc. Info. #2: CROWN EXCHANG
1ST PMT: 06/11/00
************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ORIGINAL FILING - STATE -TEXAS SECRETARY OF STATE;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - ADDITIONAL #1 -DELAWARE SECRETARY OF STATE;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0142-000 (1)
</TABLE>
Report Page No. 26
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0144-000 LOAN INFORMATION
----------------
LOAN ID: 321-0144-000
BORROWER: WHALLEY AVENUE REALTY, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 419 WHALLEY AVENUE NOTE AMOUNT: $1,575,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0138 CITY, ST.: NEW HAVEN, CT NOTE DATE: 04/19/00 Misc. Info. #1: NEW HAVEN COUNTY
GROUP: C4 MATURITY: 05/11/10 Misc. Info. #2: WHALLEY
1ST PMT: 06/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
<CAPTION>
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT -OPEN-MORTGAGE DEED, SECURITY AGREEMENT, FIXTURE
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE. FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND
RENTS
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -CONNECTICUT SECRETARY OF STATE;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -NEW HAVEN COUNTY, CONNECTICUT;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0144-000 (1)
</TABLE>
Report Page No. 27
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0146-000 LOAN INFORMATION
----------------
LOAN ID: 321-0146-000
BORROWER: 192 EAST 75TH STREET CO., L.P.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
PROPERTY: 192 EAST 75TH STREET NOTE AMOUNT: $6,700,000.00 Counsel: SCHULTE ROTH
CONTROL REF: 0045 CITY, ST.: NEW YORK, NY NOTE DATE: 04/20/00 Misc. Info. #1: NEW YORK COUNTY
GROUP: C4 MATURITY: 05/11/30 Misc. Info. #2: 192 EAST 75TH
1ST PMT: 06/11/00
Loan Memo: RE: ORIGINAL LOAN - Original mortgage loan files received from GMAC Commercial Mortgage Corporation located in the file.
**********************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT
Document is MISSING.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -NEW YORK SECRETARY OF STATE;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - STATE INTERIM #1 -NEW YORK SECRETARY OF STATE; TERMINATION;
Document is UNRECORDED COPY. to GMAC COMMERCIAL MORTGAGE CORP.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -NEW YORK COUNTY, NEW YORK;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY INTERIM #1 -NEW YORK COUNTY, NEW YORK; TERMINATION;
Document is UNRECORDED COPY. to GMAC COMMERCIAL MORTGAGE
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID:321-0146-000 (1)
</TABLE>
Report Page No. 28
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0148-000 LOAN INFORMATION Report XRef#: 3
----------------
LOAN ID: 321-0148-000
BORROWER: MARK W. BALDWIN AND CYNTHIA L.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: MASTER FILE NOTE AMOUNT: $800,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0162 NOTE DATE: 04/25/00
GROUP: C4 MATURITY: 05/11/10 Misc. Info. #2: BALDWIN
1ST PMT: 06/11/00
*********************************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID:321-0148-000 (1)
</TABLE>
Report Page No. 29
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0148-001 LOAN INFORMATION
----------------
LOAN ID: 321-0148-001
BORROWER: MARK W. BALDWIN AND CYNTHIA L.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: PROPERTY FILE NOTE AMOUNT: $0.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0162 CITY, ST.: BENNINGTON, VT Misc. Info. #1: BENNINGTON COUNTY
GROUP: C4 Misc. Info. #2: PROPERTY FILE
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
ASSIGNMENT OF MORTGAGE INTERIM #1 -ASSIGNMENT OF MORTGAGE, SECURITY AGREEMENT FIXTURE
FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND
RENTS; UBS AG STAMFORD BRANCH to UBS PRINCIPAL
FINANCE LLC
Document is UNRECORDED ORIGINAL - INFO AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
- (RECORD AFTER SECURITIZATION)
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -VERMONT SECRETARY OF STATE; to UBS AG STAMFORD BRANCH
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGMENT - STATE INTERIM #1 -VERMONT SECRETARY OF STATE; UBS AG STAMFORD BRANCH
to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED ORIGINAL - INFO AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
- (RECORD AFTER SECURITIZATION)
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Report Page No. 30
<PAGE>
<TABLE>
<CAPTION>
LOAN ID: 321-0148-001 (CON'T) DOCUMENTS
---------
DOCUMENT - DOCUMENT MEMO ADDITIONAL DOCUMENT INFORMATION (IF ANY)
------------------------ ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ORIGINAL FILING - COUNTY -BENNINGTON COUNTY, VERMONT; to UBS AG STAMFORD BRANCH
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY INTERIM #1 -BENNINGTON COUNTY, VERMONT; UBS AG STAMFORD BRANCH
to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
- (RECORD AFTER SECURITIZATION)
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID:321-0148-001 (1)
</TABLE>
Report Page No. 31
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0148-002 LOAN INFORMATION
----------------
LOAN ID: 321-0148-002
BORROWER: MARK W. BALDWIN AND CYNTHIA L.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: PROPERTY FILE Note Amount: $0.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0162 City, St.: CHATHAM, NY Misc. Info. #1: COLUMBIA COUNTY
GROUP: C4 Misc. Info. #2: PROPERTY FILE
---------------------------------------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
ASSIGNMENT OF MORTGAGE INTERIM #1 -ASSIGNMENT OF MORTGAGE, SECURITY AGREEMENT FIXTURE
FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND
RENTS; UBS AG STAMFORD BRANCH to UBS PRINCIPAL
FINANCE LLC
Document is UNRECORDED ORIGINAL - INFO AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
- (RECORD AFTER SECURITIZATION)
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -NEW YORK SECRETARY OF STATE; to UBS AG STAMFORD
Document is UNRECORDED COPY. BRANCH
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Report Page No. 32
<PAGE>
<TABLE>
<CAPTION>
LOAN ID: 321-0148-002 (CON'T) DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ASSIGMENT - STATE INTERIM #1 -NEW YORK SECRETARY OF STATE; UBS AG STAMFORD BRANCH
to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED ORIGINAL - INFO AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
- (RECORD AFTER SECURITIZATION)
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -COLUMBIA COUNTY, NEW YORK; to UBS AG STAMFORD
Document is UNRECORDED COPY. BRANCH
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY INTERIM #1 -COLUMBIA COUNTY, NEW YORK; UBS AG STAMFORD BRANCH
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
- (RECORD AFTER SECURITIZATION)
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0148-002 (1)
</TABLE>
Report Page No. 33
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0150-000 LOAN INFORMATION
----------------
LOAN ID: 321-0150-000
BORROWER: SOUTH BROADWAY WP, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 75 SOUTH BROADWAY NOTE AMOUNT: $7,100,000.00 Counsel: ORRICK HERRINGTON
CONTROL REF: 0038 CITY, ST.: WHITE PLAINS, NY NOTE DATE: 05/02/00 Misc. Info. #1: WESTCHESTER COUNTY
GROUP: C4 MATURITY: 05/11/30 Misc. Info. #2: 75 S. BROADWAY
1ST PMT: 06/11/00
Loan Memo: RE: UNDERLYING DOCS. -Underlying mortgage notes and allonges located in the file.
************************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT
Document is MISSING.
EXCEPTION -->RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
MODIFICATION OF MORTGAGE INSTRUMENT -AMENDED, RESTATED AND CONSOLIDATED MORTGAGE AND
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE. SECURITY AGREEMENT
EXCEPTION -->RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF LEASES & RENTS -SOUTH BROADWAY WP, LLC to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION -->RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -NEW YORK SECRETARY OF STATE; to UBS PRINCIPAL
FINANCE LLC Document is UNRECORDED COPY.
EXCEPTION -->RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
</TABLE>
Report Page No. 34
<PAGE>
<TABLE>
<CAPTION>
LOAN ID: 321-0150-000 (CON'T) DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ASSIGNMENT - STATE "TO BLANK" -NEW YORK SECRETARY OF STATE; UBS PRINCIPAL FINANCE
Document is MISSING. LLC to BLANK
EXCEPTION -->ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -WESTCHESTER COUNTY, NEW YORK; to UBS PRINCIPAL
Document is UNRECORDED COPY. FINANCE LLC
EXCEPTION -->RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY "TO BLANK" -WESTCHESTER COUNTY, NEW YORK; UBS PRINCIPAL FINANCE
Document is MISSING. LLC to BLANK
EXCEPTION -->ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0150-000 (1)
</TABLE>
Report Page No. 35
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS Print Date: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0152-000 LOAN INFORMATION
----------------
LOAN ID: 321-0152-000
BORROWER: KNUDSON HOUSING PARTNERS XXV, LTD.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: HIGH POINTE VILLAGE II NOTE AMOUNT: $2,000,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0121 CITY, ST.: CEDAR HILL, TX NOTE DATE: 05/08/00 Misc. Info. #1: DALLAS COUNTY
GROUP: C4 MATURITY: 05/11/10 Misc. Info. #2: HIGH POINTE
1ST PMT: 06/11/00
************************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ORIGINAL FILING - STATE -TEXAS SECRETARY OF STATE; to UBS PRINCIPAL FINANCE
LLC Document is UNRECORDED COPY.
EXCEPTION -->RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0152-000 (1)
</TABLE>
Report Page No. 36
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0153-000 LOAN INFORMATION
----------------
LOAN ID: 321-0153-000
BORROWER: FRANKLIN-KENNEWICK, L.L.C.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: KENNEWICK PLAZA NOTE AMOUNT: $5,800,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0056 CITY, ST.: BELLEVUE, WA NOTE DATE: 05/17/00 Misc. Info. #1: BENTON COUNTY
GROUP: C4 MATURITY: 06/11/30 Misc. Info. #2: KENNEWICK
1ST PMT: 07/11/00
************************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION -->ORIGINAL DOCUMENT REQUIRED
----------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0153-000 (1)
</TABLE>
Report Page No. 37
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0154-000 LOAN INFORMATION
----------------
LOAN ID: 321-0154-000
BORROWER: MONROE CENTER, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 720 MONROE STREET (C-308) NOTE AMOUNT: $5,300,000.00 Counsel: ORRICK HERRINGTON
CONTROL REF: 0060 CITY, ST.: HOBOKEN, NJ NOTE DATE: 05/17/00 Misc. Info. #1: HUDSON COUNTY
GROUP: C4 MATURITY: 06/11/25 Misc. Info. #2: 720 MONROE
1ST PMT: 07/11/00
************************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
MORTGAGE INSTRUMENT -MORTGAGE AND SECURITY AGREEMENT; to MSA CAPITAL LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE..
EXCEPTION -->RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION -->ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF LEASES & RENTS -MONROE CENTER, LLC to MSA CAPITAL LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE..
EXCEPTION -->RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -NEW JERSEY SECRETARY OF STATE; to MSA CAPITAL LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE..
EXCEPTION -->RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
Report Page No. 38
<PAGE>
LOAN ID: 321-0154-000 (CON'T) DOCUMENTS
---------
DOCUMENT - DOCUMENT MEMO ADDITIONAL DOCUMENT INFORMATION (IF ANY)
------------------------ ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -HUDSON COUNTY, NEW JERSEY; to MSA CAPITAL LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION -->RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
-------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0154-000 (1)
</TABLE>
Report Page No. 39
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0156-000 LOAN INFORMATION
----------------
LOAN ID: 321-0156-000
BORROWER: 162-21 JAMAICA, LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 162-21 JAMAICA AVENUE NOTE AMOUNT: $7,200,000.00 Counsel: ORRICK HERRINGTON
CONTROL REF: 0037 CITY, ST.: NEW YORK, NY NOTE DATE: 05/19/00 Misc. Info. #1: QUEENS COUNTY
GROUP: C4 MATURITY: 06/11/30 Misc. Info. #2: 162-21 JAMAICA
1ST PMT: 07/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT
--------
DOCUMENT CONDITION ADDITIONAL DOCUMENT INFORMATION (IF ANY)
------------------ ----------------------------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
MORTGAGE INSTRUMENT -AMENDED, RESTATED AND CONSOLIDATED MORTGAGE AND
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE. SECURITY AGREEMENT; to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF LEASES & RENTS -162-21 JAMAICA, LLC to UBS PRINCIPAL FINANCIAL LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -NEW YORK SECRETARY OF STATE; to
Document is UNRECORDED COPY. UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - STATE "TO BLANK" -NEW YORK SECRETARY OF STATE;
Document is MISSING UBS PRINCIPAL FINANCE LLC to BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -QUEENS COUNTY, NEW YORK;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Report Page no. 40
<PAGE>
<TABLE>
<CAPTION>
LOAN ID: 321-0156-000 (CON'T) DOCUMENTS
---------
DOCUMENT - DOCUMENT MEMO
------------------------
DOCUMENT CONDITION ADDITIONAL DOCUMENT INFORMATION (IF ANY)
------------------ ----------------------------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ASSIGNMENT - "COUNTY TO BLANK" -QUEENS COUNTY, NEW YORK;
Document is MISSING. UBS PRINCIPAL FINANCE LLC to BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
LETTER OF CREDIT #1 -LETTER OF CREDIT AGREEMENT
Document is ORIGINAL (RECORDING NOT REQUIRED).
EXCEPTION --> INCOMPLETE/MISSING SIGNATURES - (MISSING SIGNATURE OF UBS PRINCIPAL FINANCE LLC)
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0156-000 (1)
</TABLE>
Report Page No. 41
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0158-000 LOAN INFORMATION Report XRef#: 2
----------------
LOAN ID: 321-0158-000
BORROWER: HIGHGATE PLAZA INVESTORS, L.L.C.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: THUNDERBIRD PLAZA NOTE AMOUNT: $943,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0158 CITY, ST.: GLENDALE, AZ NOTE DATE: 05/30/00 Misc. Info. #1: MARICOPA COUNTY
GROUP: C4 MATURITY: 06/11/10 Misc. Info. #2: THUNDERBIRD
1ST PMT: 07/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -ARIZONA SECRETARY OF STATE;
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL ORE CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0158-000 (1)
</TABLE>
Report Page No. 42
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0162-000 LOAN INFORMATION
----------------
LOAN ID: 321-0162-000
BORROWER: OC32, LTD.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: OAK CREEK APARTMENTS NOTE AMOUNT: $500,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0166 CITY, ST.: BAYTOWN, TX NOTE DATE: 06/07/00 Misc. Info. #1: HARRIS COUNTY
GROUP: C4 MATURITY: 06/11/10 Misc. Info. #2: OAK CREEK
1ST PMT: 07/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
ENDORSEMENT TO PROMISSORY NOTE "TO BLANK" -UBS PRINCIPAL FINANCE LLC TO BLANK
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF MORTGAGE "TO BLANK" -UBS PRINCIPAL FINANCE LLC TO BLANK
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF ASSIGNMENT OF LEASES & RENTS "TO BLANK" -UBS PRINCIPAL FINANCE LLC TO BLANK
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - STATE "TO BLANK" -TEXAS SECRETARY OF STATE;
Document is MISSING. UBS PRINCIPAL FINANCE LLC TO BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY "TO BLANK" -HARRIS COUNTY, TEXAS;
Document is MISSING. UBS PRINCIPAL FINANCE LLC to BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -WICHITA COUNTY, TEXAS;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID:321-0162-000 (1)
</TABLE>
Report Page No. 43
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0166-000 LOAN INFORMATION
----------------
LOAN ID: 321-0166-000
BORROWER: AVALON MEADOWS LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: 2610 IOWA PARK DRIVE NOTE AMOUNT: $770,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0163 CITY, ST.: WITCHITA FALLS, TX NOTE DATE: 06/12/00 Misc. Info. #1: WITCHITA COUNTY
GROUP: C4 MATURITY: 07/11/10 Misc. Info. #2: 2610 IOWA PAR
1ST PMT: 08/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY - WITCHITA COUNTY, TEXAS;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0166-000 (1)
</TABLE>
Report Page No. 44
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR Loan ID: 321-0169-000 LOAN INFORMATION
----------------
LOAN ID: 321-0167-000
BORROWER: PITTSBURGH PREFERRED PROPERTIES.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: POPLAR APARTMENTS NOTE AMOUNT: $2,425,000.00 Counsel: KRONISH LIEB WEINER
CONTROL REF: 0108 CITY, ST.: PITTSBURGH, PA NOTE DATE: 06/16/00 Misc. Info. #1: ALLEGHENY COUNTY
GROUP: C4 MATURITY: 07/11/10 Misc. Info. #2: POPLAR APARTM
1ST PMT: 08/11/00
********************************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT -MORTGAGE, SECURITY AGREEMENT, FIXTURE FINANCING
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE. STATEMENT AND ASSIGNMENT OF LEASES AND RENTS; to UBS
PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -PENNSYLVANIA SECRETARY OF STATE; to UBS PRINCIPAL
Document is UNRECORDED COPY. FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -ALLEGHNEY COUNTY, PENNSYLVANIA;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - ADDITIONAL #1 -PROTHONOTARY OF ALLEGHENY COUNTY, PENNSYLVANIA;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
--------------------------------------------------------------------------
END RECORD FOR Loan ID:321-0169-000 (1)
</TABLE>
Report Page No. 45
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 5/17/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR Loan ID: 321-0169-000 LOAN INFORMATION
----------------
LOAN ID: 321-0169-000
BORROWER: NIN X, L.C.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
PROPERTY: NINIGRET NOTE AMOUNT: $12,000,000.00 Counsel: SCHULTE ROTH
CONTROL REF: 0017 CITY, ST.: SALT LAKE CITY, UT NOTE DATE: 06/28/00 Misc. Info. #1: SALT LAKE COUNTY
GROUP: C4 MATURITY: 07/11/30 Misc. Info. #2: NINGRET
1ST PMT: 08/11/00
--------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - ADDITIONAL #1 -NEW YORK SECRETARY OF STATE; to UBS PRINCIPAL
Document is UNRECORDED COPY. FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID:321-0169-000 (1)
</TABLE>
Report Page No. 46
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR Loan ID: 321-0170-000 LOAN INFORMATION
----------------
LOAN ID: 321-0170-000
BORROWER: 3201 L.L.C.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
PROPERTY: GLENVIEW OFFICE BUILDING NOTE AMOUNT: $5,017,000.00 Counsel: WINSTON & STRAWN
CONTROL REF: 0062 CITY, ST.: WILMETTE, IL NOTE DATE: 06/26/00 Misc. Info. #1: COOK COUNTY
GROUP: C4 MATURITY: 07/11/30 Misc. Info. #2: 3201 OLD GLEN
1ST PMT: 08/11/00
----------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO BLANK" -UBS PRINCIPAL FINANCE LLC TO BLANK
Document is COPY - RECORDATION NOT REQUIRED.
EXCEPTION --> INCOMPLETE/MISSING SIGNATURES
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF MORTGAGE "TO BLANK" -ASSIGNMENT OF MORTGAGE AND SECURITY AGREEMENT; UBS
Document is UNRECORDED COPY. PRINCIPAL FINANCE LLC TO BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
EXCEPTION --> INCOMPLETE/MISSING SIGNATURES
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
PROFORMA TITLE COMMITMENT
Document is COPY - RECORDATION NOT REQUIRED.
EXCEPTION --> INCORRECT INSURANCE AMOUNTS
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF ASSIGNMENT OF LEASES & RENTS "TO BLANK" -ASSIGNMENT OF ASSIGNMENT OF LEASES AND RENTS; UBS
Document is UNRECORDED COPY. PRINCIPAL FINANCE LLC TO BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
EXCEPTION --> INCOMPLETE/MISSING SIGNATURES
</TABLE>
Report Page No. 47
<PAGE>
<TABLE>
<CAPTION>
LOAN ID: 321-0170-000 (CON'T) DOCUMENTS
---------
DOCUMENT - DOCUMENT MEMO
------------------------
DOCUMENT CONDITION ADDITIONAL DOCUMENT INFORMATION (IF ANY)
------------------ ----------------------------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ORIGINAL FILING - STATE -ILLINOIS SECRETARY OF STATE; to UBS PRINCIPAL FINANCE
Document is UNRECORDED COPY. LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE "TO BLANK" -ILLINOIS SECRETARY OF STATE; to UBS PRINCIPAL FINANCE
Document is MISSING. LLC to BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -COOK COUNTY, ILLINOIS; toUBS PRINCIPAL FINANCE LLC
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ASSIGNMENT - COUNTY "TO BLANK" -COOK COUNTY, ILLINOIS; UBS PRINCIPAL FINANCE LLC to
DOCUMENT IS MISSING. BLANK
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
--------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0170-000 (1)
</TABLE>
Report Page No. 48
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0171-000 LOAN INFORMATION
----------------
LOAN ID: 321-0171-000
BORROWER: SHEENA ASSOCIATES LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
CONTROL REF: 0126 PROPERTY: 8716 ASTORIA BOULEVARD NOTE AMOUNT: $1,898,000.00 Counsel: KRONISH LIEB WEINER
GROUP: C4 CITY, ST.: QUEENS, NY NOTE DATE: 06/27/00 Misc. Info. #1: QUEENS COUNTY
MATURITY: 07/11/10 Misc. Info. #2: 8716 ASTORIA
1ST PMT: 08/11/00
Loan Memo: RE: Original Documents - Original underlying documents located in the file.
***************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT -AMENDED, RESTATED AND CONSOLIDATED MORTGAGE,
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE. SECURITY AGREEMENT, FIXTURE FINANCING STATEMENT AND
ASSIGNMENT OF LEASES AND RENTS; to UBS PRINCIPAL
FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
GAP MORTGAGE INSTRUMENT -to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1 Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -NEW YORK SECRETARY OF STATE;
Document is UNRECORDED COPY. UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -QUEENS COUNTY, NEW YORK;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0171-000 (1)
</TABLE>
Report Page No. 49
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0172-000 LOAN INFORMATION
----------------
LOAN ID: 321-0172-000
BORROWER: 404 FIFTH LLC
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
CONTROL REF: 0008 PROPERTY: 404 FIFTH AVENUE NOTE AMOUNT: $18,200,000.00 Counsel: SCHULTE ROTH
GROUP: C4 CITY, ST.: NEW YORK, NY NOTE DATE: 06/23/00 Misc. Info. #1: NEW YORK COUNTY
MATURITY: 07/11/30 Misc. Info. #2: 404 FIFTH AVE
1ST PMT: 08/11/00
Loan Memo: RE: ORIGINAL DOCUMENTS - ORIGINAL UNDERLYING DOCUMENTS LOCATED IN THE FILE.
***************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
UCC ORIGINAL FILING - STATE -NEW YORK SECRETARY OF STATE;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -NEW YORK COUNTY, NEW YORK;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0172-000 (1)
Report Page No. 50
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0190-000 LOAN INFORMATION
----------------
LOAN ID: 321-0190-000
BORROWER: PRG/GLENWOOD, L.P.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
CONTROL REF: 0059 PROPERTY: ARTHUR'S COURT APARTMENTS NOTE AMOUNT: $5,319,000.00 Counsel: COLE SCHOTZ MEISEL FORMAN
GROUP: C4 CITY, ST.: DECATUR, GA NOTE DATE: 06/08/00 Misc. Info. #1: DEKALB COUNTY
MATURITY: 06/11/10 Misc. Info. #2: ARTHUR'S COURT
1ST PMT: 07/11/00
Loan Memo: RE: Original Documents - Original underlying documents located in the file.
***************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT -DEED TO SECURE DEBT AND SECURITY AGREEMENT;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF LEASES & RENTS -PRG/GLENWOOD, L.P. to UBS PRINCIPAL FINANCE LLC
Document is UNRECORDED COPY.
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -GEORGIA SECRETARY OF STATE;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -DEKALB COUNTY, GEORGIA;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0190-000 (1)
</TABLE>
Report Page No. 51
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTODIAN'S REPORT OF
ISSUER/POOL: 1011/425 COLLATERAL DOCUMENTS PRINT DATE: 09/25/00
POOL NAME: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
BEGIN RECORD FOR LOAN ID: 321-0138-000 LOAN INFORMATION
----------------
LOAN ID: 321-0138-000
BORROWER: JOANNA COURT REALTY, INC.
<CAPTION>
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
<S> <C> <C> <C>
CONTROL REF: 0053 PROPERTY: 6 JOANNA COURT NOTE AMOUNT: $6,000,000.00 Counsel: ORRICK HERRINGTON
GROUP: C4 CITY, ST.: JERSEY CITY, NJ NOTE DATE: 04/11/00 Misc. Info. #1: MIDDLESEX COUNTY
MATURITY: 04/11/30 Misc. Info. #2: JOANNA COURT
1ST PMT: 05/11/00
***************************************
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MORTGAGE INSTRUMENT -MORTGAGE AND SECURITY AGREEMENT
Document is UNRECORDED ORIGINAL - INFO NOT AVAILABLE
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
TITLE POLICY #1
Document is MISSING.
EXCEPTION --> ORIGINAL DOCUMENT REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT OF LEASES & RENTS -JOANNA COURT REALTY, INC. to UBS PRINCIPAL
Document is UNRECORDED COPY. FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - STATE -NEW JERSEY SECRETARY OF STATE;
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
UCC ORIGINAL FILING - COUNTY -MIDDLESEX COUNTY, NJ
Document is UNRECORDED COPY. to UBS PRINCIPAL FINANCE LLC
EXCEPTION --> RECORDED ORIGINAL OR CLERK CERTIFIED COPY REQUIRED
------------------------------------------------------------------------------------------------------------------------------------
END RECORD FOR Loan ID: 321-0138-000 (1)
</TABLE>
Report Page No. 52
<PAGE>
SCHEDULE III
EXCEPTIONS TO REPRESENTATIONS
AND WARRANTIES OF THE DEPOSITOR
<PAGE>
SCHEDULE III-XI
<TABLE>
<CAPTION>
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
--------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
90 Fall Lake Apartments* 1415 Greens Parkway Houston TX 3,264,397.29 990125058
--------------------------------------------------------------------------------------------------------------------------
</TABLE>
* On August 3, 2000, the property suffered fire damage to one (1) of the 124
units at the property.
<PAGE>
SCHEDULE III-XX
<TABLE>
<CAPTION>
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
11 Westfield Shops 415-475 East Main Street Westfield MA 15,256,574.95 990303002
------------------------------------------------------------------------------------------------------------------------------------
19 Remington Apartments 10610 North 30th Street Tampa FL 11,247,030.03 990511006
------------------------------------------------------------------------------------------------------------------------------------
25 Whispering Winds 2902 Whispering Winds Drive Pearland TX 9,537,265.50 990720013
------------------------------------------------------------------------------------------------------------------------------------
29 Northpointe Apartments 296 Muellers Circle Statesville NC 8,443,261.34 990426007
------------------------------------------------------------------------------------------------------------------------------------
32 Cap Senior - Atrium of Carmichael 5757 Cypress Avenue Carmichael CA 7,761,450.34 990719008
------------------------------------------------------------------------------------------------------------------------------------
33 Greenwood Pointe Shopping Center 8014 U.S. 31 Indianapolis IN 7,605,911.66 990427021
------------------------------------------------------------------------------------------------------------------------------------
63 Cal-Ray Medical Building 55 E. California Boulevard Pasadena CA 4,998,113.83 990614006
------------------------------------------------------------------------------------------------------------------------------------
90 Fall Lake Apartments 1415 Greens Parkway Houston TX 3,264,397.29 990125058
------------------------------------------------------------------------------------------------------------------------------------
97 Pueblos of Scottsdale 8155 East Roosevelt Street Scottsdale AZ 2,978,383.98 990528006
------------------------------------------------------------------------------------------------------------------------------------
105 Burke Square Apartments 1141 Burke Road Pasadena TX 2,483,706.31 990709007
------------------------------------------------------------------------------------------------------------------------------------
111 Galleria Plaza 2720 East Plaza Boulevard National City CA 2,387,269.37 990115001
------------------------------------------------------------------------------------------------------------------------------------
113 Foothill 12800 Foothill Boulevard Sylmar CA 2,346,060.39 990326014
------------------------------------------------------------------------------------------------------------------------------------
119 Copeland Plaza 1400 East Copeland Road Arlington TX 2,111,637.21 990412004
------------------------------------------------------------------------------------------------------------------------------------
132 Forest Hills Apartments 2404 SE 5th Circle Ocala FL 1,786,370.01 990420003
------------------------------------------------------------------------------------------------------------------------------------
140 Patton Plaza 6440 West Hamilton Park Drive Columbus GA 1,546,459.75 990520007
------------------------------------------------------------------------------------------------------------------------------------
146 Full Sail Live 3535 Forsyth Avenue Winter Park FL 1,386,415.04 990126015
------------------------------------------------------------------------------------------------------------------------------------
152 Edwards Estates 14428 Cerise Avenue Hawthorne CA 1,169,078.72 990413006
------------------------------------------------------------------------------------------------------------------------------------
155 Broadway Industrial Park 2745 Broadway Street Cheektowaga NY 1,039,749.28 990125005
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III-XXVI
<TABLE>
<CAPTION>
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
7 Hillcrest Promenade Southeast corner of Beverwil Los Angeles CA 22,000,000.00 000223004
Drive and Pico Boulevard
------------------------------------------------------------------------------------------------------------------------------------
83 Cactus Gardens 10657 S. Avenue 9E Yuma AZ 3,479,747.18 001444001
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE III-XXXIV
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
22 Bluff's Square Shoppes 4090-4300 U.S. Highway 1 Jupiter FL 10,312,039.47 000120001
------------------------------------------------------------------------------------------------------------------------------------
23 Kirkman Shoppes 4792 South Kirkman Road Orlando FL 9,737,761.27 000120002
------------------------------------------------------------------------------------------------------------------------------------
43 Ross Plaza 8404 West Hillsborough Avenue Tampa FL 6,791,464.26 000120003
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE III-XLII
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
11 Westfield Shops 415-475 East Main Street Westfield MA 15,256,574.95 990303002
------------------------------------------------------------------------------------------------------------------------------------
25 Whispering Winds 2902 Whispering Winds Drive Pearland TX 9,537,265.50 990720013
------------------------------------------------------------------------------------------------------------------------------------
29 Northpointe Apartments 296 Muellers Circle Statesville NC 8,443,261.34 990426007
------------------------------------------------------------------------------------------------------------------------------------
32 Cap Senior - Atrium of Carmichael 5757 Cypress Avenue Carmichael CA 7,761,450.34 990719008
------------------------------------------------------------------------------------------------------------------------------------
33 Greenwood Pointe Shopping Center 8014 U.S. 31 Indianapolis IN 7,605,911.66 990427021
------------------------------------------------------------------------------------------------------------------------------------
63 Cal-Ray Medical Building 55 E. California Boulevard Pasadena CA 4,998,113.83 990614006
------------------------------------------------------------------------------------------------------------------------------------
90 Fall Lake Apartments 1415 Greens Parkway Houston TX 3,264,397.29 990125058
------------------------------------------------------------------------------------------------------------------------------------
97 Pueblos of Scottsdale 8155 East Roosevelt Street Scottsdale AZ 2,978,383.98 990528006
------------------------------------------------------------------------------------------------------------------------------------
105 Burke Square Apartments 1141 Burke Road Pasadena TX 2,483,706.31 990709007
------------------------------------------------------------------------------------------------------------------------------------
111 Galleria Plaza 2720 East Plaza Boulevard National City CA 2,387,269.37 990115001
------------------------------------------------------------------------------------------------------------------------------------
113 Foothill 12800 Foothill Boulevard Sylmar CA 2,346,060.39 990326014
------------------------------------------------------------------------------------------------------------------------------------
119 Copeland Plaza 1400 East Copeland Road Arlington TX 2,111,637.21 990412004
------------------------------------------------------------------------------------------------------------------------------------
132 Forest Hills Apartments 2404 SE 5th Circle Ocala FL 1,786,370.01 990420003
------------------------------------------------------------------------------------------------------------------------------------
140 Patton Plaza 6440 West Hamilton Park Drive Columbus GA 1,546,459.75 990520007
------------------------------------------------------------------------------------------------------------------------------------
152 Edwards Estates 14428 Cerise Avenue Hawthorne CA 1,169,078.72 990413006
------------------------------------------------------------------------------------------------------------------------------------
155 Broadway Industrial Park 2745 Broadway Street Cheektowaga NY 1,039,749.28 990125005
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III-XLIV
No Exceptions
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE III-XLVI
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
10 Pike Shopping Center 12101 Rockville Pike Rockville MD 15,560,265.69 000105010
------------------------------------------------------------------------------------------------------------------------------------
111 Galleria Plaza * 2720 East Plaza Boulevard National City CA 2,387,269.37 990115001
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* With respect to Galleria Plaza, such Mortgage Loan is secured in part by a
leasehold interest on a material portion of the parking lot.
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE III-XLIX
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
123 Pinewood Estates MHP 200 Cedar Lane Barnegat NJ 1,982,430.66 001444004
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III-L
<TABLE>
<CAPTION>
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
2 Johnson City Mall* SWC of N. Roan Street and Sunset Drive Johnson City TN 40,942,051.03 991214001
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* With respect to Johnson City Mall, in the event Proffitt's exercises their
right to request a second story addition, the borrower may request the release
the Proffitt's store from the collateral and partially defease (at 100%) the
loan.
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE III-LVI(G)
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
122 CVS - Logansport 717 N. Third Street Logansport IN 1,991,914.56 000203010
------------------------------------------------------------------------------------------------------------------------------------
149 CVS - Arbor 13600 E. Seven Mile Road Detriot MI 1,279,744.70 990928008
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III-LVI(H)
<TABLE>
<CAPTION>
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
84 Walgreens - Madison Heights 26800 John R. Road Madison Heights MI 3,412,391.89 990929005
------------------------------------------------------------------------------------------------------------------------------------
149 CVS - Arbor 13600 E. Seven Mile Road Detriot MI 1,279,744.70 990928008
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III-LVI(I)
<TABLE>
<CAPTION>
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
76 CVS - Springfield 795 Baltimore Pike Springfield Township PA 4,297,077.13 000204004
------------------------------------------------------------------------------------------------------------------------------------
120 CVS - Tucker 2586 Lawrenceville Highway Tucker GA 2,045,510.63 000418002
------------------------------------------------------------------------------------------------------------------------------------
122 CVS - Logansport 717 N. Third Street Logansport IN 1,991,914.56 000203010
------------------------------------------------------------------------------------------------------------------------------------
149 CVS - Arbor 13600 E. Seven Mile Road Detriot MI 1,279,744.70 990928008
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III-LVI(U)
<TABLE>
<CAPTION>
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
76 CVS - Springfield 795 Baltimore Pike Springfield Township PA 4,297,077.13 000204004
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III-LVI(V)
<TABLE>
<CAPTION>
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
147 Mobil Bronx 1106 Metcalf Avenue Bronx NY 1,351,232.06 990921003
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III-LVII
<TABLE>
<CAPTION>
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
7 Hillcrest Promenade Southeast corner of Beverwil Los Angeles CA 22,000,000.00 000223004
Drive and Pico Boulevard
------------------------------------------------------------------------------------------------------------------------------------
10 Pike Shopping Center 12101 Rockville Pike Rockville MD 15,560,265.69 000105010
------------------------------------------------------------------------------------------------------------------------------------
11 Westfield Shops 415-475 East Main Street Westfield MA 15,256,574.95 990303002
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III-LVIII
<TABLE>
<CAPTION>
MORTGAGE
LOAN CUT-OFF DATE MORTGAGE LOAN LOCK BOX
NUMBER PROPERTY NAME ADDRESS CITY STATE BALANCE SELLER LOAN ID TYPE
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
2 Johnson City Mall SWC of N. Roan Street and Johnson City TN 40,942,051.03 991214001 Hard
Sunset Drive
-----------------------------------------------------------------------------------------------------------------------------------
13 Sully Plaza Lee Jackson Memorial Highway & Chantilly VA 13,744,362.05 990920003 Hard
Centreville Road
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III-LX
No Exceptions
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 AND CLASS A-2 CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C4
CLASS [A-1] [A-2] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2000-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: ___% Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: September 11, 2000
Cut-off Date: September 11, 2000 Class Principal Balance of all the Class [A-1] [A-2]
Certificates as of the Closing Date: $____________
Closing Date: September 28, 2000
Aggregate unpaid principal balance of the Mortgage
First Distribution Date: October 17, 2000 Pool as of the Cut-off Date, after deducting payments
Master Servicer: of principal due on or before such date (the "Initial
ORIX Real Estate Capital Markets LLC Pool Balance"): $999,060,409
Special Servicer:
ORIX Real Estate Capital Markets LLC Fiscal Agent:
ABN AMRO Bank N.V.
Trustee:
LaSalle Bank National Association
Certificate No. ___ CUSIP No. _____________
</TABLE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, ORIX REAL ESTATE CAPITAL MARKETS LLC, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Closing Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation as depositor (the "Depositor", which
term includes any successor entity under the Agreement), ORIX Real Estate
Capital Markets LLC as master servicer (in such capacity, the "Master Servicer",
which term includes any successor entity under the Agreement) and special
servicer (in such capacity, 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 Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of
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.
The Holder of this Certificate, by its acceptance hereof, shall be deemed
to have agreed to keep confidential any information it obtains from the Trustee
(except that any such Holder may provide any such information obtained by it to
any other Person that holds or is contemplating the purchase of this Certificate
or any interest herein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential).
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 2/3% of the Voting Rights allocated to each of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. In addition, the Agreement permits the amendment thereof, in
certain circumstances, with rating confirmation of the ratings on the rated
Classes of Certificates and the consent of the Holders of the unrated Classes of
Certificates. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status
4
<PAGE>
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 [A-1][A-2] 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 __________________________________________
__________________________ 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-C4
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Variable Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: September 11, 2000
Cut-off Date: September 11, 2000 Class Notional Amount of all the Class X Certificates
as of the Closing Date:
Closing Date: September 28, 2000 $_____________
First Distribution Date: Aggregate unpaid principal balance of the Mortgage
October 17, 2000 Pool as of the Cut-off Date, after deducting payments
of principal due on or before such date (the "Initial
Master Servicer: Pool Balance"): $999,060,409
ORIX Real Estate Capital Markets LLC
Special Servicer:
ORIX Real Estate Capital Markets LLC
Fiscal Agent:
Trustee: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No. ___ CUSIP No.___________________
</TABLE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE 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, ORIX REAL ESTATE CAPITAL MARKETS LLC, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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.
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<PAGE>
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional
principal amount of this Certificate (its "Certificate Notional Amount") as of
the Closing Date by the aggregate notional principal amount of all the
Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Closing Date) in that certain beneficial ownership interest
in the Trust evidenced by all the Certificates of the same Class as this
Certificate. The Trust was created and the Certificates were issued pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among Structured Asset Securities Corporation as depositor (the "Depositor",
which term includes any successor entity under the Agreement), ORIX Real Estate
Capital Markets LLC as master servicer (in such capacity, the "Master Servicer",
which term includes any successor entity under the Agreement), and special
servicer (in such capacity, 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 Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
3
<PAGE>
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is 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") 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 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
4
<PAGE>
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 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, if this Certificate or an
interest therein is being acquired by or on behalf of a Plan in reliance on any
of Prohibited Transaction Exemption 91-14, Prohibited Transaction Exemption
91-21 and Prohibited Transaction Exemption 97-34, a certification to the effect
that such Plan (X) is an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, (Y) is not sponsored (within the meaning of
Section 3(16)((B) of ERISA) by the Trustee, the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Sub-Servicer, any
Exemption-Favored Party or any Mortgagor with respect to Mortgage Loans
constituting more than 5% of the aggregate unamortized principal balance of all
the Mortgage Loans determined as of the Closing Date, or by any Affiliate of
such Person, and (Z) agrees that it will obtain from each of its Transferees
that are Plans a written representation that such Transferee, if a Plan,
satisfies the requirements of the immediately preceding clauses (X) and (Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (X) and
(Y). 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 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.
5
<PAGE>
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be deemed
to have agreed to keep confidential any information it obtains from the Trustee
(except that any such Holder may provide any such information obtained by it to
any other Person that holds or is contemplating the purchase of this Certificate
or any interest herein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential).
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 2/3% of the Voting Rights allocated to each of the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. In addition, the Agreement permits the amendment thereof, in
certain circumstances, with rating confirmation of the ratings on the rated
Classes of Certificates and the consent of the Holders of the unrated Classes of
Certificates. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I, REMIC II or REMIC III as a REMIC, without the consent of the Holders of any
of the Certificates.
6
<PAGE>
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust (to the extent of its rights therein) for distributions
hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, without applying any conflicts of laws principles of such state (other
than the provisions of Section 5-1401 of the New York General Obligations Law),
and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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 X Certificates referred to in the within-mentioned
Agreement.
Dated: _________, ____
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-----------------------------------
Authorized Officer
8
<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.
9
<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-C4
CLASS [B][C][D][E][F][G] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2000-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: ____% Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Date of Pooling and Servicing $_______________
Agreement: September 11, 2000
Cut-off Date: September 11, 2000 Class Principal Balance of all the Class
[B][C][D][E][F][G] Certificates as of the Closing
Closing Date: September 28, 2000 Date: $____________
First Distribution Date: Aggregate unpaid principal balance of the Mortgage
October 17, 2000 Pool as of the Cut-off Date, after deducting payments
of principal due on or before such date (the "Initial
Master Servicer: Pool Balance"): $_____________________
ORIX Real Estate Capital Markets LLC
Special Servicer:
ORIX Real Estate Capital Markets LLC
Fiscal Agent:
Trustee: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No. ___ CUSIP No. _____________
</TABLE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, ORIX REAL ESTATE CAPITAL MARKETS LLC, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE 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
2
<PAGE>
Corporation as depositor (the "Depositor", which term includes any successor
entity under the Agreement), ORIX Real Estate Capital Markets LLC as master
servicer (in such capacity, the "Master Servicer", which term includes any
successor entity under the Agreement) and special servicer (in such capacity,
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 pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain
3
<PAGE>
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.
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.
The Holder of this Certificate, by its acceptance hereof, shall be deemed
to have agreed to keep confidential any information it obtains from the Trustee
(except that any such Holder may provide any such information obtained by it to
any other Person that holds or is contemplating the purchase of this Certificate
or any interest herein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential).
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.
4
<PAGE>
The Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust, and (ii) the purchase by the
Depositor, Lehman Brothers Inc., the Master Servicer, the Special Servicer or
any Controlling Class Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust.
The Agreement permits, but does not require, the Depositor, Lehman Brothers
Inc., the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to each of the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. In addition, the Agreement permits the amendment thereof, in
certain circumstances, with rating confirmation of the ratings on the rated
Classes of Certificates and the consent of the Holders of the unrated Classes of
Certificates. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I, REMIC II or REMIC III as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust (to the extent of its rights therein) for distributions
hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, without applying any conflicts of laws principles of such state (other
than the provisions of Section 5-1401 of the New York General Obligations Law),
and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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 [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
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-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-C4
CLASS [H] [J] [K] [L] [M] [N] [P] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: ____% Initial Certificate Principal Balance of this Certificate
as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: September 11, 2000
Cut-off Date: September 11, 2000 Class Principal Balance of all the Class [H] [J] [K] [L]
[M] [N] [P] Certificates as of the Closing Date:
Closing Date: September 28, 2000 $____________
First Distribution Date: Aggregate unpaid principal balance of the Mortgage Pool
October 17, 2000 as of the Cut-off Date, after deducting payments of
principal due on or before such date (the "Initial Pool
Master Servicer: Balance"):
ORIX Real Estate Capital Markets LLC $___________________
Special Servicer:
ORIX Real Estate Capital Markets LLC Fiscal Agent:
ABN AMRO Bank N.V.
Trustee:
LaSalle Bank National Association
Certificate No. ___ CUSIP No. ____________
</TABLE>
<PAGE>
[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, ORIX REAL ESTATE CAPITAL MARKETS LLC, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
2
<PAGE>
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE: PRIOR TO THE DATE THAT IS
40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER 28, 2000 (THE "RELEASE DATE"), THIS CERTIFICATE
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES
OR TO A U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.]
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), ORIX Real Estate
Capital Markets LLC as master servicer (in such capacity, the "Master Servicer",
which term includes any successor entity under the Agreement) and special
servicer (in such capacity, 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
3
<PAGE>
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer, 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") 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 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
4
<PAGE>
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 related to a Rule
144A/IAI Global 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. Any interest in a Rule
144A/IAI Global Certificate may not be transferred to any Person who takes
delivery other than in the form of an interest in such Rule 144A/IAI Global
Certificate. 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.
[FOR REGULATION S GLOBAL CERTIFICATES IN RESPECT OF THE CLASS H
CERTIFICATES ONLY. Notwithstanding the preceding paragraph, any interest in a
Rule 144A/IAI Global Certificate may be transferred (without delivery of any
certificate or Opinion of Counsel described in clauses (i) and (ii) of the
preceding paragraph) by the Depositor or any Affiliate of the Depositor to any
Person who takes delivery in the form of a beneficial interest in the Regulation
S Global Certificate of the same Class as such Rule 144A/IAI Global Certificate
upon delivery to the Certificate Registrar of (x) a certificate to the effect
that the Certificate Owner desiring to effect such transfer is the Depositor or
an Affiliate of the Depositor and (y) such written orders and instructions as
are required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in the related Rule 144A/IAI Global Certificate,
and credit the account of a Depository Participant by a denomination of
interests in the related Regulation S Temporary Certificate (if the transfer
occurs on or prior to the Release Date or a denomination of interests in the
related the Regulation S Permanent Global Certificate (if the transfer occurs
after the Release Date), that (in each case) is equal to the denomination of
beneficial interests in such Class to be transferred. Upon delivery to the
Certificate Registrar of such certification and orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, will reduce the denomination of the related
5
<PAGE>
Rule 144A/IAI Global Certificate, and increase the denomination of the related
Regulation S Temporary Certificate (if the transfer occurs on or prior to the
Release Date) or the denomination of the related Regulation S Permanent Global
Certificate (if the transfer occurs after the Release Date), by the denomination
of the beneficial interest in such Class specified in such orders and
instructions.
If this Certificate constitutes a Regulation S Temporary Certificate, then,
on and prior to the Release Date, beneficial interests in this Certificate may
not be transferred to any Person who takes delivery other than in the form of a
beneficial interest in this Certificate, and the Certificate Owner desiring to
effect such transfer will be required to obtain from such Certificate Owner's
prospective Transferee a Regulation S Certificate. Not earlier than the Release
Date, beneficial interests in any Regulation S Temporary Global Certificate will
be exchangeable for beneficial interests in the Regulation S Permanent Global
Certificate for such Class. Beneficial interests in any Regulation S Temporary
Global Certificate may be held only through Euroclear or Clearstream. The
Regulation S Permanent Global Certificates will be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository.]
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 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 related to a Rule 144A/IAI Global 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
<PAGE>
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.]
The Holder of this Certificate, by its acceptance hereof, shall be deemed
to have agreed to keep confidential any information it obtains from the Trustee
(except that any such Holder may provide any such information obtained by it to
any other Person that holds or is contemplating the purchase of this Certificate
or any interest herein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential).
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
7
<PAGE>
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66 2/3>% of the Voting Rights allocated to
each of the affected Classes. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. In addition, the Agreement permits the amendment
thereof, in certain circumstances, with rating confirmation of the ratings on
the rated Classes of Certificates and the consent of the Holders of the unrated
Classes of Certificates. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust (to the extent of its rights therein) for distributions
hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, without applying any conflicts of laws principles of such state (other
than the provisions of Section 5-1401 of the New York General Obligations Law),
and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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 [H] [J] [K] [L] [M] [N] [P] Certificates referred
to in the within-mentioned Agreement.
Dated: _______, ____
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
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 A-5
FORM OF CLASS R-I, CLASS R-II AND CLASS R-III CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C4
CLASS [R-I][R-II][R-III] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
<TABLE>
<CAPTION>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced by this Certificate
Agreement: September 11, 2000 in the related Class: ___%
Cut-off Date: September 11, 2000
Closing Date: September 28, 2000 Aggregate unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting
First Distribution Date: payments of principal due on or before such date
October 17, 2000 (the "Initial Pool Balance"): $__________________
Master Servicer:
ORIX Real Estate Capital Markets LLC
Special Servicer:
ORIX Real Estate Capital Markets LLC
Fiscal Agent:
Trustee: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No. __
</TABLE>
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, ORIX REAL ESTATE CAPITAL MARKETS LLC, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that __________________________________________________ is
the registered owner of the Percentage Interest evidenced by this Certificate
(as specified above) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation as depositor (the "Depositor", which
term includes any successor entity under the
2
<PAGE>
Agreement), ORIX Real Estate Capital Markets LLC as master servicer (in such
capacity, the "Master Servicer", which term includes any successor entity under
the Agreement) and special servicer (in such capacity, 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 Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
3
<PAGE>
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")
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 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, the Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject transfer, true and correct. None of the Depositor, the
Trustee or the Certificate Registrar is obligated to register or qualify the
Class of Certificates to which this Certificate belongs, under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of this Certificate or any interest
herein without registration or qualification. Any Certificateholder desiring to
effect a transfer sale, pledge or other disposition of this Certificate or any
interest herein shall, and does hereby agree to, indemnify the Depositor, the
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 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
4
<PAGE>
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 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.
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.
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
5
<PAGE>
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 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.
6
<PAGE>
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be deemed
to have agreed to keep confidential any information it obtains from the Trustee
(except that any such Holder may provide any such information obtained by it to
any other Person that holds or is contemplating the purchase of this Certificate
or any interest herein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential).
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 2/3% of the Voting Rights allocated to each of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. In addition, the Agreement permits the amendment thereof, in
certain circumstances, with rating confirmation of the ratings on the rated
Classes of Certificates and the consent of the Holders of the unrated Classes of
Certificates. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I, REMIC II or REMIC III as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
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>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
135 S. LaSalle Street Suite 1625 COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
Chicago, IL 60603 SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
ABN AMRO Acct: XX-XXXX-XX-X
Administrator: Analyst:
Barbara Marik 312-904-7323 REPORTING PACKAGE TABLE OF CONTENTS Thomas Helms 714-282-3980 (203)
[email protected] [email protected]
===================================================================================================================================
Page(s)
Issue Id: SASC00C4 REMIC Certificate Report Closing Date:
ASAP #: Bond Interest Reconciliation First Payment Date: 10/17/2000
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: Structured Asset Securities Corporation
UNDERWRITER: Lehman Brothers Inc., UBS Warburg LLC, and Deutsche.Bank Securities Inc.
MASTER SERVICER: ORIX Real Estate Capital Markets, LLC.
SPECIAL SERVICER: ORIX Real Estate Capital Markets, LLC.
RATING AGENCY: Moody's / Standard & Poors
----------------------------------------------------------------------
INFORMATION IS AVAILABLE FOR THIS ISSUE FROM THE FOLLOWING SOURCES
LaSalle Web Site www.lnbabs.com
LaSalle Bulletin Board (714) 282-3990
LaSalle "ASAP" Fax Back System (714) 282-5518d
LaSalle Factor Line (800) 246-5761
======================================================================
</TABLE>
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
ABN AMRO Acct: XX-XXXX-XX-X
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
ORIGINAL OPENING PRINCIPAL PRINCIPAL NEGATIVE CLOSING INTEREST INTEREST PASS-THROUGH
CLASS FACE VALUE (1) BALANCE PAYMENT ADJ. OR LOSS AMORTIZATION BALANCE PAYMENT ADJUSTMENT RATE (2)
CUSIP Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Next Rate (3)
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
===================================================================================================================================
===================================================================================================================================
Total P&I Payment 0.00
=============================
</TABLE>
Notes: (1) N denotes notional balance not included in total (2) Interest Paid
minus Interest Adjustment minus Deferred Interest equals Accrual (3) Estimated
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
ABN AMRO Acct: XX-XXXX-XX-X
</TABLE>
Bond Interest Reconciliation
<TABLE>
<CAPTION>
Deductions Additions
---------------------------------------- -------------------------------
Accrued Add. Deferred & Prior Prepay- Other Distributable Interest
Accrual Certificate Allocable Trust Accretion Interest Int. Short- ment Interest Certificate Payment
Class Method Days Interest PPIS Expense(1) Interest Losses falls Due Penalties Proceeds(2) Interest Amount
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <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 0.00 0.00
================================= =================================================================================================
<CAPTION>
Remaining
Outstanding Crdit Support
Interest -------------------
Shortfalls Original Current(3)
------------ ---------------------
<C> <C> <C>
-----------
===========
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).
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A. 10/06/2000 - 15:06
(MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
ABN AMRO Acct: XX-XXXX-XX-X
CASH RECONCILIATION SUMMARY
====================================================================================================================================
<S> <C> <C>
INTEREST SUMMARY SERVICING FEE SUMMARY PRINCIPAL SUMMARY
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
-----------------------------------
POOL BALANCE SUMMARY
--------------------------------------------------------
Balance Count
--------------------------------------------------------
Beginning Pool
Scheduled Principal Distribution
Unscheduled Principal Distribution
Deferred Interest
Liquidations
Repurchases
Ending Pool
</TABLE>
<TABLE>
<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>
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
ABN AMRO ACCT: XX-XXXX-XX-X
ASSET BACKED FACTS ~15 MONTH HISTORICAL LOAN STATUS SUMMARY
</TABLE>
<TABLE>
<CAPTION>
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>
10/17/00
-------------- -------------------------------------------------------------------------------------------
-------------- -------------------------------------------------------------------------------------------
-------------- -------------------------------------------------------------------------------------------
-------------- -------------------------------------------------------------------------------------------
-------------- -------------------------------------------------------------------------------------------
-------------- -------------------------------------------------------------------------------------------
<CAPTION>
Special Event Categories (1)
--------------------------------------------------------
Modifications Specially Serviced Bankruptcy
--------------------------------------------------------
# Balance # Balance # Balance
========================================================
<C> <C> <C> <C> <C> <C>
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
</TABLE>
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in
the Appropriate Delinquency Aging Category
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A. Page 5 of 19
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
ABN AMRO Acct: XX-XXXX-XX-X
ASSET BACKED FACTS ~15 MONTH HISTORICAL PAYOFF/LOSS SUMMARY
<CAPTION>
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>
10/17/00
------------ ----------------------------------------------------------------------------------------------------------------
------------ ----------------------------------------------------------------------------------------------------------------
------------ ----------------------------------------------------------------------------------------------------------------
------------ ----------------------------------------------------------------------------------------------------------------
------------ ----------------------------------------------------------------------------------------------------------------
============ ================================================================================================================
<CAPTION>
Remaining Term Curr Weighted Avg.
-------------------------------------
Life Amort. Coupon Remit
=====================================
<C> <C> <C> <C>
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
=====================================
</TABLE>
(1) Percentage based on pool as of cutoff. (2) Percentage based on pool as of
beginning of period.
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
ABN AMRO ACCT: XX-XXXX-XX-X
HISTORICAL COLLATERAL LEVEL PREPAYMENT REPORT
<CAPTION>
Disclosure Distribution Initial Payoff Penalty Prepayment Maturity Property
Control # Date Balance Code Amount Amount Date Date Type State
------------------------- ========================================== ===================== ==============================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
========================= ========================================== ==================== ==============================
CUMULATIVE 0 0
=========================
<CAPTION>
Remaining Term Note
------------------
DSCR Life Amort. Rate
========================================
<C> <C> <C> <C>
========================================
</TABLE>
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
</TABLE>
ABN AMRO ACCT: XX-XXXX-XX-X
DELINQUENT LOAN DETAIL
<TABLE>
<CAPTION>
==========================================================================================================
Paid Outstanding Out. Property
Disclosure Doc Thru Current P&I P&I Protection Advance
Control # Date Advance Advances** Advances Description (1)
==========================================================================================================
<S> <C> <C> <C> <C> <C>
==========================================================================================================
A. P&I Advance - Loan in Grace Period 1. P&I Advance - Loan delinquent 1 month
B. P&I Advance - Late Payment but < one month delinq 2. P&I Advance - Loan delinquent 2 months
==========================================================================================================
<CAPTION>
===========================================================
Special
Servicer Foreclosure Bankruptcy REO
Transfer Date Date Date Date
===========================================================
<C> <C> <C> <C>
===========================================================
3. P&I Advance - Loan delinquent 3 months or More
4. Matured Balloon/Assumed Scheduled Payment
===========================================================
</TABLE>
** Outstanding P&I Advances include the current period P&I Advance
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
</TABLE>
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
===============================================================================
===============================================================================
===============================================================================
0 0 0.00%
===============================================================================
===============================================================================
Average Scheduled Balance
Maximum Scheduled Balance
Minimum Scheduled Balance
DISTRIBUTION OF REMAINING TERM (FULLY AMORTIZING)
==============================================================================
Fully Amortizing # of Scheduled % of Weighted Average
--------------------------
Mortgage Loans Loans Balance Balance Term Coupon DSCR
==============================================================================
==============================================================================
==============================================================================
0 0 0.00%
==============================================================================
==============================================================================
Minimum Remaining Term
Maximum Remaining Term
DISTRIBUTION OF MORTGAGE INTEREST RATES
=============================================================================
------------------------==================-----------------------------------
Current Mortgage # of Scheduled % of Weighted Average
---------------------------
===========================
Interest Rate Loans Balance Balance Term Coupon DSCR
=============================================================================
=============================================================================
=============================================================================
0 0 0.00%
=============================================================================
=============================================================================
Minimum Mortgage Interest Rate 10.0000%
Maximum Mortgage Interest Rate 10.0000%
DISTRIBUTION OF REMAINING TERM (BALLOON)
===============================================================================
Balloon # of Scheduled % of Weighted Average
---------------------------
Mortgage Loans Loans Balance Balance Term Coupon DSCR
===============================================================================
0 to 60
61 to 120
121 to 180
181 to 240
241 to 360
===============================================================================
===============================================================================
0 0 0.00%
===============================================================================
===============================================================================
Minimum Remaining Term 0
Maximum Remaining Term 0
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
SERIES 2000-C4 Prior Payment: N/A
Next Payment: 11/17/2000
Record Date: 09/29/2000
</TABLE>
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
===============================================================================
===============================================================================
===============================================================================
0 0 0.00%
===============================================================================
===============================================================================
Maximum DSCR
Minimum DSCR
DISTRIBUTION OF DSCR (CUTOFF)
===============================================================================
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
===============================================================================
===============================================================================
===============================================================================
0 0 0.00%
===============================================================================
===============================================================================
Maximum DSCR 0.00
Minimum DSCR 0.00
GEOGRAPHIC DISTRIBUTION
===============================================================================
# of Scheduled % of
State Loans Balance Balance WAMM WAC DSCR
===============================================================================
===============================================================================
===============================================================================
0 0.00%
===============================================================================
===============================================================================
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
SERIES 2000-C4 Prior Payment: N/A
Next Payment: 11/17/2000
Record Date: 09/29/2000
</TABLE>
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
==============================================================================
==============================================================================
0 0 0.00%
==============================================================================
DISTRIBUTION OF AMORTIZATION TYPE
==============================================================================
Current Scheduled # of Scheduled % of
Balances Loans Balance Balance WAMM WAC DSCR
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
DISTRIBUTION OF LOAN SEASONING
==============================================================================
# of Scheduled % of
Number of Years Loans Balance Balance WAMM WAC DSCR
==============================================================================
==============================================================================
0 0 0.00%
==============================================================================
DISTRIBUTION OF YEAR LOANS MATURING
==============================================================================
# of Scheduled % of
Year Loans Balance Balance WAMM WAC DSCR
==============================================================================
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009 & Longer
==============================================================================
0 0 0.00%
==============================================================================
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICE Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
</TABLE>
ABN AMRO ACCT: XX-XXXX-XX-X
Loan Level Detail
<TABLE>
<CAPTION>
===================================================================================================================================
Operating Ending Spec.
Disclosure Property Statement Maturity Principal Note Scheduled Mod. Serv
Control # Grp Type State DSCR NOI Date Date Balance Rate P&I Flag Flag
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
===================================================================================================================================
W/Avg 0.00 0 0 0
===================================================================================================================================
* 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 1. P&I Adv - delinquent 1 month 3. P&I Adv - delinquent 3+ months
B. P&I Adv - < one month delinq 2. P&I Adv - delinquent 2 months 4. Mat. Balloon/Assumed P&I
===================================================================================================================================
<CAPTION>
===============================================================================================================
Loan
ASER Status Prepayment
--------------------------------------------
Flag Code(1) Amount Penalty Date
=================================================
<C> <C> <C> <C> <C>
================================================
0 0
================================================
------------------------------------------------------------
5. Prepaid in Full 7. Foreclosure 9. REO 11. Modification
6. Specially Serviced 8. Bankruptcy 10. DPO
===============================================================================================================
</TABLE>
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
</TABLE>
ABN AMRO ACCT: XX-XXXX-XX-X
SPECIALLY SERVICED (PART I) ~ LOAN DETAIL
<TABLE>
<CAPTION>
===================================== =============================== =====================================
Disclosure Transfer Balance Note Maturity
Control # Date Scheduled Actual Rate Date
===================================== =============================== =====================================
<S> <C> <C> <C> <C> <C>
<CAPTION>
============================= ============================= ====================================
Remaining Term Property NOI
Life Amort. Type State NOI DSCR Date
============================= ============================= ====================================
<C> <C> <C> <C> <C> <C> <C>
</TABLE>
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
ABN AMRO ACCT: XX-XXXX-XX-X
SPECIALLY SERVICED LOAN DETAIL (PART II) ~ SERVICER COMMENTS
==============================================================================
Disclosure Resolution
Control # Strategy Comments
==============================================================================
</TABLE>
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMR STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
ABN AMRO ACCT: XX-XXXX-XX-X
MODIFIED LOAN DETAIL
===============================================================================
Disclosure Modification Modification Modification
Control # Date Code Description
-------------------------------------------------------------------------------
</TABLE>
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
</TABLE>
ABN AMRO ACCT: XX-XXXX-XX-X
REALIZED LOSS DETAIL
<TABLE>
<CAPTION>
===================================================================================================================================
Beginning Gross Proceeds
Distribution Disclosure Appraisal Appraisal Scheduled Gross as a % of
Period Control # Date Value Balance Proceeds Sched Principal
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------------------
Current Total 0.00 0.00
Cumulative 0.00 0.00
===================================================================================================================================
<CAPTION>
====================================================================================
Aggregate Net Net Proceeds
Liquidation Liquidation as a % of Realized
Expenses * Proceeds Sched. Balance Loss
------------------------------------------------------------------------------------
<C> <C> <C> <C>
----------------------------------------------------------------------------------
0.00 0.00 0.00
0.00 0.00 0.00
====================================================================================
</TABLE>
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc.
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ABN AMRO STRUCTURED ASSET SECURITIES CORPORATION Statement Date: 10/17/2000
LaSalle Bank N.A. ORIX REAL ESTATE CAPITAL MARKETS, LLC, AS SERVICER Payment Date: 10/17/2000
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES Prior Payment: N/A
SERIES 2000-C4 Next Payment: 11/17/2000
Record Date: 09/29/2000
</TABLE>
ABN AMRO ACCT: XX-XXXX-XX-X
APPRAISAL REDUCTION DETAIL
<TABLE>
<CAPTION>
==================================== ====================================== ===================================================
Disclosure Appraisal Scheduled Reduction Note Maturity Remaining Term
--------------------
Control # Red. Date Balance Amount Rate Date Life Amort.
==================================== ====================================== ===================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
================================ ============== =================================
Property Appraisal
------------------------------------
Type State DSCR Value Date
================================ ============== =================================
<C> <C> <C> <C> <C>
</TABLE>
10/06/2000 - 15:06 (MXXX-MXXX) 2000 LaSalle Bank N.A.
<PAGE>
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: LB-UBS Commercial Mortgage Trust 2000-C4
Commercial Mortgage Pass Through Certificates, Series 2000-C4
(the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement dated as
of September 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 have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appear to have been executed
(where appropriate) and (C) purport to relate to such Mortgage Loan; and (iv)
based on the examinations referred to in Section 2.02(a) of the Agreement and in
this Certification and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (v) and (vi)(B) of the definition of "Mortgage Loan Schedule" accurately
reflects the information set forth in the Mortgage File.
Neither the Trustee nor any Custodian is under any duty or obligation to
inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Furthermore, neither the Trustee nor any Custodian
shall have any responsibility for determining whether the text of any assignment
or endorsement is in proper or recordable form, whether the requisite recording
of any document is in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction. In performing the review contemplated herein, the Trustee or any
Custodian may rely on the Depositor as to the purported genuineness of any such
document and any signature thereon.
<PAGE>
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
2
<PAGE>
Schedule A
ORIX Real Estate Capital Markets LLC
1717 Main Street, 14th Floor
Dallas, Texas 75201
Attn: LB-UBS Commercial Mortgage Trust 2000-C4
Structured Asset Securities Corporation
200 Vesey Street
New York, New York 10285
Attn: LB-UBS Commercial Mortgage Trust 2000-C4
Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Attn: LB-UBS Commercial Mortgage Trust 2000-C4
UBS Warburg LLC
299 Park Avenue
New York, New York 10019
Attn: LB-UBS Commercial Mortgage Trust 2000-C4
Deutsche Bank Securities Inc.
51 West 52nd Street
New York, New York 10019
Attn: LB-UBS Commercial Mortgage Trust 2000-C4
<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-C4
Re: LB-UBS Commercial Mortgage Trust 2000-C4,
Commercial Mortgage Pass-Through Certificates, Series 2000-C4
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee under that certain Pooling and Servicing Agreement
dated as of September 11, 2000 (the "Pooling and Servicing Agreement"), by and
among Structured Asset Securities Corporation as depositor, the undersigned as
master servicer (in such capacity, the "Master Servicer") and 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.
ORIX REAL ESTATE CAPITAL MARKETS LLC
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-C4
Re: LB-UBS Commercial Mortgage Trust 2000-C4,
Commercial Mortgage Pass-Through Certificates, Series 2000-C4
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee under that certain Pooling and Servicing Agreement
dated as of September 11, 2000 (the "Pooling and Servicing Agreement"), by and
among Structured Asset Securities Corporation as depositor, ORIX Real Estate
Capital Markets LLC as master servicer (in such capacity, the "Master Servicer")
and special servicer (in such capacity, 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.
ORIX REAL ESTATE CAPITAL MARKETS LLC
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, trailing twelve months or portion thereof
representing year to date, without regard to any cross-collateralization feature
of the related Mortgage Loan, the ratio of (x) the Net Cash Flow (before payment
of any debt service on the related Mortgage Loan) generated by such Mortgaged
Property 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 the number of
months represented by the financial information (and allocated on a
property-by-property basis for assets with multiple properties per loan).
With respect to any Mortgaged Property, "Net Cash Flow" 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.
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
actually paid for by the Mortgagor; provided that (a) Expenses shall on an
actual basis include capital items and Reserves but are normalized on an annual
basis in accordance with CMSA standard 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 or any
non-cash charge or expense such as depreciation.
Revenues and Expenses shall be calculated based on financial
statements, Mortgagor tax returns and/or rent rolls, in each case to the extent
appropriate and consistent with the Servicing Standard and the CMSA investor
reporting package.
<PAGE>
With respect to any Mortgaged Property, "Reserves" shall mean, for each
fiscal year, trailing 12 months or portion thereof representing year to date
information, 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-C4
Re: LB-UBS Commercial Mortgage Trust 2000-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4, Class __, [having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of September 28, 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 September 11, 2000, among
Structured Asset Securities Corporation as Depositor, ORIX Real Estate Capital
Markets LLC as Master Servicer and 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-C4
Re: LB-UBS Commercial Mortgage Trust 2000-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4, Class __, [having
an initial aggregate Certificate Principal Balance
[Certificate Notional Amount] as of September 28, 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 September 11, 2000, among
Structured Asset Securities Corporation as Depositor, ORIX Real Estate Capital
Markets LLC as Master Servicer and 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
<PAGE>
and servicing of the Mortgage Loans, (d) the Pooling and Servicing
Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and
(f) all related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
------------------------------------
(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
--------------
(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>
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date
of sale in the case of a foreign savings and loan association
or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
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-2-2
<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-C4
Re: LB-UBS Commercial Mortgage Trust 2000-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4, Class __, [having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of September 28, 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 September 11, 2000, among
Structured Asset Securities Corporation as Depositor, ORIX Real Estate Capital
Markets LLC as Master Servicer and 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-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4, Class __, [having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of September 28, 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 September 11, 2000, among Structured
Asset Securities Corporation as Depositor, ORIX Real Estate Capital Markets LLC
as Master Servicer and 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 consolidated with such Person in its financial statements prepared in
accordance with generally accepted
A-1-2
<PAGE>
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
A-2-1
<PAGE>
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in this
paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
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-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4, Class __, [having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of September 28, 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 September 11, 2000, among Structured
Asset Securities Corporation as Depositor, ORIX Real Estate Capital Markets LLC
as Master Servicer and 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 F-2E
FORM OF REGULATION S CERTIFICATE FOR
ACQUISITIONS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2000-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4, 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 Participant in Class __
Certificates having an initial [Certificate Principal Balance] [Certificate
Notional Amount] of $___________ (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 September 11, 2000, among Structured Asset Securities Corporation as
Depositor, ORIX Real Estate Capital Markets LLC as Master Servicer and 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 and agrees with you,
and for the benefit of the Depositor, that the Transferee is not a United States
Securities Person.
For purposes of this certification, "United States Securities Person"
means (i) any natural person resident in the United States, (ii) any partnership
or corporation organized or incorporated under the laws of the United States;
(iii) any estate of which any executor or administrator is a United States
Securities Person, other than any estate of which any professional fiduciary
acting as executor or administrator is a United States Securities Person if an
executor or administrator of the estate who is not a United States Securities
Person has sole or shared investment discretion with respect to the assets of
the estate and the estate is governed by foreign law, (iv) any trust of which
any trustee is a United States Securities Person, other than a trust of which
any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States, other than one held for the benefit or account of a non-United States
Securities Person by a dealer or other professional
<PAGE>
fiduciary organized, incorporated or (if an individual) resident in the United
States, (viii) any partnership or corporation if (a) organized or incorporated
under the laws of any foreign jurisdiction and (b) formed by a United States
Securities Person principally for the purpose of investing in securities not
registered under the Securities Act (as defined below), unless it is organized
or incorporated, and owned, by "accredited investors" (as defined in Rule
501(a)) under the United States Securities Act of 1933, as amended (the
"Securities Act"), who are not natural persons, estates or trusts; provided,
however, that the International Monetary Fund, the International Bank for
Reconstruction and Development, the Inter-American Development Bank, the Asian
Development Bank, the African Development Bank, the United Nations and their
agencies, affiliates and pension plans, any other similar international
organization, their agencies, affiliates and pension plans shall not constitute
United States Securities Persons.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, 20__
By:
--------------------------------------
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
2
<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-C4
Re: LB-UBS Commercial Mortgage Trust 2000-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of September 28, 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 September 11, 2000, among Structured Asset
Securities Corporation as depositor, ORIX Real Estate Capital Markets LLC as
master servicer and 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.
___ The Transferred Certificates are not Subordinate Certificates and are
being acquired by or on behalf of a Plan in reliance on Prohibited
Transaction Exemption 91-17, Prohibited Transaction Exemption 91-21 or
Prohibited Transaction Exemption 97-34, and such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section
3(16)(B) of ERISA) by the Trustee, the Depositor, any of the
<PAGE>
Mortgage Loan, any Exemption Favored Party Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer or any Mortgagor with
respect to Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Mortgage Loans determined on
the date of the initial issuance of the Certificates, or by any
Affiliate of such Person and (Z) agrees that it will obtain from each
of its Transferees that are Plans, a written representation that such
Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (X) and (Y).
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-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4, (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class ___ Certificates [having an initial aggregate Certificate Principal
Balance as of September 28, 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 September
11, 2000 (the "Pooling and Servicing Agreement"), among Structured Asset
Securities Corporation, as depositor, ORIX Real Estate Capital Markets LLC as
master servicer and 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.
___ The Transferred Certificates are not Subordinate Certificates and an
interest in such Certificates is being acquired by or on behalf of a
Plan in reliance on Prohibited Transaction Exemption 91-17, Prohibited
Transaction Exemption 91-21 or Prohibited Transaction Exemption 97-34,
and such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored
(within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any of the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, any Sub-Servicer, any Exemption-Favored Party or
any Mortgagor with respect to Mortgage Loans constituting more than 5%
of the
<PAGE>
aggregate unamortized principal balance of all the Mortgage Loans
determined on the date of the initial issuance of the Certificates, or
by any Affiliate of such Person and (Z) agrees that it will obtain from
each of its Transferees that are Plans, a written representation that
such Transferee, if a Plan, satisfies the requirements of the
immediately preceding clauses (X) and (Y), together with a written
agreement that such Transferee will obtain from each of its Transferees
that are Plans a similar written representation regarding satisfaction
of the requirements of the immediately preceding clauses (X) and (Y).
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-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4 (the "Certificates") issued
pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of September 11, 2000, among Structured
Asset Securities Corporation as Depositor, ORIX Real Estate Capital
Markets LLC as Master Servicer and 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
<PAGE>
governmental unit. The terms "United States" and "international organization"
shall have the meanings set forth in Section 7701 of the Code.
4. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
[Class R-I][Class R-II][Class R-III] Certificates to a Disqualified
Organization.
5. [check the statement that applies]
o 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).............................................................|_|
o 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 such 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
2
<PAGE>
respect to which the Purchaser has not (at the time of such transfer) satisfied
the requirements under the Code to conduct a reasonable investigation of the
financial condition of such person or entity (or its current beneficial owners
if such person or entity is classified as a partnership under the Code).
10. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the prohibition
against transferring the [Class R-I][Class R-II][Class R-III] Certificates to a
Disqualified Organization, an agent thereof or a person that does not satisfy
the requirements of paragraphs 5 and 7.
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-C4
Re: LB-UBS Commercial Mortgage Trust 2000-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Interest Certificates"). The
Certificates, including the Residual Interest Certificates, were issued pursuant
to the Pooling and Servicing Agreement, dated as of September 11, 2000 (the
"Pooling and Servicing Agreement"), among Structured Asset Securities
Corporation, as depositor, ORIX Real Estate Capital Markets LLC as master
servicer and 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
Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.,
55 Water Street, 10th Floor
New York, New York 10041
Attention: CMBS Surveillance Manager
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling
and Servicing Agreement, dated as of September 11, 2000 and relating to LB-UBS
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2000-C4 (the "Agreement"). Capitalized terms used but not otherwise defined
herein shall have respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
________________ to serve as the Special Servicer under the Agreement.
The designation of __________________ as Special Servicer will become
final if certain conditions are met and you deliver to _________________, the
trustee under the Agreement (the "Trustee"), written confirmation that if the
person designated to become the Special Servicer were to serve as such, such
event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
<PAGE>
Please acknowledge receipt of this notice by signing the enclosed copy
of this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE, INC.
By:
----------------------------------
Name:
Title:
Date:
STANDARD & POOR'S RATINGS SERVICES, A DIVISION OF THE MCGRAW-HILL COMPANIES,
INC.
By:
----------------------------------
Name:
Title:
Date:
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-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement, dated
as of September 11, 2000, relating to LB-UBS Commercial Mortgage Trust 2000-C4,
Commercial Mortgage Pass-Through Certificates, Series 2000-C4 (the "Agreement"),
the undersigned hereby agrees with all the other parties to the Agreement that
the undersigned shall serve as Special Servicer under, and as defined in, the
Agreement. The undersigned hereby acknowledges that, as of the date hereof, it
is and shall be a party to the Agreement and bound thereby to the full extent
indicated therein in the capacity of Special Servicer. The undersigned hereby
makes, as of the date hereof, the representations and warranties set forth in
Section 3.23 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-C4, Commercial Mortgage Pass-Through
Certificates, Series 2000-C4 (referred to as the "Secured Party" for purposes of
this financing statement only), under that certain Pooling and Servicing
Agreement, dated as of September 11, 2000 (the "Pooling and Servicing
Agreement"), among the Debtor as depositor, the Secured Party as trustee, ORIX
Real Estate Capital Markets LLC as master servicer (in such capacity, the
"Master Servicer") and special servicer (in such capacity, 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-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4. 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 Account required to be maintained by the Master
Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the Custodial Account, (c) the investments of any
such funds consisting of securities, instruments or other obligations, and (d)
the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(4) all REO Property acquired in respect of defaulted Mortgage Loans;
(5) (a) the REO Account required to be maintained by the Special
Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the REO Account, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or under any such
investments;
(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-C4 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
FIRST UNION NATIONAL BANK
LEGG MASON REAL ESTATE
L.J. MELODY
LAUREATE CAPITAL CORP
NORTHLAND/MARQUETTE CAPITAL
<PAGE>
EXHIBIT L
FORM OF CMSA LOAN PERIODIC UPDATE FILE REPORT
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
----------------------------------- -----------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
----------------------------------- -----------------------------------------------------------------------------------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
----------------------------------- -----------------------------------------------------------------------------------------------
Character Set ASCII
----------------------------------- -----------------------------------------------------------------------------------------------
Field Delineation Comma
----------------------------------- -----------------------------------------------------------------------------------------------
Density (Bytes-Per-Inch) 1600 or 6250
----------------------------------- -----------------------------------------------------------------------------------------------
Magnetic Tape Label None (unlabeled)
----------------------------------- -----------------------------------------------------------------------------------------------
Magnetic Tape Blocking Factor 10285 (17 records per block)
----------------------------------- -----------------------------------------------------------------------------------------------
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking Factor;
Record Length
----------------------------------- -----------------------------------------------------------------------------------------------
Return Address Label Required for return of physical media (magnetic tape or diskette)
----------------------------------- -----------------------------------------------------------------------------------------------
----------------------------------- ----------------------------------------- ----------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
----------------------------------- ----------------------------------------- ----------------------------------------------------
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 (less than)
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>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
---------------------------------------- -------------------------------- --------------------------------------------------------
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>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
------------------------------------------------- -------------------------- -----------------------------------------------------
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>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
------------------------------------------------ --------------------------- -----------------------------------------------------
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 print 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>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
--------------------------------------- ------------------------------ -----------------------------------------------------------
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>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
<S> <C>
---------------------------------------- -------------------------------------------------------------------------
WORKOUT STRATEGY CODE LEGEND STATUS OF MORTGAGE LOAN
---------------------------------------- LEGEND
1 Modification -------------------------------------------------------------------------
2 Foreclosure A Payment Not Received But Still In Grace Period
3 Bankruptcy B Late Payment But Less Than 30 days Delinquent
4 Extension 0 Current
5 Note Sale 1 30-59 Days Delinquent
6 DPO 2 60-89 Days Delinquent
7 REO 3 90+ Days Delinquent
8 Resolved 4 Assumed Scheduled Payment (Performing Matured Balloon)
9 Pending Return to Master Servicer 7 Foreclosure
10 Deed In Lieu Of Foreclosure 9 REO
11 Full Payoff -------------------------------------------------------------------------
12 Reps and Warranties
13 Other or TBD -------------------------------------------------------------------------
MODIFICATION CODE
---------------------------------------- LEGEND
LIQUIDATION/PREPAYMENT CODE -------------------------------------------------------------------------
LEGEND 1 Maturity Date Extension
---------------------------------------- 2 Amortization Change
1 Partial Liq'n (Curtailment) 3 Principal Write-Off
2 Payoff Prior To Maturity 4 Combination
3 Disposition -------------------------------------------------------------------------
4 Repurchase/ Substitution
5 Full Payoff At Maturity -------------------------------------------------------------------------
6 DPO DSCR INDICATOR
7 Liquidation LEGEND
8 Payoff w/ penalty -------------------------------------------------------------------------
9 Payoff w/ yield Maintenance P Partial - Not all properties received financials, servicer to
10 Curtailment w/ Penalty leave empty
11 Curtailment w/ Yield Maintenance 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
DEFEASANCE STATUS W Worst Case - Not all properties received financials, servicer
LEGEND allocates 100% of Debt Service to all properties where
---------------------------------------- financials are received.
P Partial Defeasance N None Collected - no financials were received
F Full Defeasance C Consolidated - All properties reported on one "rolled up"
N No Defeasance Occurred financial from the borrower
X Defeasance not Allowable -------------------------------------------------------------------------
----------------------------------------
-------------------------------------------------------------------------
NOI/NCF INDICATOR
LEGEND
-------------------------------------------------------------------------
CMSA Calculated using CMSA standard
PSA Calculated using a definition given in the PSA
U/W Calculated using the underwriting method
-------------------------------------------------------------------------
</TABLE>
<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"
<CAPTION>
-------------------------------------------- --------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
-------------------------------------------- --------------------------------------------------------------------------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
-------------------------------------------- --------------------------------------------------------------------------------------
-------------------------------------------- -------------------------- ---------------------------------------------- ----------
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
-------------------------------------------- -------------------------- ---------------------------------------------- ----------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic S1, L1
-------------------------------------------- -------------------------- ---------------------------------------------- ----------
Loan ID 2 AN XXX9701A Unique Servicer Loan Number Assigned To Each S3, L3
Collateral Item In A Pool
-------------------------------------------- -------------------------- ---------------------------------------------- ----------
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To Each S4, L4
Collateral Item In The Prospectus
-------------------------------------------- -------------------------- ---------------------------------------------- ----------
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001-001, 1000-002
-------------------------------------------- -------------------------- ---------------------------------------------- ----------
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders L5
-------------------------------------------- -------------------------- ---------------------------------------------- ----------
Cross-Collateralized Loan Grouping 6 AN Text All Loans With The Same Value Are Crossed, S75
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.
-------------------------------------------- -------------------------- ---------------------------------------------- ----------
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>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
<CAPTION>
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
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
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
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. L7
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinate, N= No
ground lease S74
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
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" S77
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
Most Recent Appraisal Date 24 AN YYYYMMDD L74
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
Most Recent Appraisal Value 25 Numeric 1000000.00 L75
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
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. L79
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
Foreclosure Date 27 AN YYYYMMDD L42
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
REO Date 28 AN YYYYMMDD L43
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
Most Recent Physical Occupancy 29 Numeric 0.75 L71
------------------------------------------------ ---------------------------- ---------------------------------------- ----------
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>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
<CAPTION>
------------------------------------------ ---------------------------- ---------------------------------------------- ----------
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>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
<CAPTION>
--------------------------------- --------------------------- -------------------------------------------------------- ----------
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
--------------------------------- --------------------------- -------------------------------------------------------- ----------
------------------------------------------- ------------------------------------------------------------
PROPERTY TYPES CODE NOI/NCF INDICATOR
LEGEND LEGEND
------------------------------------------- ------------------------------------------------------------
MF Multifamily CMSA Calculated using CMSA standard
RT Retail PSA Calculated using a definition given in the PSA
HC Health Care U/W Calculated using the underwriting method
IN Industrial ------------------------------------------------------------
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
SE Securities
-----------------------------------------------
</TABLE>
<PAGE>
EXHIBIT N
FORM OF CMSA FINANCIAL FILE
<PAGE>
<TABLE>
ATTACHMENT A:
CMSA FINANCIAL FILE - CATEGORY CODE MATRIX
<CAPTION>
------------------------------------------------------------------------------------------------------------
PROPERTY TYPE
----------------------------------------
CODE/ MULTI- HEALTH
SORT ORDER DESCRIPTION COMMERCIAL FAMILY CARE LODGING
------------------------------------------------------------------------------------------------------------
INCOME
------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
010GROSRNT Gross Potential Rent o o o
020VACANCY Less: Vacancy/Collection Loss o o o
030BASERNT Base Rent o o
040EXPREMB Expense Reimbursement o
050PCTRENT Percentage Rent o
060ROOMREV Room Revenue o
070FOODBEV Food & Beverage Revenues o
080PHONE Telephone Revenue o
090OTHDREV Other Departmental Revenue o
100PVTPAY Private Pay o
110MEDCARE Medicare/Medicaid o
120NURSING Nursing/Medical Income o
130MEALS Meals Income o
140LAUNDRY Laundry/Vending Income o
150PARKING Parking Income o o
160OTHERIN Other Income o o o o
------------------------------------------------------------------------------------------------------------
EXPENSES
------------------------------------------------------------------------------------------------------------
270ROOMS Room (Department) o
280FOODBEV Food & Beverage (Departmental) o
290PHONE Telephone Expenses (Departmental) o
300OTHDEPT Other Dept. Expenses o
310RETAXES Real Estate Taxes o o o o
320PROPINS Property Insurance o o o o
330UTILITI Utilities o o o o
340REPAIRS Repairs and Maintenance o o o o
350JANITOR Janitorial o
360FRANCHI Franchise Fee o
370MANAGEM Management Fees o o o o
380PAYROLL Payroll & Benefits o o o o
390MARKETI Advertising & Marketing o o o o
400PROFESS Professional Fees o o o o
410GENERAL General and Administrative o o o o
420ROOMS Room Expense - Housekeeping o
430MEALS Meal expense o
440OTHEREX Other Expenses o o o o
450GROUNDR Ground Rent o o o o
------------------------------------------------------------------------------------------------------------
RESRV & CAPEX
------------------------------------------------------------------------------------------------------------
490LEASING Leasing Commissions o
500TENANTI Tenant Improvements o
510CAPEX Capital Expenditures o o o o
520EXCAPEX Extraordinary Capital Expenditures o o o o
------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
DATA TYPES
---------------------------------------------------------------------------
YTD Current Year - Year to Date
AN Annual (prior 12 months' data...fiscal year - audited)
TR Trailing 12 months' data
UB Underwriting Base Line
---------------------------------------------------------------------------
---------------------------------------------------------------------------
STATEMENT TYPES
---------------------------------------------------------------------------
BOR Borrower's Statement (as submitted)
ADJ Adjustments to Borrower's Statement
NOR Normalized Statement (to CMSA format)
---------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ATTACHMENT B:
CMSA FINANCIAL FILE SPECIFICATIONS
------------------------------------------------------------------------------------------------------
RECORD LAYOUT
------------------------------------------------------------------------------------------------------
<S> <C> <C>
Fields: Trans ID From CMSA Loan Setup File, Field #1
Loan # From CMSA Property File, Field #2
Property ID From CMSA Property File, Field #4, Example: 1001-001
YYYYMM Financial Statement Beginning Date
YYYYMM Financial Statement Ending Date
Data Type See attached values
Stmt Type See attached values
Category Code See attached values
Amount Example : 999999.99 Enter positive values except for
adjustments, contra accounts or other negative numbers.
------------------------------------------------------------------------------------------------------
Key: Trans ID
Loan #
Property ID CMSA Property File, P4
YYYYMM Financial Statement Ending Date
Data Type
Statement Type
Category Code
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
SAMPLE ASCII PRESENTATION (PREFERRED)
------------------------------------------------------------------------------------------------------
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,010GROSRNT,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,020VACANCY,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,030BASERNT,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,160OTHERIN,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,310RETAXES,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,320PROPINS,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,330UTILITI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,340REPAIRS,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,350JANITOR,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,370MANAGEM,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,380PAYROLL,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,390MARKETI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,410GENERAL,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,440OTHEREX,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,500TENANTI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,510CAPEX,999999.99
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
SAMPLE SPREADSHEET PRESENTATION
------------------------------------------------------------------------------------------------------
BEGIN ENDING
TRANS ID LOAN # PROP ID YYYYMM YYYYMM DATA TYPE STMT TYPE CATEGORY AMOUNT
------------------------------------------------------------------------------------------------------
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 010GROSRNT 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 020VACANCY 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 030BASERNT 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 160OTHERIN 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 310RETAXES 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 320PROPINS 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 330UTILITI 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 340REPAIRS 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 350JANITOR 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 370MANAGEM 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 380PAYROLL 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 390MARKETI 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 410GENERAL 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 440OTHEREX 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 500TENANTI 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 510CAPEX 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 010GROSRNT 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 020VACANCY 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 030BASERNT 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 160OTHERIN 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 310RETAXES 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 320PROPINS 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 330UTILITI 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 340REPAIRS 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 350JANITOR 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 370MANAGEM 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 380PAYROLL 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 390MARKETI 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 410GENERAL 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 440OTHEREX 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 500TENANTI 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 510CAPEX 999999.99
------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT O
FORM OF CMSA LOAN SET-UP FILE
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
<CAPTION>
----------------------------- ---------------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
----------------------------- ---------------------------------------------------------------------------------------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking Factor;
Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
----------------------------- ---------------------------------------------------------------------------------------------------
----------------------------- ------------------------------------ ------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
----------------------------- ------------------------------------ ------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
----------------------------- ------------------------------------ ------------------------------------------------------------
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan Group
Within An Issue
----------------------------- ------------------------------------ ------------------------------------------------------------
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number 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
----------------------------- ------------------------------------ ------------------------------------------------------------
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
----------------------------- ------------------------------------ ------------------------------------------------------------
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
----------------------------- ------------------------------------ ------------------------------------------------------------
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
----------------------------- ------------------------------------ ------------------------------------------------------------
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
----------------------------- ------------------------------------ ------------------------------------------------------------
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
----------------------------- ------------------------------------ ------------------------------------------------------------
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
----------------------------- ------------------------------------ ------------------------------------------------------------
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted To Remit
Payment
----------------------------- ------------------------------------ ------------------------------------------------------------
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
----------------------------- ------------------------------------ ------------------------------------------------------------
Balloon (Y/N) 13 AN Y Y=Yes, N=No
----------------------------- ------------------------------------ ------------------------------------------------------------
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
----------------------------- ------------------------------------ ------------------------------------------------------------
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78's
----------------------------- ------------------------------------ ------------------------------------------------------------
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
----------------------------- ------------------------------------ ------------------------------------------------------------
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
----------------------------- ------------------------------------ ------------------------------------------------------------
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
----------------------------- ------------------------------------ ------------------------------------------------------------
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
----------------------------- ------------------------------------ ------------------------------------------------------------
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
----------------------------- ------------------------------------ ------------------------------------------------------------
Prepayment Terms Description 21 AN Text Should reflect the information in Annex A or use the format
of LO(36), YM(28), 7(12), O(3). If manually derived, the
Cutoff Date should be the start date for period counting.
----------------------------- ------------------------------------ ------------------------------------------------------------
ARM Index Code 22 AN A See Arm Index Code Legend
----------------------------- ------------------------------------ ------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
<CAPTION>
------------------------------------------- ----------------------------- ------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------- ----------------------------- ------------------------------------------------------
<S> <C> <C> <C> <C>
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
------------------------------------------- ----------------------------- ------------------------------------------------------
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
------------------------------------------- ----------------------------- ------------------------------------------------------
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of The
Gross Interest Rate
------------------------------------------- ----------------------------- ------------------------------------------------------
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm Loan
Per The Loan Agreement
------------------------------------------- ----------------------------- ------------------------------------------------------
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm Loan
Per The Loan Agreement
------------------------------------------- ----------------------------- ------------------------------------------------------
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed Per
The Loan Agreement
------------------------------------------- ----------------------------- ------------------------------------------------------
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Decrease To The Note Rate Allowed Per
The Loan Agreement
------------------------------------------- ----------------------------- ------------------------------------------------------
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Max Periodic % Increase To The P&I Payment Allowed Per
The Loan Agreement
------------------------------------------- ----------------------------- ------------------------------------------------------
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Max Periodic Dollar Increase To The P&I Payment
Allowed Per The Loan Agreement
------------------------------------------- ----------------------------- ------------------------------------------------------
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually
------------------------------------------- ----------------------------- ------------------------------------------------------
Rate Reset Frequency 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
------------------------------------------- ----------------------------- ------------------------------------------------------
Pay Reset Frequency 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
------------------------------------------- ----------------------------- ------------------------------------------------------
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin (See
Rounding Code Legend)
------------------------------------------- ----------------------------- ------------------------------------------------------
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
------------------------------------------- ----------------------------- ------------------------------------------------------
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment Date
------------------------------------------- ----------------------------- ------------------------------------------------------
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
------------------------------------------- ----------------------------- ------------------------------------------------------
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Max Lifetime % Increase to the Original Balance
Allowed Per The Loan Agreement
------------------------------------------- ----------------------------- ------------------------------------------------------
Maximum Negate Allowed ($) 40 Numeric 25000.00 Max Lifetime Dollar Increase to the Original Balance
Allowed Per The Loan Agreement
------------------------------------------- ----------------------------- ------------------------------------------------------
Remaining Term At Contribution 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan At
Cutoff
------------------------------------------- ----------------------------- ------------------------------------------------------
Remaining Amort Term At Contribution 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At
Cutoff
------------------------------------------- ----------------------------- ------------------------------------------------------
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan At
Contribution
------------------------------------------- ----------------------------- ------------------------------------------------------
Scheduled Principal Balance At Contribution 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage Loan
At Contribution
------------------------------------------- ----------------------------- ------------------------------------------------------
Note Rate At Contribution 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable To
The Calculation Of Scheduled Interest
------------------------------------------- ----------------------------- ------------------------------------------------------
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And Trustee
------------------------------------------- ----------------------------- ------------------------------------------------------
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
------------------------------------------- ----------------------------- ------------------------------------------------------
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
------------------------------------------- ----------------------------- ------------------------------------------------------
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
------------------------------------------- ----------------------------- ------------------------------------------------------
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
------------------------------------------- ----------------------------- ------------------------------------------------------
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
------------------------------------------- ----------------------------- ------------------------------------------------------
Net Rate At Contribution 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The
Calculation Of Remittance Interest
------------------------------------------- ----------------------------- ------------------------------------------------------
Periodic P&I Payment At Contribution 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment at
Contribution
------------------------------------------- ----------------------------- ------------------------------------------------------
# Of Properties at Contribution 54 Numeric 13 L86 - The Number Of Properties Underlying The Mortgage
Loan
------------------------------------------- ----------------------------- ------------------------------------------------------
Property Name 55 AN Text P7 - If Multiple properties print "Various"
------------------------------------------- ----------------------------- ------------------------------------------------------
Property Address 56 AN Text P8 - If Multiple properties print "Various"
------------------------------------------- ----------------------------- ------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
<CAPTION>
------------------------------------- --------------------------- ---------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------- --------------------------- ---------------------------------------------------------------
<S> <C> <C> <C> <C>
Property City 57 AN Text P9 - If Multiple properties have the same city then print the
city, otherwise print "Various". Missing information print
"Incomplete"
------------------------------------- --------------------------- ---------------------------------------------------------------
Property State 58 AN Text P10 - If Multiple properties have the same state then print the
state, otherwise print "XX" to represent various. Missing
information print "ZZ"
------------------------------------- --------------------------- ---------------------------------------------------------------
Property Zip Code 59 AN Text P11 - If Multiple properties have the same zip code then print
the zip code, otherwise print "Various". Missing information
print "Incomplete"
------------------------------------- --------------------------- ---------------------------------------------------------------
Property County 60 AN Text P12 - If Multiple properties have the same county then print
the county, otherwise print "Various". Missing information
print "Incomplete"
------------------------------------- --------------------------- ---------------------------------------------------------------
Property Type Code 61 AN MF P13 - If Multiple properties have the same property type code
then print the property code, otherwise print "XX" to represent
various. Missing information print "ZZ"
------------------------------------- --------------------------- ---------------------------------------------------------------
Net Square Feet At Contribution 62 Numeric 25000 P16 - For Multiple properties, if all the same Property Type,
sum the values, if missing any leave empty
------------------------------------- --------------------------- ---------------------------------------------------------------
# Of Units/Beds/Rooms At Contribution 63 Numeric 75 P17 - For Multiple properties, if all the same Property Type,
sum the values, if missing any leave empty
------------------------------------- --------------------------- ---------------------------------------------------------------
Year Built 64 AN YYYY P14 - If Multiple properties have the same Year Built then
print Year Built else leave empty
------------------------------------- --------------------------- ---------------------------------------------------------------
NOI At Contribution 65 Numeric 100000.00 P47 - If Multiple properties sum the values, if missing any
then populate using the "DSCR Indicator Legend" rule. Should
match the prospectus if available.
------------------------------------- --------------------------- ---------------------------------------------------------------
DSCR (NOI) At Contribution 66 Numeric 2.11 P48 - If Multiple properties populate using the "DSCR Indicator
Legend" rule. DSCR At Contribution using NOI. Should match
the prospectus if available.
------------------------------------- --------------------------- ---------------------------------------------------------------
Appraisal Value At Contribution 67 Numeric 1000000.00 P49 - If Multiple properties sum the values , if missing any
then leave empty
------------------------------------- --------------------------- ---------------------------------------------------------------
Appraisal Date At Contribution 68 AN YYYYMMDD P50 - If Multiple properties and all the same then print the
date, if missing any then leave empty
------------------------------------- --------------------------- ---------------------------------------------------------------
Physical Occupancy At Contribution 69 Numeric 0.88 P51 - If Multiple properties, Use weighted average by using
the calculation [ Current Allocated % (Prop) * Occupancy
(Oper) ] for each Property, if missing one then leave empty
------------------------------------- --------------------------- ---------------------------------------------------------------
Revenue At Contribution 70 Numeric 100000.00 P45 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule.
Should match the prospectus if available.
------------------------------------- --------------------------- ---------------------------------------------------------------
Operating Expenses At Contribution 71 Numeric 100000.00 P46 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule.
Should match the prospectus if available.
------------------------------------- --------------------------- ---------------------------------------------------------------
Contribution Financials As Of Date 72 AN YYYYMMDD P44 - If Multiple properties and all the same then print the
date, if missing any then leave empty
------------------------------------- --------------------------- ---------------------------------------------------------------
Recourse (Y/N) 73 AN Y Y=Yes, N=No
------------------------------------- --------------------------- ---------------------------------------------------------------
Ground Lease (Y/S/N) 74 AN Y Y=Yes, S=Subordinate, N= No ground lease, P22 - If Multiple
properties and any one property is "Y" or "S" print "Y"
------------------------------------- --------------------------- ---------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
<CAPTION>
----------------------------------- --------------------------- ------------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
----------------------------------- --------------------------- ------------------------------------------------------------------
<S> <C> <C> <C> <C>
Cross-Collateralized Loan Grouping 75 AN Text P6 - 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.
----------------------------------- --------------------------- ------------------------------------------------------------------
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No - Referring to Taxes and Insurance
----------------------------------- --------------------------- ------------------------------------------------------------------
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No - Referring to Reserves other than Taxes and
Insurance. If any property has a value > 0 in P23, this field
should be "Y"
----------------------------------- --------------------------- ------------------------------------------------------------------
Lien Position At Contribution 78 Numeric 1 1=First, 2=Second...
----------------------------------- --------------------------- ------------------------------------------------------------------
Hyper Amortizing Begin Date 79 AN YYYYMMDD L81 - Date used to track Anticipated Repayment Date Loans
----------------------------------- --------------------------- ------------------------------------------------------------------
Defeasance Option Start Date 80 AN YYYYMMDD Date loan can start defeasance
----------------------------------- --------------------------- ------------------------------------------------------------------
Defeasance Option End Date 81 AN YYYYMMDD Date that defeasance ends
----------------------------------- --------------------------- ------------------------------------------------------------------
Last Setup Change Date 82 AN YYYYMMDD L83 - Distribution Date that the information was last changed by
loan
----------------------------------- --------------------------- ------------------------------------------------------------------
NCF At Contribution 83 Numeric 100000.00 P76 - If Multiple properties sum the values, if missing any then
populate using the "DSCR Indicator Legend" rule. Net Cash Flow At
Contribution. Should match the prospectus if available.
----------------------------------- --------------------------- ------------------------------------------------------------------
DSCR (NCF) At Contribution 84 Numeric 2.11 P77 - If Multiple properties populate using the "DSCR Indicator
Legend" rule. DSCR At Contribution using NCF to calculate. Should
match the prospectus if available.
----------------------------------- --------------------------- ------------------------------------------------------------------
DSCR Indicator at Contribution 85 AN Text Flag used to explain how the DSCR was calculated when there are
multiple properties. See DSCR Indicator Legend.
----------------------------------- --------------------------- ------------------------------------------------------------------
Loan Contributor to Securitization 86 AN Text Name of entity ultimately responsible for the reps and warranties
of the loan contributed
----------------------------------- --------------------------- ------------------------------------------------------------------
Credit Tenant Lease 87 AN Y L101 - Y=Yes, N=No
----------------------------------- --------------------------- ------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
<CAPTION>
------------------------------------------------ --------------------------------------------------------------------------------
ROUNDING CODE ARM INDEX CODE
LEGEND LEGEND
------------------------------------------------ --------------------------------------------------------------------------------
<S> <C>
1 Unrounded A 11 FHLB COFI (1 Month)
2 Nearest Percentage Increment B 11 FHLB COFI (6 Month)
3 Up To Nearest Percentage Increment C 1 Year CMT Weekly Average Treasury
4 Down To Nearest Percentage Increment D 3 Year CMT Weekly Average Treasury
------------------------------------------------ E 5 Year CMT Weekly Average Treasury
F Wall Street Journal Prime Rate
------------------------------------------------ G 1 Month LIBOR
PROPERTY TYPES CODE H 3 Month LIBOR
LEGEND I 6 Month LIBOR
------------------------------------------------ J National Mortgage Index Rate
MF Multifamily All Others Use Short Text Description
RT Retail --------------------------------------------------------------------------------
HC Health Care
IN Industrial --------------------------------------------------------------------------------
WH Warehouse PAYMENT TYPE CODE
MH Mobile Home Park LEGEND
OF Office --------------------------------------------------------------------------------
MU Mixed Use 1 Fully Amortizing
LO Lodging 2 Amortizing Balloon
SS Self Storage 3 Interest Only / Balloon
OT Other 4 Interest Only / Amortizing
SE Securities 5 Interest Only / Amortizing / Balloon
------------------------------------------------ 6 Principal Only
7 Hyper-Amortization
9 Other
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
DSCR INDICATOR
LEGEND
--------------------------------------------------------------------------------
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 1 "rolled up" financial
from the borrower
--------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT P
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
<PAGE>
CMSA INVESTOR REPORTING PACKAGE
COMPARATIVE FINANCIAL STATUS REPORT
as of
( Property Level Report )
Operating Information Reflected As NOI ___or NCF ___
P4 P9 P10 P52 P21 L8 P57
Last Current Allocated
Property Allocated Paid Annual
Property Inspection Loan Thru Debt
ID City State Date Amount Date Service
yyyymmdd
List all properties currently in deal with or without information
largest to smallest loan
This report should reflect the information provided in the CMSA Property File
and CMSA Loan Periodic Update File
Total $ $
P44 P51 P45 P47 or P76 P48 or P77
ORIGINAL UNDERWRITING
INFORMATION
BASE YEAR
Financial
Info as of % Total $ (1)
Date Occ Revenue NOI/NCF DSCR
yyyymmdd
Total: **WA $ $ WA
P60 P66 P61 P63 or P80 P65 or P61
2ND PRECEDING ANNUAL OPERATING
INFORMATION
as of ___
Financial
Info as of % Total $ (1)
Date Occ Revenue NOI/NCF DSCR
yyyymmdd
WA $ $ WA
P53 P59 P54 P56 or P78 P58 or P79
PRECEDING ANNUAL OPERATING
INFORMATION
AS OF ___ NORMALIZED
Financial
Info as of % Total $ (1)
Date Occ Revenue NOI/NCF DSCR
yyyymmdd
WA $ $ WA
P73 P74 P30 P29 P68 P70 or P82 P72 or P83
MOST RECENT FINANCIAL
INFORMATION
*NORMALIZED OR ACTUAL
FS Start FS End Occ As of % Total $ (1)
Date Date Date Occ Revenue NOI/NCF DSCR
yyyymmdd yyyymmdd yyyymmdd
WA $ $ WA
(2)
NET CHARGE
PRECEDING & BASIS
%
% Total (1)
Occ Revenue DSCR
WA $ WA
(1) DSCR should match to Operating Statement Analysis Report and is normally
calculated using NOI or NCF / Debt Service times the allocated loan
percentage.
(2) Net change should compare the latest year to the Base Year.
* As required by Trust Agreements.
** Weighted Averages should be computed and reflected if the data is relevant
and applicable.
<PAGE>
EXHIBIT Q
FORM OF REO STATUS REPORT
<PAGE>
CMSA INVESTOR REPORTING PACKAGE
REO STATUS REPORT
AS OF ____________
(PROPERTY LEVEL REPORT)
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI_____ or NCF _____
-----------------------------------------------------------------------------------------------------------------------------------
P16
OR
P4 P7 P13 P9 P10 P17 L8 P21 L37 L39 L38
-----------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d)
-----------------------------------------------------------------------------------------------------------------------------------
ALLOCATED
ENDING OTHER
SQ FT PAID SCHEDULED TOTAL P&I EXPENSE TOTAL T&I
PROPERTY PROPERTY PROPERTY OR TRHU LOAN ADVANCE ADVANCE ADVANCE
ID NAME TYPE CITY STATE UNITS DATE AMOUNT OUTSTANDING OUTSTANDING OUTSTANDING
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
REO's data reflected at the property level for relationships with more than one (1) property should use the Allocated Ending
Scheduled Loan Amount, and prorate all advances and expenses or other loan level data as appropriate
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value.
-----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
P58 OR
P72/P79
P4 L25 L11 P53 OR P74 OR P83 P24 P25
---------------------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (f) (g) (h)=(.90*g)-e
---------------------------------------------------------------------------------------------------------------------------------
APPRAISAL
BPO OR
INTERNAL APPRAISAL
CURRENT LTM LTM VALUE BPO OR LOSS USING
PROPERTY TOTAL MONTHLY MATURITY NOI/NCF DSCR VALUATION SOURCE INTERNAL 90% APPR. OR
ID EXPOSURE P&I DATE DATE (NOI/NCF) DATE (1) VALUE BPO(F)
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
-------------------------------------------------------------------------------------
P4 L99 L77 P28 P26
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
DATE
TOTAL ASSET
APPRAISAL REO EXPECTED
PROPERTY REDUCTION TRANSFER ACQUISITION TO BE
ID REALIZED DATE DATE RESOLVED COMMENTS
-------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT R
FORM OF SERVICER WATCH LIST REPORT
<PAGE>
CMSA INVESTOR REPORTING PACKAGE
SERVICER WATCH LIST
AS OF _____________
(LOAN LEVEL REPORT)
Operating Information Reflected As NOI _____ or NCF _____
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 L7 L8 L11 L56/L93 L70/L97
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
PRECEDING MOST
ENDING PAID FISCAL YR RECENT
PROSPECTUS PROPERTY PROPERTY SCHEDULED THRU MATURITY DSCR DSCR
LOAN ID NAME TYPE CITY STATE LOAN BALANCE DATE DATE NOI/NCF NOI/NCF COMMENT/ACTION TO BE TAKEN
---------------------------------------------------------------------------------------------------------------------------------
List all loans on watch list in descending balance order.
Comment section should include reason and other pertinent information.
Should not include loans that are specially serviced.
WATCH LIST SELECTION CRITERIA SHOULD BE FOOTNOTED ON THE REPORT. THE CRITERIA MAY BE DICTATED AS PER THE PSA OR THE
SERVICER'S INTERNAL POLICY.
Total: $
---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT S
FORM OF DELINQUENT LOAN STATUS REPORT
<PAGE>
CMSA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN STATUS REPORT
AS OF ___________
(LOAN LEVEL REPORT)
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI _____ or NCF _____
S4 S55 S61 S57 S58 S62 or S63 L8 L7 L37 L39 L38 L25
(a) (b) (c) (d) (e)=a+b=c+d
Loan
Prosp- Paid Ending Total P&I Other Expense Total T&I Total Current
ectus Property Property Sq Ft or Thru Scheduled Advances Advance Advances Exposure Monthly
ID Name Type City State Units Date Loan Balance Outstanding Outstanding Outstanding P&I
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
60 TO 89 DAYS DELINQUENT
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
30 TO 59 DAYS DELINQUENT
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT AND AT SPECIAL SERVICER
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
FCL = Foreclosure
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing 12 months, if available.
-----------------------------------------------------------------------------------------------------------------------------------
*Workout Strategy should match the CMSA Loan Periodic Update File using abbreviated words in place of a
code number such as (FCL - In Foreclosure, MOD - Modification, DPO - Discount Payoff, NS - Note Sale,
BK - Bankruptcy, 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, BX/FCL/DPO).
**BPO - Broker opinion
-----------------------------------------------------------------------------------------------------------------------------------
L54 or L56 or
L68/L92 or L70/L93 or
L96 L97
L10 L11 L58 or L73 L74 L75
(f) (.90*f)-e
Appraisal
Current BPO or Loss using
Interest Maturity LTM/NOI/NCF LTM LTM DSCR Valuation Internal 90% Approx. or
Rate Date Date NOI/NCF (NOI/NCF) Date Value** BPO (f)
<S> <C> <C> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
60 TO 89 DAYS DELINQUENT
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
30 TO 59 DAYS DELINQUENT
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT AND AT SPECIAL SERVICER
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
L99 L77 L79 L76
Total Date Asset
Appraisal Expected to be
Reduction Transfer Resolved or Workout
Realized Date Foreclosed Strategy* Comments
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
60 TO 89 DAYS DELINQUENT
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
30 TO 59 DAYS DELINQUENT
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
CURRENT AND AT SPECIAL SERVICER
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT T
FORM OF HISTORICAL LOAN MODIFICATION REPORT
<PAGE>
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LOAN MODIFICATION REPORT
AS OF _______________
(LOAN LEVEL REPORT)
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 L49 L48 L7* L7* L50*
Balance
When
Mod/ Extension per Effective Sent to Balance at the
Prospectus Extension Docs or Date of Special Effective Date of Old
ID City State Flag Servicer Modification Servicer Modification Rate
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
-----------------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
*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.
-----------------------------------------------------------------------------------------------------------------------------------
L50* L25* L25* L11* L11* L47
(2) Est.
Future
Interest
Total # (1) Loss to
# Mths Mths for Realized Trust $
for Rate New New Old New Change Loss to (Rate
Change Rate Old P&I P&I Maturity Maturity of Mod Trust $ Reduction) Comment
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
-----------------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
*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.
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT U
FORM OF HISTORICAL LIQUIDATION REPORT
<PAGE>
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF OR NOTE SALE)
AS OF ____________
(LOAN LEVEL REPORT)
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 L75 L29 L45
---------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d)
---------------------------------------------------------------------------------------------------------------------------------
% LATEST
RECEIVED APPRAISAL EFFECTIVE NET AMT
PROSPECTUS PROPERTY PROPERTY FROM OR BROKERS DATE OF SALES RECEIVED
LOAN ID NAME TYPE CITY STATE LIQUIDATION OPINION LIQUIDATION PRICE FROM SALE
---------------------------------------------------------------------------------------------------------------------------------
<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:
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees charged by the Special Servicer.
---------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
S4 L7 L37 L39+L38 L47
--------------------------------------------------------------------------------------------------------------------------------
(e) (f) (g) (h) (i)=d-(f+g+h) (k) (m)
--------------------------------------------------------------------------------------------------------------------------------
TOTAL T&I
AND OTHER DATE
ENDING TOTAL P&I EXPENSES SERVICING LOSS
PROSPECTUS SCHEDULED ADVANCE ADVANCE FEES REALIZED PASSED MINOR ADJ
LOAN ID BALANCE OUTSTANDING OUTSTANDING EXPENSE NET PROCEEDS LOSS THRU TO TRUST
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------
<CAPTION>
------------------------------------------------------------
S4
------------------------------------------------------------
(n)=k+m (o)=n/e
------------------------------------------------------------
DATE OF
MINOR
ADJ TOTAL LOSS LOSS % OF
PROSPECTUS PASSED WITH SCHEDULED
LOAN ID THRU ADJUSTMENT BALANCE
------------------------------------------------------------
<S> <C> <C> <C>
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT V
FORM OF NOI ADJUSTMENT WORKSHEET
<PAGE>
COMMERCIAL NOI ADJUSTMENT WORKSHEET
(includes Retail/Office/Industrial/Warehouse/Mixed Use/Self Storage)
AS OF MM/DD/YY
<TABLE>
<CAPTION>
<S> <C>
===================================================================================================================
PROPERTY OVERVIEW
-------------
PROSPECTUS ID
------------------------------------
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
------------------------------------
Property Name
------------------------------------
Property Type
------------------------------------
Property Address, City, State
------------------------------------
Net Rentable SF/Units/Pads, Beds Use second box to specify sqft., units...
-------------------------
Year Built/Year Renovated
-------------------------
Cap Ex Reserve (anually)/per Unit etc. (1) specify annual/per unit...
-------------------------
Year of Operations
-------------
Occupancy Rate (physical)
-------------
Occupancy Date
-------------
Average Rental Rate
-------------
(1) Total $ amount of Capital Reserves required annually by loan
documents, excl. Leasing Commission and TI's
===================================================================================================================
YYY NOTES
BORROWER ADJUSTMENT NORMALIZED
ACTUAL
INCOME:
----------------------------------------------------------------------------------------------
Statement Classification
----------------------------------------------------------------------------------------------
Gross Potential Rent (2)
----------------------------------------------------------------------------------------------
Less: Vacancy Loss
----------------------------------------------------------------------------------------------
OR
----------------------------------------------------------------------------------------------
Base Rent (2)
----------------------------------------------------------------------------------------------
Expense Reimbursement
----------------------------------------------------------------------------------------------
Percentage Rent
----------------------------------------------------------------------------------------------
Parking Income
----------------------------------------------------------------------------------------------
Other Income
----------------------------------------------------------------------------------------------
EFFECTIVE GROSS INCOME
----------------------------------------------------------------------------------------------
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative
$amt for Vacancy Loss
OPERATING EXPENSES:
----------------------------------------------------------------------------------------------
Real Estate Taxes
----------------------------------------------------------------------------------------------
Property Insurance
----------------------------------------------------------------------------------------------
Utilities
----------------------------------------------------------------------------------------------
Repairs and Maintenance
----------------------------------------------------------------------------------------------
Janitorial
----------------------------------------------------------------------------------------------
Management Fees
----------------------------------------------------------------------------------------------
Payroll & Benefits Expense
----------------------------------------------------------------------------------------------
Advertising & Marketing
----------------------------------------------------------------------------------------------
Professional fees
----------------------------------------------------------------------------------------------
General and Administrative
----------------------------------------------------------------------------------------------
Other Expenses
----------------------------------------------------------------------------------------------
Ground Rent
----------------------------------------------------------------------------------------------
TOTAL OPERATING EXPENSES
----------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
----------------------------------------------------------------------------------------------
NET OPERATING INCOME
----------------------------------------------------------------------------------------------
Leasing Commissions (3)
----------------------------------------------------------------------------------------------
Tenant Improvements (3)
----------------------------------------------------------------------------------------------
Capital Expenditures
----------------------------------------------------------------------------------------------
Extraordinary Capital Expenditures
----------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
----------------------------------------------------------------------------------------------
(3) Actual current yr, but normalize for annual if possible via contractual, U/W or other data
----------------------------------------------------------------------------------------------
NET CASH FLOW
----------------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
----------------------------------------------------------------------------------------------
NET CASH FLOW AFTER DEBT SERVICE
----------------------------------------------------------------------------------------------
DSCR: (NOI/DEBT SERVICE)
----------------------------------------------------------------------------------------------
DSCR: (NCF/DEBT SERVICE)
----------------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
----------------------------------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for "Normalization" of Borrower's numbers. Methodology used is per
MBA/CMSA Standard Methodology unless otherwise noted. The "Normalized" column and corresponding comments should roll through to the
Operating Statement Analysis Report.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
</TABLE>
<PAGE>
EXHIBIT W
FORM OF OPERATING STATEMENT ANALYSIS REPORT
<PAGE>
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT
(includes Retail/Office/Industrial/Warehouse/Mixed Use/Self Storage)
AS OF MM/DD/YY
<TABLE>
<CAPTION>
<S> <C>
===================================================================================================================
PROPERTY OVERVIEW
-------------
PROSPECTUS ID
------------------------------------
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
----------------------------------------------------------------------
Property Name
----------------------------------------------------------------------
Property Type
----------------------------------------------------------------------
Property Address, City, State
----------------------------------------------------------------------
Net Rentable SF/Units/Pads, Beds Use second box to specify sqft., units...
-------------------------
Year Built/Year Renovated
-------------------------
Cap Ex Reserve (anually)/per Unit. etc. (1) specify annual/per unit...
---------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
---------------------------------------------------------
Occupancy Rate (physical)
---------------------------------------------------------
Occupancy Date
---------------------------------------------------------
Average Rental Rate
---------------------------------------------------------
(1) Total $ amount of Capital Reserves required annually by loan
documents, excl. Leasing Commission and TI's
===================================================================================================================
INCOME:
----------------------------------------------------------------------------------------------
Number of Mos. Covered (prcdng yr to base)(prcdng yr to 2nd prcdng)
----------------------------------------------------------------------------------------------
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) as of / /XX Variance Variance
----------------------------------------------------------------------------------------------
Gross Potential Rent (3)
----------------------------------------------------------------------------------------------
Less: Vacancy Loss
----------------------------------------------------------------------------------------------
OR
----------------------------------------------------------------------------------------------
Base Rent (3)
----------------------------------------------------------------------------------------------
Expense Reimbursement
----------------------------------------------------------------------------------------------
Percentage Rent
----------------------------------------------------------------------------------------------
Parking Income
----------------------------------------------------------------------------------------------
Other Income
----------------------------------------------------------------------------------------------
*EFFECTIVE GROSS INCOME
----------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative
$amt for Vacancy Loss
OPERATING EXPENSES:
----------------------------------------------------------------------------------------------
Real Estate Taxes
----------------------------------------------------------------------------------------------
Property Insurance
----------------------------------------------------------------------------------------------
Utilities
----------------------------------------------------------------------------------------------
Repairs and Maintenance
----------------------------------------------------------------------------------------------
Janitorial
----------------------------------------------------------------------------------------------
Management Fees
----------------------------------------------------------------------------------------------
Payroll & Benefits
----------------------------------------------------------------------------------------------
Advertising & Marketing
----------------------------------------------------------------------------------------------
Professional fees
----------------------------------------------------------------------------------------------
General and Administrative
----------------------------------------------------------------------------------------------
Other Expenses
----------------------------------------------------------------------------------------------
Ground Rent
----------------------------------------------------------------------------------------------
*TOTAL OPERATING EXPENSES
----------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
----------------------------------------------------------------------------------------------
*NET OPERATING INCOME
----------------------------------------------------------------------------------------------
Leasing Commissions
----------------------------------------------------------------------------------------------
Tenant Improvements
----------------------------------------------------------------------------------------------
Capital Expenditures
----------------------------------------------------------------------------------------------
Extraordinary Capital Expenditures
----------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
----------------------------------------------------------------------------------------------
*NET CASH FLOW
----------------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
----------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
----------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
----------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
----------------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
----------------------------------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Year above will roll, always showing a 3yr sequential history. Comments from the most recent NOI Adjustment
Worksheet should be carried forward to Operating Statement Analysis Report. Year-over-year variances (either higher or lower) must
be explained and noted for the following: >10% DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA Loan Periodic Update File. Note that information for
multiple property loans must be consolidated (if available) for reporting to the CMSA Loan Periodic Update file.
</TABLE>
<PAGE>
EXHIBIT X
FORM OF LOAN PAYOFF NOTIFICATION REPORT
<PAGE>
CSSA STANDARD INFORMATION PACKAGE - DRAFT
LOAN PAYMENT NOTIFICATION REPORT
AS OF ______________
<TABLE>
<CAPTION>
S4 S55 S61 S58 P7 P8 P10 P11 P93 P97
----------------------------------------------------------------------------------------------------------------------------------
SHORT NAME PAID PRECEDING MOST
PROSPECTUS ID (WHEN PROPERTY TYPE STATE SCHEDULED THRU CURRENT MATURITY FISCAL YR RECIENT
APPROPRIATE) LOAN BALANCE DATE INTEREST RATE DATE DSCR DSCR
NCF NCF
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Scheduled Payments
Unscheduled Payments
Total: $
</TABLE>
SERVICER ESTIMATED INFORMATION
--------------------------------------------------------------
EXPECTED EXPECTED
YIELD PAYMENT DISTRIBUTION
MAINTENANCE DATE DATE
--------------------------------------------------------------
THE BORROWER HAS ONLY REQUESTED THE INFORMATION TO PAY-OFF. THIS DOES NOT
INDICATE A DEFINITE PAYMENT.
<PAGE>
EXHIBIT Y-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-C4
Re: LB-UBS Commercial Mortgage Trust 2000-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of September 11, 2000 (the "Pooling and Servicing
Agreement"), among Structured Asset Securities Corporation, as depositor (the
"Depositor"), ORIX Real Estate Capital Markets LLC as master servicer and
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-C4, Commercial Mortgage Pass-Through Certificates, Series
2000-C4 (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 Y-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-C4
Re: LB-UBS Commercial Mortgage Trust 2000-C4, Commercial Mortgage
Pass-Through Certificates, Series 2000-C4
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of September 11, 2000 (the "Pooling and Servicing
Agreement"), among Structured Asset Securities Corporation as depositor (the
"Depositor"), ORIX Real Estate Capital Markets LLC as master servicer and
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-C4, Commercial Mortgage Pass-Through Certificates, Series
2000-C4 (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
<PAGE>
EXHIBIT Z
DEPOSITOR'S ORGANIZATIONAL DOCUMENTS
<PAGE>
RESTATED
CERTIFICATE OF INCORPORATION
OF STRUCTURED ASSET SECURITIES CORPORATION
-------------------------------------------------------------------
Pursuant to Sections 245 and 242 of the General
Corporation Law of the State of Delaware
-------------------------------------------------------------------
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation
organized on January 2, 1987 under the name E. F. Hutton Mortgage Capital Inc.,
does hereby amend and restate its Restated Certificate of Incorporation, as
heretofore amended, to read in its entirety as set forth below:
ARTICLE I
NAME
The name of the corporation is Structured Asset Securities Corporation
(the "Corporation").
ARTICLE II
REGISTERED OFFICE; REGISTERED AGENT
The street address of the registered office of the Corporation is 1013
Centre Road, City of Wilmington 19805, County of New Castle, and the name of its
registered agent at that address is Corporation Service Company.
<PAGE>
ARTICLE III
PURPOSES
The purpose for which the Corporation is organized is:
(a) To acquire, own, hold, transfer, assign, pledge and otherwise deal
with the following (the "Mortgage Collateral"): (i) (A) "fully modified
pass-through" mortgage-backed certificates guaranteed as to timely payment of
principal and interest by the Government National Mortgage Association; (B)
Guaranteed Mortgage Pass-Through Certificates issued and guaranteed as to timely
payment of principal and interest by the Federal National Mortgage Association;
(C) Mortgage Participation Certificates issued and guaranteed as to timely
payment of interest and principal, in most cases, by the Federal Home Loan
Mortgage Corporation (collectively, the "Agency Certificates"); (D) securities
representing interests in Agency Certificates; or (E) mortgage pass-through
certificates or mortgage-collateralized bonds issued by any other entity with
respect to or secured by a pool of mortgage loans (collectively, "Certificates")
which are either owned by the Corporation or granted by a Borrower (as defined
below) to secure payment of Mortgage Backed Notes (as defined below); (ii)
mortgage notes and related mortgages, or interests therein (including, but not
limited to, participation certificates with respect to such mortgage notes or
related mortgages), or guaranteed notes, provided the guaranty is secured by a
mortgage on real property (collectively, the "Pledged Mortgages"), which are
either owned by the Corporation or granted by a Borrower to secure payment of a
Mortgage Backed Note; (iii) mortgage backed notes evidencing loans made by the
Corporation to commercial banks, saving and loan associations and savings banks,
the deposits of which are insured by the Federal Deposit Insurance Corporation
("FDIC"), affiliates of FDIC insured institutions, and other entities which are
not FDIC insured institutions but are engaged directly, or through the owners of
such entities or their affiliates, in mortgage financing, origination or funding
activities (e.g., mortgage bankers, home builders and state agencies), or to any
other entity (collectively, the "Borrowers"), which loans are secured by Pledged
Mortgages or Certificates ("Mortgage Backed Notes"); and (iv) real property and
any improvements thereon, including commercial, multifamily and residential
properties ("Properties");
(b) To authorize, issue, sell and deliver bonds or other evidences of
indebtedness ("Bonds") that are secured by a pledge or other assignment of
Mortgage Collateral, reserve funds, guaranteed investment contracts, letters of
credit, insurance contracts, surety bonds or any other credit enhancement device
(collectively, the "Collateral"), and are rated in one of the four highest
categories available by any nationally recognized statistical rating agency;
(c) To serve as depositor of one or more trusts that may authorize,
issue, sell and deliver Bonds or certificates of interest that are secured by a
pledge or other assignment of, or represents an interest in, the Collateral and
are rated in one of the four highest categories available by any nationally
recognized rating agency; provided that one or more classes of an issue of such
securities by such trust may be subordinate to other securities of such issue
and not so rated; and
(d) To do all such things as are reasonable or necessary to enable the
Corporation to carry out any of the above, including entering into loan
agreements, insurance agreements, servicing agreements, reimbursement
agreements, issuing debt (subject to the provisions of this Article III,
2
<PAGE>
Article VIII and Article X hereof) and selling residual interests in Mortgage
Collateral or selling certificates of participation in any trust for which the
Corporation serves as depositor.
ARTICLE IV
AUTHORIZED STOCK
The Corporation may issue 1,000 shares, divided into 1,000 shares of
Common Stock with a par value of $1.00 per share. No additional Common Stock and
no classes of Preferred Stock may be issued.
ARTICLE V
BOARD OF DIRECTORS
The Board of Directors shall consist of not less than one nor more than
fifteen members, the exact number of which shall be fixed from time to time by
the Board of Directors. The number of Directors may be changed as provided in
the Bylaws. The Directors need not be elected by written ballot unless required
by the Bylaws of the Corporation.
At all times, at least one of the directors shall be an Independent
Director. For the purposes of this certificate, "Independent Director" shall
mean a director of the Corporation who shall at no time be or have been a
director or officer of, or be employed by, any direct or ultimate parent, or
Affiliate of any direct or ultimate parent of the Corporation, and who shall at
no time hold any beneficial interest in the Corporation; provided, however, that
such Independent Director may serve in similar capacities for other "special
purpose corporations" formed by any direct or ultimate parent of the Corporation
or any Affiliate; and "Affiliate" shall mean, with respect to any entity, any
other entity other than the Corporation, controlling or controlled by or under
common control with such entity, and "control" means the power to direct the
management and policies of such entity, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise. Each Independent
Director, in voting on matters subject to the approval of the Board of Directors
of the Corporation, shall at all times take into account the interests of
creditors of the Corporation, as well as the interests of the Corporation.
ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized and empowered to make,
alter or repeal the Bylaws of the Corporation, subject to the reserved power of
the stockholders to adopt, amend or repeal Bylaws which may include the power to
restrict in any manner power granted to the Board of Directors by this Article
VI.
3
<PAGE>
ARTICLE VII
LIMITATION ON DIRECTOR LIABILITY
No Director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director; provided, however, that this limitation of liability of a
Director shall not apply with respect to (i) any breach of the Director's duty
of loyalty to the Corporation or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) any liability arising under Section 174 of the General Corporation
Law of the State of Delaware and (iv) any transaction from which the Director
derives an improper personal benefit.
ARTICLE VIII
LOAN AGREEMENTS AND INDENTURES
The Corporation shall not do or perform any act expressly prohibited
below:
(i) The Corporation shall not incur, assume or guarantee any
indebtedness except for such indebtedness that (a) is described in
paragraph (b) or (c) of Article III hereof; (b) is a capital stock
liability; (c) is an account payable and expense accrual incurred in
the ordinary course of business, including fees and expenses payable
pursuant to a collateral custody, pledge and security agreement entered
into by any trustee or lender (collectively, the "Lenders") under any
indenture, loan agreement or similar agreement to which the Corporation
is party (collectively, the "Loan Agreements"); or (d) is short-term
borrowing from affiliates for the purpose of paying organizational
expenses of the Corporation and initial expenses of filing any
registration statement with the Securities and Exchange Commission.
(ii) The Corporation shall not engage in any business or activity
other than in connection with or relating to the issuance of
indebtedness evidenced by the Loan Agreements and such activities as
are reasonable and necessary to enable the Corporation to carry out its
purposes as set forth in Article III hereof.
(iii) The Corporation shall not consolidate (other than for
federal income tax purposes) or merge with or into any other entity or
convey or transfer its properties and assets, substantially or in the
entirety, to any entity (other than as described in paragraphs (a),
(b), (c) or (d) of Article III hereof) unless (a) the entity (if other
than the Corporation) formed or surviving such consolidation or merger,
or that acquires by conveyance or transfer the properties and assets of
the Corporation substantially or in the entirety, shall be organized
and existing under the laws of the United States of America or any
state thereof or the District of Columbia, and shall expressly assume,
by a supplement to each Loan Agreement, executed and delivered to each
Lender under each Loan Agreement, in form satisfactory to each Lender
under each Loan Agreement, the due and punctual payment of the
principal of and interest on all indebtedness then outstanding under
each Loan Agreement and the
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performance of every covenant of each Loan Agreement on the part
of the Corporation to be performed or observed and shall be subject to
the restrictions set forth in this Certificate, (b) immediately after
giving effect to such transaction, no default or event of default under
any Loan Agreement shall have occurred and be continuing and (c) the
Corporation shall have delivered to each Lender under each Loan
Agreement an officers' certificate and an opinion of counsel, each
stating that such consolidation, merger, conveyance or transfer and
such supplement comply with the Loan Agreement and that all conditions
precedent provided for in each such Loan Agreement relating to such
transaction have been complied with.
Upon any consolidation or merger, or any conveyance or transfer of
the properties and assets of the Corporation substantially as provided
above, the entity formed by or surviving such consolidation or merger
(if other than the Corporation) or the entity to which such conveyance
or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Corporation under each Loan
Agreement with the same effect as if such entity had been named as the
"Issuer" or "Borrower" therein. In the event of any conveyance or
transfer, the entity named as the "Issuer" or "Borrower" in each such
Loan Agreement or any successor that shall theretofore have become such
in the manner prescribed in each such Loan Agreement may be dissolved,
wound-up and liquidated at any time thereafter, and such entity
thereafter shall be released from its liabilities as obligor and maker
on all of the indebtedness, and from its obligations under the Loan
Agreements.
(iv) The Corporation shall not dissolve or liquidate, in whole or
in part.
(v) The Corporation shall not amend, alter, change or repeal any
provision contained in this Article VIII, Article IX or Article X
without (a) the affirmative vote in favor thereof of eighty percent
(80%) of the then outstanding stock and (b) either (i) the prior
written consent of each trustee under any indenture or other agreement
pursuant to which publicly offered or privately placed debt or other
securities of the Corporation or of any subsidiary thereof or business
trust formed thereby has been issued and remains outstanding or (ii) if
such securities are rated by a nationally recognized statistical rating
agency, the prior delivery by each such rating agency of a letter to
the effect that such amendment, alteration, change or repeal will not
result in the qualification, reduction, or withdrawal of the applicable
ratings of such securities.
ARTICLE IX
COVENANTS REGARDING OPERATIONS
The Corporation shall conduct its affairs in accordance with the
following provisions:
(i) The Corporation shall establish an office through which its
business will be conducted separately and apart from that of any person
or entity which is
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the owner of more than 50% of its outstanding stock, currently
Shearson Lehman Hutton Inc. (the "Parent") (although the Parent may
lease space to the Corporation).
(ii) The Corporation shall maintain separate corporate records and
books of account from those of the Parent. The books of the Corporation
may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the Bylaws
of the Corporation.
(iii) The Corporation's funds shall not be commingled with those
if its Parent or any of its subsidiaries of affiliates other than the
Corporation.
(iv) The Corporation's Board of Directors shall hold appropriate
meetings to authorize all of its corporate actions.
(v) The Corporation shall conduct its business so as not to
mislead others as to the identity of the entity with which they are
concerned.
(vi) The Corporation shall provide for its operating expenses and
liabilities from its own funds, which may include funds borrowed from
affiliates (other than its Parent) (although certain organizational
expenses of the Corporation may be paid by its Parent).
(vii) The Corporation shall, when appropriate, obtain proper
authorization from its Directors or stockholders for corporate action.
(viii) The Corporation shall act solely in its corporate name and
through its duly authorized officers or agents in the conduct of its
business.
(ix) The Corporation shall not hold itself out as being liable for
the debts of any other entity (except as may be implicit in a
subordination agreement executed in connection with the issuance of
Bonds) and shall not permit the Parent to hold itself out as liable for
the debts of the Corporation.
(x) Each of the Corporation and the Parent shall maintain an
arm's-length relationship with the other.
(xi) The Corporation shall not commence any case, proceeding or
other action relating to bankruptcy, insolvency, reorganization or
relief of debtors, or seek to have an order for relief entered with
respect to it, or seek to adjudicate it a bankrupt or insolvent, or
seek reorganization, arrangement, winding up, liquidation, dissolution,
composition or other relief with respect to it or its debts or make a
general assignment for the benefit of creditors without the unanimous
vote of the entire Board of Directors, including the affirmative vote
of each Independent Director.
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ARTICLE X
AMENDMENTS
If the indebtedness under a Loan Agreement is given a rating by a
nationally recognized statistical rating agency, this Certificate of
Incorporation may not be amended prior to notice being given by registered or
certified mail to such rating agency. In addition, no additional indebtedness
may be incurred by the Corporation, other than indebtedness described in
paragraph (b), (c) or (d) of Article III hereof.
ARTICLE XI
TRANSFER OF ASSETS
The Corporation may not transfer all or substantially all of its assets
to a transferee unless such transferee is subject to the restrictions contained
in this Certificate. A pledge of its assets in connection with the issuance of
debt shall not be considered such a transfer. Additionally, the Corporation may
transfer any residual interest it may have in assets so pledged to any third
person and such transfer shall not constitute a transfer subject to this
Article.
ARTICLE XII
SPECIAL COVENANTS FROM LENDERS
The Corporation shall receive a covenant from all creditors, other than
Lenders, prior to incurring debt, that no petition in bankruptcy shall be filed
against the Corporation until at least 90 days have expired since payment in
full to the lenders.
The foregoing Restated Certificate was duly adopted in accordance with
the provisions of Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware.
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IN WITNESS WHEREOF, Structured Asset Securities Corporation has caused
this Restated Certificate of Incorporation to be duly executed in its corporate
name this 23rd day of October, 1998.
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Jennifer Marre
-----------------------------------
Name: Jennifer Marre
Title: Secretary
ATTEST:
By: /s/ Felicity Fridman
--------------------------------
Name: Felicity Fridman
Title: Assistant Secretary
<PAGE>
Exhibit Z
BYLAWS
OF
STRUCTURED ASSET SECURITIES CORPORATION
ARTICLE I
OFFICES
Section 1. Structured Asset Securities Corporation (the
"Corporation") shall maintain a registered office in the State of Delaware. The
Corporation may also have other offices at such places, either within or without
the State of Delaware, as the Board of Directors may from time to time designate
or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Annual Meetings. The annual meeting of the
stockholders for the election of directors and for the transaction of such other
business as may come before the meeting shall be held on such date and at such
time and place within or without the State of Delaware as may be designated by
the Board of Directors.
Section 2.2 Special Meetings. Special meetings of the
stockholders for any purpose or purposes, unless otherwise prescribed by
statute, may be called at any time by the President or by order of the Board of
Directors and shall be called by the President or Secretary upon the request in
writing of a stockholder or stockholders holding of record at least one-fourth
of the outstanding shares of stock of the Corporation entitled to vote at such
meeting. Any such written request of a stockholder or stockholders shall state a
proper purpose or purposes of the meeting and shall be delivered to the
President or Secretary.
Section 2.3 Place of Meeting. Each meeting of stockholders of
the Corporation, whether annual or special, shall be held on such date and at
such time and place within or without the State of Delaware as shall be fixed by
the Board of Directors and specified in the notice or waiver of notice of said
meeting.
Section 2.4 Notice of Meetings. Except as otherwise provided
by law, notice of each meeting of the stockholders shall be given to each
stockholder of record entitled to vote at such meeting, whether annual or
special, not less than 10 nor more than 60 days before the day on which the
meeting is to be held, by delivering a typewritten or printed notice thereof to
him or her personally, or by mailing such notice in a postage prepaid envelope
addressed to him or her at his or her post office address furnished by him or
her to the Secretary of the Corporation for such purpose, or, if he or she shall
not have furnished to the Secretary of the Corporation his or her address for
such purpose, then at his or her post office address last known to the Secretary
of the Corporation. Each such notice shall state the purpose or purposes for
which the meeting is called, and the date and time when, and the place where
such meeting is to be held. Except
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where expressly required by law, no publication of any notice of a meeting of
stockholders shall be required. Notice of any meeting of stockholders shall not
be required to be given to any stockholder who shall attend such meeting in
person or by proxy. Notice of any adjourned meeting of the stockholders shall
not be required to be given, except where expressly required by law.
Section 2.5 Quorum. At each meeting of the stockholders, except where
other provision is made by law, the presence, in person or by proxy, of the
holders of record of a majority of the issued and outstanding stock of the
Corporation entitled to vote at such meeting shall constitute a quorum for the
transaction of business. In the absence of a quorum, a majority in interest of
the stockholders of the Corporation present in person or by proxy and entitled
to vote or, in the absence of any stockholder entitled to vote, any officer
entitled to preside at, or act as Secretary of, such meeting, shall have the
power to adjourn the meeting from time to time, until stockholders holding the
requisite amount of stock shall be present or represented. At any such adjourned
meeting at which a quorum shall be present, any business may be transacted which
might have been transacted at the meeting as originally called.
Section 2.6 Voting. At each meeting of the stockholders, every
stockholder of record of the Corporation entitled to vote at such meeting shall
be entitled to one vote in person or by proxy for each share of stock of the
Corporation registered in his or her name on the books of the Corporation (a) on
the date fixed pursuant to Section 7.3 of the Article VII of these Bylaws as the
record date for the determination of stockholders entitled to vote at such
meeting; or (b) if no such record date shall have been fixed, then as of the
close of business on the day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held. Any vote on stock of the Corporation may be given
by the stockholder entitled thereto in person or by proxy appointed by an
instrument in writing, including without limitation a telegraph or a cable,
subscribed by such stockholder or by his or her attorney thereunto authorized
and delivered to the Secretary of the meeting; provided, however, that no proxy
shall be voted on after three years from its date unless said proxy provides for
a longer period. At all meetings of the stockholders, all matters (except where
other provision is made by law or by the Certificate of Incorporation of the
Corporation) shall be decided by a majority of the votes cast by the holders of
the stock present in person or by proxy and entitled to vote thereat, a quorum
being present.
Section 2.7 List of Stockholders. It shall be the duty of the Secretary
or other officer of the Corporation who shall have charge of its stock ledger,
either directly or through a transfer agent or transfer clerk appointed by the
Board of Directors, to prepare and make, at least 10 days before every meeting
of the stockholders for the election of directors of the Corporation, a complete
list of the stockholders entitled to vote thereat, arranged in alphabetical
order and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder during ordinary business hours, for a period of
at least 10 days prior to the election, either at a place within the city, town
or village where the election is to be held and which place shall be specified
in the notice of meeting, or, if not so specified, at the place where said
meeting is to be held, and the list shall be produced and kept at the time and
place of said meeting during the whole time thereof and subject to the
inspection of any stockholder who shall be present thereat. Upon the willful
neglect or refusal of the directors to produce such list at any election, they
shall be
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ineligible for any office at such election. The original or duplicate stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine such list or the books of the Corporation or to vote in person or by
proxy at such election.
Section 2.8 Judges of Election. The Board of Directors may appoint
judges of election to serve at any election of directors and at balloting on any
other matter that may properly come before a meeting of stockholders. If no such
appointment shall be made, or if any of the judges so appointed shall fail to
attend, or refuse or be unable to serve, then such appointment may be made by
the presiding officers at the meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers. The property, affairs and business of the
Corporation shall be managed by or under the direction of the Board of
Directors.
Section 3.2 Number, Election, Qualifications and Term of Office. The
number of directors shall be as fixed from time to time by resolution of the
Board of Directors or stockholders (and such resolutions of either the Board of
Directors or stockholders being subject to the later resolution of either of
them). Until changed as provided herein, the initial Board of Directors and all
subsequent boards of directors shall consist of that number of directors set
forth in the Certificate of Incorporation. Except as otherwise provided in the
Certificate of Incorporation or in these Bylaws, directors shall be elected by a
plurality of the votes of the stockholders entitled to vote at each meeting of
stockholders for the election of a director or directors. Directors need not be
stockholders. Each director shall hold office until his or her successor shall
have been duly elected and qualified, or until his or her death, or until he or
she shall resign, or until he or she shall have been removed in the manner
hereinafter provided.
Section 3.3 Resignation. Any directors of the Corporation may resign at
any time by giving written notice to the President or to the Secretary of the
Corporation. The resignation of any director shall take effect at the time
specified therein; and, unless otherwise specified therein the acceptance of
such resignation shall not be necessary to make it effective.
Section 3.4 Removal of Directors. Any director or the entire Board of
Directors may be removed, either with or without cause, at any time by the
holders of a majority of the shares then entitled to vote at an election of
directors, except in the case that the Certificate of Incorporation of the
Corporation provides for cumulative voting, then if less than the entire board
is to be removed, no director may be removed without cause if the votes cast
against his or her removal would be sufficient to elect him or her if then
cumulatively voted at an election of the entire Board of Directors. Any vacancy
in the Board of Directors caused by any such removal may be filled by a
plurality of the votes of the stockholders at such meeting, or, if the
stockholders shall fail to fill such vacancy, by the Board of Directors.
Section 3.5 Vacancies. Any vacancy in the Board of Directors caused by
death, resignation, disqualification, removal, an increase in the number of
directors, or any other cause, may be filled by the affirmative vote of a
majority of the remaining directors (though less than a
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quorum), unless filled by the stockholders pursuant to Section 3.4 hereof; and
each director so chosen shall hold office until his or her successor shall be
duly elected and qualified or until his or her earlier death, resignation or
removal.
Section 3.6 Place of Meetings, Etc. Except as otherwise specifically
provided by law, the Board of Directors may hold its meetings, have one or more
offices and keep the books and records of the Corporation at such place or
places within or without the State of Delaware as the Board of Directors may
from time to time determine.
Section 3.7 First Meeting. Within thirty (30) days after each annual
election of directors, the Board of Directors shall meet for the purpose of
organization, the election of officers and the transaction of other business at
the place where regular meetings of the Board of Directors are held. Notice of
such meeting shall be given in the manner hereinafter provided for special
meetings of the Board of Directors or in a consent and waiver of notice thereof
signed by all the directors.
Section 3.8 Regular Meetings. Regular meetings of the Board of
Directors may be held at such places and at such times as the Board shall
determine. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting which would
otherwise be held on that day shall be held at such place at the same hour and
on the next succeeding business day not a legal holiday. Notice of regular
meetings need not be given, provided that, whenever the time or place of regular
meetings shall be fixed or changed, notice of such action shall be mailed
promptly to each director who shall not have been present at the meeting at
which such action was taken, addressed to him or her at his or her residence or
usual place of business.
Section 3.9 Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the President or by one of the
directors. At least three calendar days before the day on which any special
meeting is to be held, notice of such meeting shall be sent to each director by
first class mail, addressed to him or her at his or her residence or usual place
of business, or shall be sent to him or her at such place by telegraph, cable or
wireless or shall be delivered personally or by telephone at least one day
before the day on which the meeting is to be held. Each such notice shall state
the time and place of the meeting but need not state the purposes thereof,
except as otherwise herein expressly provided. Notice of any meeting of the
Board of Directors need not be given to any director who shall be present at
such meeting or who shall, either before or after such meeting, waive notice of
such meeting in writing or by telegram, radio, cable or telephone; and any
meeting of the Board of Directors shall be a legal meeting without any notice
thereof having been given if all of the directors of the Corporation then in
office shall be present thereat.
Section 3.10 Quorum and Manner of Acting. Except as otherwise provided
by statute or by these Bylaws, one-third of the total number of directors shall
be required to constitute a quorum for the transaction of business at any
meeting, and the act of a majority of the directors present at any meeting at
which a quorum shall be present shall be the act of the Board of Directors. In
the absence of a quorum, a majority of the directors present may adjourn any
meeting from time to time until a quorum be had. Notice of any adjourned meeting
need not be given, except as required by law.
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Section 3.11 Remuneration. Directors shall receive such reasonable
compensation for their services, as such, whether in form of a salary or a fixed
fee for attendance at meetings, with expenses, if any, as the Board of Directors
may from time to time determine. Nothing herein contained shall be construed so
as to preclude any director from serving the Corporation in any other capacity
and receiving remuneration therefor.
Section 3.12 Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all members of the Board or of such
committee, as the case may be, consent thereto in writing and such writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 3.13 Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
subsection shall constitute presence in person at such meeting.
ARTICLE IV
COMMITTEES
Section 4.1 Designation of Committees, Alternate Members and Term of
Office. The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, including an executive committee,
each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who, in the order specified by the Board, may replace any
absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member or members of a committee, and in the event there
are not sufficient alternate members present at such meeting, the member or
members thereof, including alternates, present at any meeting and not
disqualified from voting, whether or not he, she or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. The term of
office of the members of each committee shall be as fixed from time to time by
the Board, subject to these Bylaws; provided, however, that any committee member
who ceases to be a member of the Board shall ipso facto cease to be a committee
member. Each committee shall appoint a secretary, who may be the Secretary of
the Corporation or any Assistant Secretary thereof.
Section 4.2 Powers of Committees. Any committee designated by the Board
of Directors pursuant to Section 4.1 hereof, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the
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stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending these Bylaws of the Corporation; and, unless the resolution so
provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
Section 4.3 Meetings, Notices and Records. Each committee may provide
for the holding of regular meetings, with or without notice, and may fix the
time and place at which such meetings shall be held. Special meetings of each
committee shall be held upon call by or at the direction of its chairman or, if
there be no chairman, by or at the direction of any two of its members, at the
time and place specified in the respective notices or waivers of notice thereof.
Notice of each special meeting of a committee shall be mailed to each member of
such committee, addressed to him or her at his or her residence or usual place
of business, at least one day before the day on which the meeting is to be held,
or shall be sent by telegram, radio or cable, addressed to him or her at such
place, or telephoned or delivered to him or her personally, not later than the
day before the day on which the meeting is to be held. Notice of any meeting of
a committee need not be given to any member thereof who shall attend the meeting
in person or who shall waive notice thereof by telegram, radio, cable or other
writing. Notice of any adjourned meeting need not be given. Each committee shall
keep a record of its proceedings.
Section 4.4 Quorum and Manner of Action. At each meeting of any
committee the presence of one-third of its members then in office shall be
necessary and sufficient to constitute a quorum for the transaction of business,
and the act of a majority of the members present at any meeting at which a
quorum is present shall be the act of such committee; in the absence of a
quorum, a majority of the members present at the time and place of any meeting
may adjourn the meeting from time to time until a quorum shall be present.
Subject to the foregoing and other provisions of these Bylaws and except as
otherwise determined by the Board of Directors, each committee may make rules
for the conduct of its business. Any determination made in writing and signed by
all the members of such committee shall be as effective as if made by such
committee at a meeting.
Section 4.5 Resignations. Any member of a committee may resign at any
time by giving written notice of such resignation to the Board of Directors, the
President or the Secretary of the Corporation. Unless otherwise specified in
such notice, such resignation shall take effect upon receipt thereof by the
Board or any such officer.
Section 4.6 Removal. Any member of any committee may be removed at any
time by the Board of Directors with or without cause.
Section 4.7 Vacancies. If any vacancy shall occur in any committee by
reason of death, resignation, disqualification, removal or otherwise, the
remaining members of such committee, though less than a quorum, shall continue
to act until such vacancy is filled by the Board of Directors.
Section 4.8 Compensation. Committee members shall receive such
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any committee member from servicing the
Corporation in any other capacity and receiving compensation therefor.
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ARTICLE V
OFFICERS
Section 5.1 Number. The officers of the Corporation shall be a
President, one or more Executive Vice Presidents, one or more Vice Presidents, a
Secretary, a Treasurer and, if the Board shall so elect, such other officers and
agents as may be appointed by the Board of Directors pursuant to Section 5.3
hereof. Any two or more offices may be held by the same person.
Section 5.2 Election, Term of Office and Qualifications. The officers
shall be elected annually by the Board of Directors and, except in the case of
officers appointed in accordance with the provisions of Section 5.3 hereof, each
shall hold office until the next annual election of officers or until his or her
successor shall have been duly elected and qualified, or until his or her death,
or until he or she shall resign, or until he or she shall have been removed in
the manner hereinafter provided.
Section 5.3 Other Officers. The Corporation may have such other
officers and agents as may be deemed necessary by the Board of Directors,
including without limitation one or more Assistant Secretaries and one or more
Assistant Treasurers. Such other officers and agents shall be appointed in such
manner, have such duties and hold their offices for such terms as may be
determined by the Board of Directors. The Board of Directors may delegate to any
officer or agent the power to appoint any such subordinate officers or agents
and to prescribe their respective terms of office, authorities and duties.
Section 5.4 Resignations. Any officer may resign at any time by giving
written notice of his or her resignation to the Board of Directors, to the
President or to the Secretary of the Corporation. Unless otherwise specified in
such written notice, any such resignation shall take effect at the time of
receipt thereof by the Board of Directors or any such officer.
Section 5.5 Removal. Any officer specifically designated in Section 5.1
hereof may be removed, either with or without cause, by a vote of majority of
the whole Board of Directors. Any officer or agent appointed in accordance with
the provisions of Section 5.3 hereof may be removed, either with or without
cause, by the Board of Directors at any meeting, by the vote of a majority of
the directors present at such meeting, or by any superior officer or agent upon
whom such power or removal shall have been conferred by the Board of Directors.
Section 5.6 Vacancies. A vacancy in any office by reason of death,
resignation, removal or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these Bylaws for election or
appointment to such office.
Section 5.7 The President. The President shall be the chief executive
officer of the Corporation and, subject to control by the Board of Directors,
shall have general charge of the business, affairs and property of the
Corporation and control over its several officers. He or she shall preside at
all meetings of the stockholders and of the Board of Directors and of the
Executive Committee at which he or she shall be present. He or she shall see
that all orders and resolutions of the Board of Directors are carried into
effect. He or she may sign, with the
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Secretary or any other officer thereunto duly authorized by the Board of
Directors, certificates for shares of stock of the Corporation, deeds,
mortgages, bonds, contracts, agreements or other instruments duly authorized by
the Board of Directors except in cases where the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent. From time to time he or she shall report to the Board of Directors all
matters within his or her knowledge which the interests of the Corporation may
require to be brought to their attention. The President shall do and perform all
such other duties and may exercise such other powers as from time to time may be
assigned to him or her by these Bylaws or by the Board of Directors or by the
Executive Committee or by the Executive Committee. The officers of the
Corporation shall be responsible to the President for the proper and faithful
discharge of their several duties and shall make such reports to him or her as
he or she may from time to time require.
Section 5.8 Executive Vice Presidents. In the event of the death,
absence, unavailability or disability of the President or at the request of the
President, the Executive Vice President or, in case there shall be more than one
Executive Vice President, the Executive Vice President designated by the
President (or in the absence of such designation, the Executive Vice President
designated by the Board of Directors) shall perform all the duties of the
President and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the President. Except where by law the signature of
the President is required, each of the Executive Vice Presidents shall possess
the same power as the President to sign all certificates, contracts, obligations
and other instruments of the Corporation. Any Executive Vice President shall
perform such other duties and may exercise such other powers as from time to
time may be assigned to him or her by these Bylaws or by the Board of Directors
or by the Executive Committee or by the President.
Section 5.9 The Vice Presidents. The Vice Presidents shall exercise
such powers as may be assigned to them from time to time by the Board of
Directors or by the Executive Committee or by the President.
Section 5.10 The Secretary and the Assistant Secretaries. The Secretary
shall:
(a) Keep the minutes of the meetings of the stockholders, the
Board of Directors and the Executive Committee, and cause the same to be
recorded in books provided for that purpose;
(b) Prepare, or cause to be prepared, and submit to the
Chairman of each meeting of the stockholders a certified list, in alphabetical
order, of the names of the stockholders entitled to vote at such meeting,
together with the number of shares of stock held by each;
(c) See that all notices are duly given in accordance with
provisions of these Bylaws or as required by statute;
(d) Be custodian of the records of the Corporation, the Board
of Directors and the Executive Committee, and of the seal of the Corporation;
see that the seal is affixed to all stock certificates prior to their issuance
and to all documents the execution of which
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on behalf of the Corporation under its seal shall have been duly authorized,
and attest the seal when so affixed;
(e) See that all books, reports, statements, certificates and
the other documents and records required by law to be kept or filed are properly
kept or filed;
(f) In general, perform all duties and have all powers
incident to the office of the Secretary and perform such other duties and have
such other powers as from time to time may be assigned to him or her by these
Bylaws or by the Board of Directors or by the President;
(g) Whenever any committee shall be appointed in pursuance of
a resolution of the Board of Directors, furnish the chairman of such committee
with a copy of such resolution;
(h) Have charge of the stock and transfer books of the
Corporation, and exhibit such stock book at all reasonable times to such persons
as are entitled by statute to have access thereto; and
(i) Sign (unless the Treasurer or any Assistant Secretary or
an Assistant Treasurer shall sign) certificates representing stock of the
corporation the issuance of which shall have been duly authorized (the signature
to which maybe a facsimile signature).
At the request of the Secretary, or in his or her absence or
disability, any Assistant Secretary shall perform any of the duties of the
Secretary and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the Secretary. Except where by law the signature of
the Secretary is required, each of the Assistant Secretaries shall possess the
same power as the Secretary to sign certificates, contracts, obligations and
other instruments of the Corporation, and to affix the seal of the Corporation
to such instruments, and attest the same. The Assistant Secretaries shall
perform such other duties as from time to time may be assigned to them
respectively by the Board of Directors, the President or the Secretary.
Section 5.11 The Treasurer and the Assistant Treasurers. The Treasurer
shall:
(a) Have charge of and supervision over and be responsible for
the funds, including the borrowing thereof, the securities, receipts and
disbursements of the Corporation;
(b) Cause all moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of the Corporation in
such banks or trust companies or with such bankers or other depositories as
shall be selected by the Board of Directors or Executive Committee, or pursuant
to authority conferred by the Board of Directors or Executive Committee;
(c) Cause the funds of the Corporation to be disbursed by
checks or drafts upon the authorized depositories of the Corporation;
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(d) Cause to be taken and preserved proper vouchers for all
moneys disbursed;
(e) Cause to be kept correct books of account of all the
business and transactions of the Corporation and upon application cause such
books of account to be exhibited to any director;
(f) Render to the President, the Board of Directors of the
Executive Committee, whenever requested, an account of the financial conditions
of the Corporation and of his or her transactions at Treasurer;
(g) Be empowered, from time to time, to require from the
officers or agents of the Corporation reports or statements giving such
information as he or she may desire with respect to any and all financial
transactions of the Corporation;
(h) Sign (unless the Secretary or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation the issuance of which shall have been duly authorized (the signature
to which may be a facsimile signature); and
(i) In general, perform all duties and have all powers
incident to the office of Treasurer and perform such other duties and have such
other powers as from time to time may be assigned to him or her by these Bylaws
or by the Board of Directors or by the President.
At the request of the Treasurer or, in his or her absence or
disability, the Assistant Treasurer or, in case there shall be more than one
Assistant Treasurer, the Assistant Treasurer designated by the Board of
Directors or by the Executive Committee or by the President shall perform any of
the duties of the Treasurer and, when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Treasurer. Except where by law
the signature of the Treasurer is required, each of the Assistant Treasurers
shall possess the same power as the Treasurer to sign all certificates,
contracts, obligations and other instruments of the Corporation. The Assistant
Treasurers shall perform such other duties as from time to time may be assigned
to them respectively by the Board of Directors, the President or the Treasurer.
Section 5.12 Salaries. The salaries of the officers shall be fixed from
time to time by the Board of Directors, except that the Board of Directors may
delegate to any person the power to fix the salaries or other compensation of
any officers or agents appointed in accordance with the provisions of Section
5.3 hereof. No officer shall be prevented from receiving such salary by reason
of the fact that he or she is also a director of the Corporation.
Section 5.13 Surety Bonds. If the Board of Directors shall so require,
any officer or agent of the Corporation shall execute to the Corporation a bond
in such sum and with such surety or sureties as the Board of Directors may
direct, conditioned upon the faithful discharge of his or her duties, including
responsibility for negligence and for the accounting for all property, funds or
securities of the Corporation which may come into his or her hand.
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ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS AND PROXIES
Section 6.1 Contracts, Checks, Etc. All contracts and agreements
authorized by the Board of Directors, and all checks, drafts, bills of exchange
or other orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation shall be signed by such
officer or officers, or agent or agents, as may from time to time be designated
by the Board of Directors, which designation may be general or confined to
specific instances. The President, an Executive Vice President or a Vice
President and the Treasurer shall have the power and authority to bind the
Corporation by contract or engagement or to pledge its credit or to render it
liable pecuniarily for any purpose or for any amount; and no other officer,
agent or employee of the Corporation shall have any such power and authority
unless so designated by the Board of Directors or in or pursuant to the
provisions of these Bylaws.
Section 6.2 Proxies in Respect of Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of Directors, the
President or an Executive Vice President may from time to time appoint an
attorney or attorneys, or an agent or agents, to exercise in the name and on
behalf of the Corporation the powers and rights which the Corporation may have
as the holder of stock or other securities in any other corporation to vote or
to consent in respect of such stock or other securities; and the President or
any Executive Vice President may instruct the person or persons so appointed as
to the manner or exercising such powers and rights and the President or any
Executive Vice President may execute or cause to be executed in the name and on
behalf of the Corporation and under its corporate seal, or otherwise, all such
written proxies, power of attorney or other written instruments as he or she may
deem necessary in order that the Corporation may exercise such powers and
rights.
Section 6.3 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to its credit in such banks or
trust companies or with such bankers or other depositaries as the Board of
Directors may select, or as may be selected by any officer or officers or agent
or agents authorized so to do by the Board of Directors. Endorsements for
deposit to the credit of the Corporation in any of its duly authorized
depositaries shall be made in such manner as the Board of Directors from time to
time may determine.
ARTICLE VII
CERTIFICATES OF STOCK
Section 7.1 Form; Signature. The certificates of stock of the
Corporation shall be numbered and shall be entered in the books of the
Corporation as they are issued. They shall exhibit the holder's name and number
of shares and shall be signed by the President, Executive Vice President or a
Vice President and the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary.
Section 7.2 Transfer. Transfers of stock shall be made on the books of
the Corporation only by the person named in the certificate or by his or her
attorney, lawfully constituted in writing, and upon surrender of the certificate
therefor.
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Section 7.3 Record Dates. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may, in its discretion, fix, in
advance, a record date, which shall be not more than 60 nor less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action. Only those stockholders of record on the date so fixed shall be entitled
to any of the foregoing rights, notwithstanding the transfer of any such stock
on the books of the Corporation after any such record date fixed by the Board of
Directors. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 7.4 Closing of Transfer Books. The Board of Directors may close
the transfer books in its discretion for a period not exceeding 60 days
preceding any meeting, annual or special, of the stockholders or the day
appointed for the payment of a dividend.
Section 7.5 Record Owner. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person, whether or
not it shall have express or other notice thereof, unless the laws of Delaware
expressly provide otherwise.
Section 7.6 Lost Certificates. Any person claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of that
fact and advertise the same in such manner as the Board of Directors may
require, and shall if the directors so require give the Corporation a bond of
indemnity, in form and with one or more sureties satisfactory to the Board of
Directors, in at least double the value of the stock represented by said
certificate, whereupon a new certificate may be issued of the same tenor and for
the same number of shares as the one alleged to be lost or destroyed.
ARTICLE VIII
DIVIDENDS
Dividends upon the capital stock of the Corporation, when earned, may
be declared by the Board of Directors at any regular or special meeting.
Before payment of any dividend or making any distribution of profits,
there may be set aside out of the surplus or net profits of the Corporation such
sum or sums as the directors from time to time, in their absolute discretion,
think proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interests
of the Corporation.
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ARTICLE IX
RELIANCE ON RECORDS AND REPORTS
Each director, officer or member of any committee designated by, or by
authority of, the Board of Directors shall, in the performance of his or her
duties, be fully protected in relying in good faith upon the books of account or
other records of the Corporation or of any of its subsidiaries or upon reports
made to the Corporation or any of its subsidiaries by any official of the
Corporation or of a subsidiary or by an independent certified public accountant
or by an appraiser selected with reasonable care by the Board of Directors or by
any such committee.
ARTICLE X
CORPORATE SEAL
The corporate seal shall be circular in form and shall bear the name of
the Corporation and words and figures denoting its organization under the laws
of the State of Delaware and otherwise shall be in such form as shall be
approved from time to time by the Board of Directors.
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall be such 12-month period of
each calendar year as may be fixed from time to time by resolution of the Board
of Directors.
ARTICLE XII
WAIVER OF NOTICE
Whenever any notice whatsoever is required to be given by these Bylaws
or the Certificate of Incorporation of the Corporation or any of the corporate
laws of the State of Delaware, a waiver thereof in writing, signed by the person
or persons entitled to said notice, whether before of after the time stated
therein, shall be deemed equivalent thereto.
ARTICLE XIII
AMENDMENTS
The Bylaws of the Corporation, regardless of whether made by the
stockholders or by the Board of Directors, may be amended, added to or repealed
at any meeting of the Board of Directors or of the stockholders provided that
notice of the proposed change is given in the notice of the meeting. No change
of the time or place for the annual meeting of the stockholders for the election
of directors shall be made except in accordance with the laws of the State of
Delaware.
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