EXHIBIT 4
EXECUTION COPY
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STRUCTURED ASSET SECURITIES CORPORATION,
Depositor,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer and Special Servicer,
LASALLE NATIONAL BANK,
Trustee,
and
ABN AMRO BANK N.V.,
Fiscal Agent
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POOLING AND SERVICING AGREEMENT
Dated as of October 11, 1997
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Commercial Mortgage Pass-Through Certificates
Series 1997-LL I
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms................................................3
SECTION 1.02. Certain Calculations........................................50
SECTION 1.03. Certain Constructions.......................................51
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Loan
Sale Agreement..............................................52
SECTION 2.02. Acceptance by Custodian and the Trustee.....................55
SECTION 2.03. Representations and Warranties of the Depositor.............56
SECTION 2.04. Representations, Warranties and Covenants of the
Master Servicer and Special Servicer........................68
SECTION 2.05. Execution and Delivery of Certificates; Issuance
of Lower-Tier Regular Interests.............................70
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions............71
ARTICLE III
ADMINISTRATION AND SERVICING OF THE
MORTGAGE LOANS
SECTION 3.01. Master Servicer to Act as Master Servicer;
Special Servicer to Act as Special Servicer;
Administration of the Mortgage Loans........................72
SECTION 3.02. Liability of the Master Servicer and Special
Servicer....................................................74
SECTION 3.03. Collection of Certain Mortgage Loan Payments................75
SECTION 3.04. Collection of Taxes, Assessments and Similar
Items; Escrow Accounts......................................75
SECTION 3.05. Collection Account; Upper-Tier Distribution
Account; Lower-Tier Distribution Account; Class T
Distribution Account; and Excess Interest
Distribution Account........................................77
SECTION 3.06. Permitted Withdrawals from the Collection Account...........89
SECTION 3.07. Investment of Funds in the Collection Account,
the REO Account, the Interest Reserve Account,
the Borrower Accounts, and Other Accounts...................81
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SECTION 3.08. Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage.............................83
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions...........................86
SECTION 3.10. Realization Upon Defaulted Mortgage Loans...................89
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.............94
SECTION 3.12. Servicing Fees, Trustee Fees and Special
Servicing Compensation......................................95
SECTION 3.13. Reports to the Trustee; Collection Account
Statements..................................................97
SECTION 3.14. Annual Statement as to Compliance..........................101
SECTION 3.15. Annual Independent Public Accountants' Servicing
Report.....................................................102
SECTION 3.16. Access to Certain Documentation............................102
SECTION 3.17. Title and Management of REO Properties.....................103
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO
Properties.................................................106
SECTION 3.19. Additional Obligations of the Master Servicer;
Inspections; Successor Manager.............................109
SECTION 3.20. Reports to the Securities and Exchange
Commission; Available Information..........................110
SECTION 3.21. Lock-Box Accounts, Escrow Accounts and Reserve
Accounts...................................................115
SECTION 3.22. Property Advances..........................................115
SECTION 3.23. Appointment of Special Servicer............................116
SECTION 3.24. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping...........................117
SECTION 3.25. Interest Reserve Account...................................118
SECTION 3.26. Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to
Specific Mortgage Loans....................................119
SECTION 3.27. Modifications..............................................122
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..............................................125
SECTION 4.02. Statements to Certificateholders; Available
Information; Information Furnished to Financial
Market Publisher...........................................132
SECTION 4.03. Compliance with Withholding Requirements...................138
SECTION 4.04. REMIC Compliance...........................................138
SECTION 4.05. Imposition of Tax on the Trust Fund........................141
SECTION 4.06. Remittances; P&I Advances..................................142
SECTION 4.07. Grantor Trust Reporting....................................144
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...........................................145
SECTION 5.02. Registration, Transfer and Exchange of
Certificates...............................................149
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates..........157
SECTION 5.04. Appointment of Paying Agent................................157
SECTION 5.05. Access to Certificateholders' Names and Addresses..........157
SECTION 5.06. Actions of Certificateholders..............................158
SECTION 5.07. Authenticating Agent.......................................158
SECTION 5.08. Appointment of Custodians..................................159
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER
AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer
and the Special Servicer...................................161
SECTION 6.02. Merger or Consolidation of the Master Servicer.............161
SECTION 6.03. Limitation on Liability of the Depositor, the
Master Servicer and Others.................................161
SECTION 6.04. Limitation on Resignation of the Master Servicer
or Special Servicer........................................162
SECTION 6.05. Rights of the Depositor and the Trustee in
Respect of the Master Servicer and Special
Servicer...................................................163
SECTION 6.06. Master Servicer or Special Servicer as Owner of a
Certificate................................................164
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default..........................................166
SECTION 7.02. Trustee to Act; Appointment of Successor...................170
SECTION 7.03. Notification to Certificateholders.........................171
SECTION 7.04. Other Remedies of Trustee..................................172
SECTION 7.05. Waiver of Past Events of Default; Termination..............172
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee..........................................174
SECTION 8.02. Certain Matters Affecting the Trustee......................176
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage
Loans......................................................178
SECTION 8.04. Trustee May Own Certificates...............................180
SECTION 8.05. Payment of Trustee Fees and Expenses;
Indemnification............................................180
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SECTION 8.06. Eligibility Requirements for Trustee.......................182
SECTION 8.07. Resignation and Removal of the Trustee.....................182
SECTION 8.08. Successor Trustee and Fiscal Agent.........................184
SECTION 8.09. Merger or Consolidation of Trustee.........................185
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..............185
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal
Agent......................................................186
ARTICLE IX
TERMINATION; OPTIONAL MORTGAGE LOAN
PURCHASE
SECTION 9.01. Termination; Optional Mortgage Loan Purchase...............188
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts...............................................192
SECTION 10.02. Limitation on Rights of Certificateholders.................192
SECTION 10.03. Governing Law..............................................193
SECTION 10.04. Notices....................................................193
SECTION 10.05. Severability of Provisions.................................194
SECTION 10.06. Notice to the Depositor and Each Rating Agency.............195
SECTION 10.07. Amendment..................................................196
SECTION 10.08. Confirmation of Intent.....................................198
SECTION 10.09. No Intended Third-Party Beneficiaries......................199
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TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class X-1 Certificate
Exhibit A-5 Form of Class B Certificate
Exhibit A-6 Form of Class C-1 Certificate
Exhibit A-7 Form of Class C-2 Certificate
Exhibit A-8 Form of Class X-2 Certificate
Exhibit A-9 Form of Class D Certificate
Exhibit A-10 Form of Class E Certificate
Exhibit A-11 Form of Class F Certificate
Exhibit A-12 Form of Class T Certificate
Exhibit A-13 Form of Class R Certificate
Exhibit A-14 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Securities Legend
Exhibit G Loan Sale Agreement
Exhibit H Form of Monthly Distribution Statement
Exhibit I Form of Comparative Financial Status Report
Exhibit J Form of Delinquent Loan Status Report
Exhibit K Form of Historical Loan Modification Report
Exhibit L Form of Historical Loss Estimate Report
Exhibit M Form of REO Status Report
Exhibit N Form of Watch List
Exhibit O Form of NOI Adjustment Worksheet
Exhibit P Form of Operating Statement Analysis
Exhibit Q Schedule of Exceptions to Representations and Warranties
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Pooling and Servicing Agreement, dated as of October 10, 1997, among
Structured Asset Securities Corporation, as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT
(Terms used but not defined in this Preliminary
Statement shall have the meanings
specified in Article I hereof)
The Depositor intends to sell pass-through certificates issued
hereunder in multiple classes which in the aggregate evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans. As provided herein, the Trustee will elect that the Trust Fund,
exclusive of the Lock-Box Accounts, Reserve Accounts, the Default Interest, the
Class T Distribution Account, the Excess Interest and the Excess Interest
Distribution Account (such portion of the Trust Fund, the "Trust REMICs"), be
treated for federal income tax purposes as two separate real estate mortgage
investment conduits (each, a "REMIC" or, in the alternative, the "Upper-Tier
REMIC" and the "Lower-Tier REMIC," respectively). The Class X-0, Xxxxx X-0,
Class A-3, Class X-1, Class B, Class C-1, Class C-2, Class X-2, Class D, Class E
and Class F Certificates represent "regular interests" in the Upper-Tier REMIC.
The Class R Certificates constitute the sole class of "residual interests" in
the Upper-Tier REMIC for purposes of the REMIC Provisions. The Class LR
Certificates constitute the sole class of "residual interests" in the Lower-Tier
REMIC for purposes of the REMIC Provisions. There are also nine classes of
uncertificated Lower-Tier Regular Interests issued under this Agreement (the
Class LA-1, Class XX-0, Xxxxx XX-0, Class LB, Class LC-1, Class LC-2, Class LD,
Class LE and Class LF Interests), each of which constitutes a regular interest
in the Lower-Tier REMIC. All such Lower-Tier Regular Interests are held by the
Trustee as assets of the Upper-Tier REMIC. The parties intend that the portions
of the Trust Fund representing assets of the Grantor Trust, including the Net
Default Interest, the Class T Distribution Account, the Excess Interest and the
Excess Interest Distribution Account, be treated as a grantor trust under
Subpart E of Part 1 of Subchapter J of the Code, that the Class T Certificates
represent pro rata undivided beneficial interests in the portion of the Trust
Fund consisting of the Default Interest and the Class T Distribution Account,
subject to the obligation to pay certain amounts as set forth in Section
3.05(c), and that the Class A-1, Class A-2, Class A-3, Class B, Class C-1, Class
C-2, Class D, Class E and Class F Certificates represent undivided beneficial
interests in specified portions of the Trust Fund consisting of the Excess
Interest and the Excess Interest Distribution Account.
The following table sets forth the designation and initial
Certificate Principal Amount (or, with respect to the Class X-1 and Class X-2
Certificates, Notional Amount) for each Class of Certificates (other than the
Class R, Class LR and Class T Certificates).
Initial Certificate
Principal Amount or
Class Notional Amount
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Class A-1.................... $612,000,000
Class A-2.................... $204,000,000
Class A-3.................... $168,434,000
Class X-1(1)................. $1,376,717,068
Class B...................... $114,138,000
Class C-1.................... $49,870,000
Class C-2.................... $50,000,000
Class X-2(2)................. $50,000,000
Class D...................... $114,137,000
Class E...................... $42,802,000
Class F...................... $71,336,068
(1) The initial Notional Amount of the Class X-1 Certificates is
equal to the initial Certificate Principal Amount of the Class A-1, Class A-2,
Class A-3, Class B, Class C-1, Class D, Class E and Class F Certificates.
(1) The initial Notional Amount of the Class X-2 Certificates is
equal to the initial Certificate Principal Amount of the Class C-2 Certificates.
The Class T, Class R and Class LR Certificates do not have
Certificate Principal Amounts or Notional Amounts. The Certificate Principal
Amount of any Class of Certificates outstanding at any time represents the
maximum amount which holders thereof are entitled to receive as distributions
allocable to principal from the cash flow on the Mortgage Loans and the other
assets in the Trust Fund; provided, however, that in the event that amounts
previously allocated as Realized Losses to a Class of Certificates in reduction
of the Certificate Principal Amount thereof are recovered subsequent to the
reduction of the Certificate Principal Amount of such Class to zero, such Class
may receive distributions in respect of such recoveries in accordance with the
priorities set forth in Section 4.01. As of the Cut-Off Date, the Mortgage Loans
have an aggregate Stated Principal Balance equal to $ ____________.
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
SECTION 1.01. Defined Terms
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Article.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Additional Trust Fund Expenses": (i) Unanticipated, non-Mortgage
Loan specific expenses of the Trust Fund, including indemnities and expense
reimbursements to the Trustee, indemnities and expense reimbursements to the
Master Servicer, the Special Servicer and the Depositor and federal, state and
local taxes, and tax-related expenses, specifically payable out of the Trust
Fund and (ii) any other default-related or unanticipated expense of the Trust
Fund not specifically included in the calculation of Realized Loss for which
there is no corresponding collection from a borrower.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the
aggregate amount of P&I Advances and Property Advances for which the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as applicable,
have not been reimbursed for the number of days from the date on which such
Advance was made through the date of reimbursement of the related Advance or
other such amount, less any amount of interest previously paid on such Advance;
provided, that, with respect to a P&I Advance, in the event that the related
Borrower makes payment of the amount in respect of which such P&I Advance was
made with interest at the Default Rate, the Advance Interest Amount payable to
the Master Servicer, the Trustee, the Special Servicer or the Fiscal Agent shall
be paid (i) first from the amount of Default Interest paid by the Borrower and
(ii) to the extent such amounts are insufficient therefor, from amounts on
deposit in the Collection Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as most
recently published in the "Money Rates" section of The Wall Street Journal, New
York edition, on or before the related Record Date), compounded monthly, as of
each Master Servicer Remittance Date.
"Adverse REMIC Event": As defined in Section 4.04(b)
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
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"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officers' Certificate of the Master Servicer, the Special
Servicer or the Depositor to determine whether any Person is an Affiliate of
such party.
"Affiliated Person": Any Person involved in the organization or
operation of the Depositor or an affiliate, as defined in Rule 405 of the Act,
of such Person.
"Agent Member": Members of, or participants in, the Depository.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property as
of any date of determination, the portion of the principal balance of the
related Mortgage Loan then allocated to such Mortgaged Property in accordance
with the terms of the applicable Mortgage or Loan Agreement.
"Annual Compliance Report": A report consisting of an annual
statement of compliance required by Section 3.14 hereof and an annual report of
an Independent accountant required pursuant to Section 3.15 hereof.
"Anticipated Repayment Date": With respect to each Mortgage Loan
(other than the DDR/DRA Loan, which has no Anticipated Repayment Date), the date
set forth below opposite such Mortgage Loan:
Courtyard Loan............................ April 10, 0000
Xxxxxxxxx Xxxxx Loan...................... July 10, 2004
Xxxxxxxx Loan............................. February 26, 2007
Arden Loan................................ June 11, 2004
Xxxxx Xxxxxx Loan......................... October 10, 2006
Valley View Loan.......................... October 10, 2006
Sun Communities Loan...................... September 10, 2007
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Scheduled Payment": As defined in Section 4.06.
"Applicable Procedures": As defined in Section 5.02(c)(iii).
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan as of the last day of the related Collection Period over (b) the
excess of (i) 90% of the sum of the appraised values of the related Mortgaged
Properties as determined by Updated Appraisals obtained by the Master Servicer
(the cost of which shall be advanced by the Master Servicer as a Property
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Advance) over (ii) the sum of (A) to the extent not previously advanced by the
Master Servicer, the Trustee or the Fiscal Agent, all unpaid interest on such
Mortgage Loan at a per annum rate equal to its Mortgage Rate, (B) all
unreimbursed Advances, with interest thereon at the Advance Rate in respect of
such Mortgage Loan and (C) all currently due and unpaid real estate taxes,
ground rents, if applicable, and assessments and insurance premiums and all
other amounts due and unpaid with respect to such Mortgage Loan (which taxes,
premiums and other amounts have not been the subject of an Advance by the Master
Servicer, the Trustee or the Fiscal Agent, as applicable). If no Updated
Appraisal has been obtained within the 12 months prior to the first Distribution
Date on or after an Appraisal Reduction Event has occurred, the Master Servicer
shall estimate the value of the related Mortgaged Properties (the "Master
Servicer's Appraisal Estimate") and such estimate shall be used for purposes of
determining the Appraisal Reduction Amount for such Distribution Date. If the
GMAC Commercial Mortgage Corporation is no longer the Special Servicer, the out
of pocket expenses, including the reasonable allocation of internal expenses,
which shall in no event exceed 0.015% of the then outstanding principal balance
of the related Mortgage Loan, incurred in connection with such estimate, shall
be reimbursable to the Master Servicer as a Property Advance. Within 30 days
after the Master Servicer receives notice or is otherwise aware of the Appraisal
Reduction Event, the Master Servicer shall obtain an independent MAI appraisal,
the costs of which shall be paid by the Master Servicer as a Property Advance;
provided, however, that with respect to the Appraisal Reduction Event enumerated
in clause (v) in the definition of Appraisal Reduction Event, in the event that
the Master Servicer is diligently proceeding to obtain an independent MAI
appraisal but cannot do so within such 30-day period, the Master Servicer will
have an additional 30 days to obtain an independent MAI appraisal. On the first
Distribution Date occurring on or after the delivery of such independent MAI
appraisal, the Master Servicer shall adjust the Appraisal Reduction Amount to
take into account such appraisal (regardless of whether the Updated Appraisal is
higher or lower than the Master Servicer's Appraisal Estimate). Each Appraisal
Reduction Amount shall also be adjusted with respect to the next Distribution
Date to take into account any subsequent Updated Appraisal and annual letter
updates, as of the date of each such subsequent Updated Appraisal or letter
update. Upon payment in full or liquidation of any Mortgage Loan for which an
Appraisal Reduction Amount has been determined, such Appraisal Reduction Amount
will be eliminated.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which an extension of the
Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not change the amount of Scheduled Payments on the
Mortgage Loan, (ii) 90 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (iii)
90 days after the date on which a reduction in the amount of Scheduled Payments
on the Mortgage Loan, or a change in any other material economic term of the
Mortgage Loan, becomes effective as a result of a modification of such Mortgage
Loan by the Special Servicer, (iv) 60 days after a receiver in respect of the
related Mortgaged Property has been appointed, (v) immediately after a Borrower
declares bankruptcy and (vi) immediately after a Mortgage Loan becomes an REO
Mortgage Loan. The Special Servicer shall notify the Master Servicer and
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the Master Servicer shall notify the Special Servicer, as applicable, promptly
upon the occurrence of any of the foregoing events.
"Arden Loan": The Mortgage Loan identified as No. 5 on the Mortgage
Loan Schedule.
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
agreement executed by the Borrower, assigning to the mortgagee all of the
income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without
recourse, notice of transfer or equivalent instrument, in recordable form, which
is sufficient under the laws of the state in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same state, if permitted by law and acceptable for
recording; provided, however, that none of the Trustee, the Custodian and the
Master Servicer shall be responsible for determining whether any assignment is
legally sufficient or in recordable form.
"Assumption Fees": Any fees collected by the Master Servicer or
Special Servicer in connection with an assumption or modification of a Mortgage
Loan or substitution of a Borrower thereunder permitted to be executed under the
provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the
Trustee pursuant to Section 5.07.
"Available Funds": For a Distribution Date and either Loan Group,
the sum of (i) all Scheduled Payments, Extended Scheduled Payments, Balloon
Payments or other receipts on account of principal and interest (including
Unscheduled Payments and any Net REO Proceeds transferred from an REO Account
pursuant to Section 3.17(b)) on or in respect of the Mortgage Loans in such Loan
Group received by the Master Servicer in the Collection Period relating to such
Distribution Date, (ii) all other amounts received by the Master Servicer in
such Collection Period and required to be placed in the Collection Account by
the Master Servicer pursuant to Section 3.05 allocable to the Mortgage Loans in
such Loan Group, and including all P&I Advances made by the Master Servicer, the
Trustee or the Fiscal Agent, as applicable, in respect of such Distribution Date
and any interest or other income earned on funds in the Interest Reserve
Account, (iii) with respect to the Group 1 Loans, for the Distribution Date
occurring in each March, the Withheld Amounts remitted to the Lower-Tier
Distribution Account pursuant to Sections 3.25 and 4.06(b), and (iv) any late
payments of Scheduled Payments received with respect to the Mortgage Loans in
such Loan Group after the end of the Collection Period relating to such
Distribution Date but prior to the related Master Servicer Remittance Date but
excluding the following:
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(a) amounts permitted to be used to reimburse the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as applicable, for
previously unreimbursed Advances and interest thereon as described in Section
3.06(ii);
(b) those portions of each payment of interest which represent the
applicable Servicing Fee and an amount representing any applicable Special
Servicing Compensation with respect to such Distribution Date;
(c) all amounts in the nature of late fees (subject to Section 3.12
hereof), loan modification fees, extension fees, loan service transaction fees,
demand fees, beneficiary statement charges, Assumption Fees and similar fees,
and reinvestment earnings on Investment Accounts which the Master Servicer or
the Special Servicer is entitled to retain as additional servicing compensation;
(d) all amounts representing Scheduled Payments due after the
related Due Date;
(e) that portion of Net Liquidation Proceeds or Net Insurance
Proceeds with respect to a Mortgage Loan which represents any unpaid Servicing
Fee, Trustee Fee and Special Servicing Compensation, to which the Master
Servicer, Trustee and the Special Servicer, respectively, are entitled;
(f) all amounts representing expenses specifically reimbursable or
payable to the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent and other amounts permitted to be retained by the Master Servicer or
withdrawn by the Master Servicer from the Collection Account to the extent
expressly set forth in this Agreement (including, without limitation, as
provided in Section 3.06 and including any indemnities provided for herein),
including interest thereon as provided in this Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account, the Upper-Tier Distribution Account, the Lower-Tier
Distribution Account, the Class T Distribution Account, the Excess Interest
Distribution Account, the Interest Reserve Account, any Lock-Box Account, any
Reserve Account or any REO Account or in Permitted Investments in which such
funds may be invested;
(h) with respect to any Distribution Date occurring in each
February, and in any January occurring in a year that is not a leap year, the
Withheld Amounts with respect to the DDR/DRA Loan, the Xxxxxxxx Loan, the Arden
Loan, the Xxxxx Xxxxxx Loan and the Sun Communities Loan to be deposited in the
Interest Reserve Account and held for future distribution pursuant to Section
3.25;
(i) all amounts received with respect to each Mortgage Loan
previously purchased or repurchased pursuant to Sections 2.03(d), 3.18 or 9.01
during the related Collection Period and subsequent to the date as of which the
amount required to effect such purchase or repurchase was determined;
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(j) the amount reasonably determined by the Trustee to be necessary
to pay any applicable federal, state or local taxes imposed on the Upper-Tier
REMIC or the Lower-Tier REMIC under the circumstances and to the extent
described in Section 4.05;
(k) Prepayment Premiums;
(l) Default Interest; and
(m) Excess Interest.
"Balloon Payment": With respect to the DDR/DRA Loan, the Xxxxx
Xxxxxx Loan and the Valley View Loan, the payments due on their respective
stated maturity dates.
"Beneficial Owner": With respect to a Global 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 Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository). Each
of the Trustee and the Master Servicer shall have the right to require, as a
condition to acknowledging the status of any Person as a Beneficial Owner under
this Agreement, that such Person provide evidence at its expense of its status
as a Beneficial Owner hereunder.
"Borrower": With respect to any Mortgage Loan, any obligor or
obligors on any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Business Day": Any day other than a Saturday, a Sunday or any day
on which banking institutions in the City of New York, New York, the cities in
which the principal offices of the Master Servicer or Special Servicers are
located, or the city in which the corporate trust office of the Trustee is
located are authorized or obligated by law, executive order or governmental
decree to be closed.
"Cash Deposit": An amount equal to all cash payments of principal
and interest received by the related Originator in respect of the Mortgage Loans
prior to or on the Closing Date that are due after the Cut-Off Date.
"Certificate": Any Class A-1, Class A-2, Class A-3, Class X-1, Class
B, Class C-1, Class C-2, Class X-2, Class D, Class E, Class F, Class T, Class R
or Class LR Certificate issued, authenticated and delivered hereunder.
"Certificate Custodian": Initially, LaSalle National Bank;
thereafter any other Certificate Custodian acceptable to the Depository and
selected by the Trustee.
"Certificate Interest Rate": Any of the Class A-1 Certificate
Interest Rate, the Class A-2 Certificate Interest Rate, the Class A-3
Certificate Interest Rate, the Class X-1 Certificate Interest Rate, the Class B
Certificate Interest Rate, the Class C-1 Certificate Interest
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Rate, the Class C-2 Certificate Interest Rate, the Class X-2 Certificate
Interest Rate, the Class D Certificate Interest Rate, the Class E Certificate
Interest Rate and the Class F Certificate Interest Rate. The Class T, Class R
and Class LR Certificates do not have Certificate Interest Rates.
"Certificate Principal Amount": With respect to any Class of
Certificates (other than the Class X-1, Class X-2, Class T, Class R and Class LR
Certificates) (a) on or prior to the first Distribution Date, an amount equal to
the aggregate initial Certificate Principal Amount of such Class, as specified
in the Preliminary Statement hereto, and (b) as of any date of determination
after the first Distribution Date, the Certificate Principal Amount of such
Class of Certificates on the Distribution Date immediately prior to such date of
determination, after actual distributions of principal thereon and allocation of
Realized Losses thereto on such prior Distribution Date; provided that for
purposes of determining Voting Rights, the Certificate Principal Amount of each
of the Class B, Class C-1, Class C-2, Class D, Class E, and Class F Certificates
shall be deemed to have been reduced by the amount of any Appraisal Reduction
Amounts allocated thereto pursuant to Section 4.01(k). With respect to any Class
of Lower-Tier Regular Interest, (a) on or prior to the first Distribution Date,
an amount equal to the aggregate initial Certificate Principal Amount of the
Class of Related Certificates with respect thereto, and (b) as of any date of
determination after the first Distribution Date, the Certificate Principal
Amount of such Class on the Distribution Date immediately prior to such date of
determination, after distribution of principal thereon and allocation of
Realized Losses thereto on such prior Determination Date in accordance with
Section 4.01(a).
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": With respect to any Certificate, the Person
whose name is registered in the Certificate Register; provided, however, that,
except to the extent provided in the next proviso, solely for the purpose of
giving any consent or taking any action pursuant to this Agreement, any
Certificate beneficially owned by the Depositor, the Master Servicer, the
Special Servicer, the Trustee, a manager of a Mortgaged Property, a mortgagor or
any Person known to a Responsible Officer of the Certificate Registrar to be an
Affiliate of the Depositor, the Trustee, the Master Servicer or the Special
Servicer 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 or take any
such action has been obtained; provided, however, that (i) for purposes of
obtaining the consent of Certificateholders to an amendment of this Agreement,
any Certificates beneficially owned by the Master Servicer or the Special
Servicer or an Affiliate thereof shall be deemed to be outstanding, provided,
that, such amendment does not relate to compensation of the Master Servicer or
the Special Servicer or benefit the Master Servicer or the Special Servicer (in
its capacity as such) or any Affiliate thereof (other than solely in its
capacity as Certificateholder) in any material respect, in which case such
Certificate shall be deemed not to be outstanding; and (ii) for purposes of
obtaining the consent of Certificateholders to any action proposed to be taken
by the Special Servicer with respect to a Specially Serviced Mortgage Loan, any
Certificates beneficially owned by the Master Servicer or an Affiliate thereof
shall be deemed
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to be outstanding, provided that the Special Servicer is not the
Master Servicer. For purposes of obtaining the consent of Certificateholders to
any action with respect to a particular Mortgage Loan proposed to be taken by
the Master Servicer or Special Servicer, any Certificates beneficially owned by
the Affiliates of the related Borrower, the related Manager, or Affiliates of
the related Manager shall not be deemed to be outstanding.
Notwithstanding the foregoing, solely for purposes of providing or
distributing any reports, statements or other information required or permitted
to be provided to a Certificateholder hereunder, a Certificateholder shall
include any Beneficial Owner, or any Person identified by a Beneficial Owner as
a prospective transferee of a Certificate beneficially owned by such Beneficial
Owner but only if the Trustee or another party hereto furnishing such report,
statement or information has been provided with the name of the Beneficial Owner
of the related Certificate or the Person identified as a prospective transferee
thereof. For purposes of the foregoing, the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent, the Fiscal Agent or other such
Person may rely, without limitation, on a participant listing from the
Depository or statements furnished by a Person that on their face appear to be
statements from a participant in the Depository to such Person indicating that
such Person beneficially owns Certificates.
"Class": With respect to the Certificates, all of the Certificates
bearing the same alphabetical and numerical class designation, and with respect
to the Lower-Tier Regular Interests, each interest bearing the applicable
alphabetical and numerical designation set forth in the Preliminary Statement
hereto.
"Class A Certificates": Class A-1 Certificates, the Class A-2
Certificates and the Class A-3 Certificates.
"Class A-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-1 hereto.
"Class A-1 Certificate Interest Rate": A per annum rate equal to
[ ]%.
"Class A-1 Component": With respect to the Class X-1 Certificates,
at any date of determination, that portion of the Notional Amount of the Class
X-1 Certificates equal to the Certificate Principal Amount of the Class A-1
Certificates.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-2 hereto.
"Class A-2 Certificate Interest Rate": A per annum rate equal to
[ ]%.
"Class A-2 Component": With respect to the Class X-1 Certificates,
at any date of determination, that portion of the Notional Amount of the Class
X-1 Certificates equal to the Certificate Principal Amount of the Class A-2
Certificates.
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"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-3 hereto.
"Class A-3 Certificate Interest Rate": A per annum rate equal to
[ ]%.
"Class A-3 Component": With respect to the Class X-1 Certificates,
at any date of determination, that portion of the Notional Amount of the Class
X-1 Certificates equal to the Certificate Principal Amount of the Class A-3
Certificates.
"Class B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-5 hereto.
"Class B Certificate Interest Rate": A per annum rate equal to [ ]%.
"Class B Component": With respect to the Class X-1 Certificates, at
any date of determination, that portion of the Notional Amount of the Class X-1
Certificates equal to the Certificate Principal Amount of the Class B
Certificates.
"Class C-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-6 hereto.
"Class C-1 Certificate Interest Rate": A per annum rate equal to
[ ]%.
"Class C-1 Component": With respect to the Class X-1 Certificates,
at any date of determination, that portion of the Notional Amount of the Class
X-1 Certificates equal to the Certificate Principal Amount of the Class C-1
Certificates.
"Class C-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-7 hereto.
"Class C-2 Certificate Interest Rate": A per annum rate equal to (i)
for each Distribution Date through and including the Distribution Date in July
2004, LIBOR plus [ ]% and (ii) for each Distribution Date thereafter, the Net
Mortgage Rate of the Worldwide Plaza LIBOR Component.
"Class D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-9 hereto.
"Class D Certificate Interest Rate": A per annum rate equal to [ ]%.
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"Class D Component": With respect to the Class X-1 Certificates, at
any date of determination, that portion of the Notional Amount of the Class X-1
Certificates equal to the Certificate Principal Amount of the Class D
Certificates.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-10 hereto.
"Class E Certificate Interest Rate": A per annum rate equal to the
lesser of (i) the Group 1 WAC Rate and (ii) [ ]%.
"Class E Component": With respect to the Class X-1 Certificates, at
any date of determination, that portion of the Notional Amount of the Class X-1
Certificates equal to the Certificate Principal Amount of the Class E
Certificates.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-11 hereto.
"Class F Certificate Interest Rate": A per annum rate equal to the
lesser of (i) the Group 1 WAC Rate and (ii) [ ]%.
"Class F Component": With respect to the Class X-1 Certificates, at
any date of determination, that portion of the Notional Amount of the Class X-1
Certificates equal to the Certificate Principal Amount of the Class F
Certificates.
"Class LA-1 Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distribution payable thereto pursuant to Section
4.01(a).
"Class LA-2 Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distribution payable thereto pursuant to Section
4.01(a).
"Class LA-3 Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distribution payable thereto pursuant to Section
4.01(a).
"Class LB Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distribution payable thereto pursuant to Section
4.01(a).
"Class LC-1 Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distribution payable thereto pursuant to Section
4.01(a).
"Class LC-2 Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distribution payable thereto pursuant to Section
4.01(a).
"Class LD Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distribution payable thereto pursuant to Section
4.01(a).
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"Class LE Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distribution payable thereto pursuant to Section
4.01(a).
"Class LF Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distribution payable thereto pursuant to Section
4.01(a).
"Class LR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-14 hereto. The Class LR Certificates have no
Certificate Interest Rate, Certificate Principal Amount or Notional Amount.
"Class T Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-12 hereto and entitled to the distributions payable
thereto pursuant to Section 4.01(d). The Class T Certificates have no
Certificate Interest Rate, Certificate Principal Amount or Notional Amount. The
Class T Certificates represent a beneficial ownership interest in the Default
Interest, subject to the obligation to pay certain amounts as set forth in
Section 3.05(c).
"Class T Distribution Account": The account or accounts created and
maintained as a separate account or accounts by the Trustee pursuant to Section
3.05(c), which shall be entitled "LaSalle National Bank, as Trustee, in trust
for Holders of Structured Asset Securities Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1997-LL I, Class T Certificateholders, Class T
Distribution Account" and which must be an Eligible Account. The Class T
Distribution Account shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-13 hereto. The Class R Certificates have no
Certificate Interest Rate, Certificate Principal Amount or Notional Amount.
"Class X-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-4 hereto.
"Class X-1 Certificate Interest Rate": A per annum rate equal to the
weighted average of the Certificate Interest Rates on the Class A-1 Component,
the Class A-2 Component, the Class A-3 Component, the Class B Component, the
Class C-1 Component, the Class D Component, the Class E Component and the Class
F Component, weighted on the basis of the Certificate Principal Amount of their
respective related Class of Certificates. The Certificate Interest Rate on the
Class A-1 Component is a per annum rate equal to the Group 1 WAC Rate minus the
Class A-1 Certificate Interest Rate. The Certificate Interest Rate on the Class
A-2 Component is a per annum rate equal to the Group 1 WAC Rate minus the Class
A-2 Certificate Interest Rate. The Certificate Interest Rate on the Class A-3
Component is a per annum rate equal to the Group 1 WAC Rate minus the Class A-3
Certificate Interest Rate. The Certificate Interest Rate on the Class B
Component is a per annum rate equal to the Group 1
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WAC Rate minus the Class B Certificate Interest Rate. The Certificate Interest
Rate on the Class C-1 Component is a per annum rate equal to the Group 1 WAC
Rate minus the Class C-1 Certificate Interest Rate. The Certificate Interest
Rate on the Class D Component is a per annum rate equal to the Group 1 WAC Rate
minus the Class D Certificate Interest Rate. The Certificate Interest Rate on
the Class E Component is a per annum rate equal to the Group 1 WAC Rate minus
the Class E Certificate Interest Rate. The Certificate Interest Rate on the
Class F Component is a per annum rate equal to the Group 1 WAC Rate minus the
Class F Certificate Interest Rate.
"Class X-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-8 hereto.
"Class X-2 Certificate Interest Rate": A per annum rate equal to the
Net Mortgage Rate on the Worldwide Plaza LIBOR Component minus the Class C-2
Certificate Interest Rate.
"Closing Date": October 14, 1997.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, any successor statute thereto, and any temporary or final regulations of
the United States Department of the Treasury promulgated pursuant thereto.
"Collection Account": The account or accounts created and maintained
by the Master Servicer pursuant to Section 3.05(a), which shall be entitled
"GMAC Commercial Mortgage Corporation in trust for LaSalle National Bank, as
Trustee, in trust for Holders of Structured Asset Securities Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1997-LL I, Collection
Account" and which must be an Eligible Account.
"Collection Period": With respect to a Distribution Date and each
Mortgage Loan, the period beginning on the day after the Due Date in the month
preceding the month in which such Distribution Date occurs and ending at the
close of business on the Due Date in the month in which such Distribution Date
occurs.
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit I attached hereto, setting forth,
among other things, the occupancy, revenue, net operating income and debt
service coverage ratio for each Mortgaged Property for each of the following
three periods (to the extent such information is available): (i) the most
current available trailing twelve months, which information shall be updated
only once per quarter, (ii) the previous two full fiscal years, which
information shall be updated within 45 days of the of receipt of the annual
information provided by the related Borrowers and (iii) the "base year"
(representing the original analysis of information used as of the Cut-Off Date).
For the purposes of the Master Servicer's production of any such report that is
required to state information for any period prior to the Cut-Off Date, the
Master Servicer may
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conclusively rely (without independent verification), absent manifest error, on
information provided to it by the Mortgage Loan Seller.
"Corporate Trust Office": The principal office of the Trustee
located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention:
Asset Backed Securities Trust Services Group-1997-LL I, or the principal trust
office of any successor trustee qualified and appointed pursuant to Section
8.08.
"Courtyard Loan": The Mortgage Loan identified as No. 2 on the
Mortgage Loan Schedule.
"Cross-over Date": The Distribution Date on which the Certificate
Principal Amount of each Class of Subordinate Certificates has been reduced to
zero.
"Custodial Agreement": The custodial agreement, if any, from time to
time in effect between the Custodian named therein and the Trustee, as the same
may be amended or modified from time to time in accordance with the terms
thereof.
"Custodian": Any Custodian appointed pursuant to Section 5.08 and,
unless the Trustee is Custodian, named pursuant to any Custodial Agreement. The
Custodian may (but need not) be the Trustee or the Master Servicer or any
Affiliate of the Trustee or the Master Servicer, but may not be the Depositor or
any Affiliate thereof.
"Cut-Off Date": With respect to each of the Mortgage Loans, October
11, 1997.
"DCR": Duff & Xxxxxx Credit Rating Co., or its successor in
interest.
"DDR/DRA Loan": The Mortgage Loan identified as No. 1 on the
Mortgage Loan Schedule.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan as
of any date of determination and for any period, the ratio calculated by
dividing the net operating income of the related Mortgaged Property or Mortgaged
Properties, as the case may be, for the most recently ended one-year period for
which data is available from the related Borrower, before payment of any
scheduled payments of principal and interest on such Mortgage Loan but after
funding of required reserves and "normalized" by the Master Servicer pursuant to
Section 3.13, by the annual debt service required by such Mortgage Loan. Annual
debt service shall be calculated by multiplying the Scheduled Payment in effect
on such date of determination for such Mortgage Loan by 12.
"Default Interest": With respect to any Mortgage Loan or Worldwide
Component, interest accrued on such Mortgage Loan or Worldwide Component at the
excess of the related Default Rate over the sum of the related Mortgage Rate
plus, if applicable, the Excess Rate for such Mortgage Loan. The Default
Interest shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
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"Default Rate": With respect to each Mortgage Loan or Worldwide
Component, the per annum rate at which interest accrues on such Mortgage Loan or
Worldwide Component following any event of default on such Mortgage Loan or
Worldwide Component, including a default in the payment of a Scheduled Payment,
as such rate is set forth on the Mortgage Loan Schedule.
"Delinquent Loan Status Report": A report substantially containing
the content described in Exhibit J attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the Due Date
immediately preceding the preparation of such report, were delinquent 30-59
days, delinquent 60-89 days, delinquent 90 or more days or more, current but
specially serviced, or were in foreclosure but were not REO Property.
"Denomination": As defined in Section 5.01.
"Depositor": Structured Asset Securities Corporation, a Delaware
corporation, and its successors and assigns.
"Depository": The Depository Trust Company or a successor appointed
by the Certificate Registrar (which appointment shall be at the direction of the
Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Discount Rate": With respect to each Mortgage Loan or Worldwide
Component, the discount rate used to calculate the Prepayment Premium pursuant
to the terms of such Mortgage Loan.
"Discount Rate Fraction": As defined in Section 4.01(c).
"Directing Class": As defined in Section 3.27.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers in the ordinary course of a trade or business or
any use of such REO Property in a trade or business conducted by the Trust Fund,
or the performance of any construction work on the REO Property (other than the
completion of a building or improvement, where more than 10 percent of the
construction of such building or improvement was completed before default became
imminent), other than through an Independent Contractor; provided, however, that
the Special Servicer, on behalf of the Trust Fund, shall not be considered to
Directly Operate an REO Property solely because the Special Servicer, on behalf
of the Trust Fund, establishes rental terms, chooses tenants,
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enters into or renews leases, deals with taxes and insurance, or makes decisions
as to repairs or capital expenditures with respect to such REO Property or takes
other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Non-U.S. Person": With respect to a Class R or Class
LR Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R or Class LR Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form 4224 or (ii)
a Non-U.S. Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of the Class R or Class LR Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R or Class LR Certificate will not be disregarded for
federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State
or any political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and a majority of its board of directors is not selected by any such
governmental unit), (b) a foreign government, International Organization or
agency or instrumentality of either of the foregoing, (c) an organization that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by Code Section 511 on unrelated business taxable income) on any excess
inclusions (as defined in Code Section 860E(c)(1)) with respect to the Class R
or Class LR Certificates (except certain farmers' cooperatives described in Code
Section 521), (d) rural electric and telephone cooperatives described in Code
Section 1381(a)(2), or (e) any other Person so designated by the Certificate
Registrar based upon an Opinion of Counsel to the effect that any Transfer to
such Person may cause the Upper-Tier REMIC or Lower-Tier REMIC to be subject to
tax or to fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms "United States," "State" and "International Organization"
shall have the meanings set forth in Code Section 7701 or successor provisions.
"Distribution Date": The second Business Day following the 10th day
of each month (or, if the 10th day is not a Business Day, the third Business Day
immediately following the 10th day of the month), commencing in November, 1997.
"Due Date": With respect to any Mortgage Loan, the day each month
set forth in the related Note on which the Scheduled Payment is due and payable,
and with respect to any Distribution Date, the Due Date occurring in the month
in which such Distribution Date occurs.
"Early Termination Notice Date": Any date as of which the aggregate
Stated Principal Balance of the Mortgage Loans is less than 1.0% of the sum of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date.
"Effective Servicing Fee Rate" means, with respect to the Worldwide
Plaza LIBOR Component (i) for Collection Periods commencing in the months of
April, June,
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September, November and (for years preceding a non-leap year) December, the
Servicing Fee Rate and (ii) for Collection Periods, commencing in the months of
January, February, March, May, July, August, October and (for years preceding a
leap year) December, the rate per annum (which may be higher or lower than the
Servicing Fee Rate) at which the Servicing Fee (which is calculated on a 30/360
basis) would have to accrue on the Stated Principal Balance of the Worldwide
Plaza LIBOR Component during the related Collection Period in order to produce
an amount equal to the Servicing Fee to be paid with respect to the Worldwide
Plaza LIBOR Component with respect to such Collection Period.
"Eligible Account": Either (i) (A) an account or accounts maintained
with either a federal or state chartered depository institution or trust company
the long-term unsecured debt obligations (or short-term unsecured debt
obligations if the account holds funds for less than 30 days) or commercial
paper of which are rated by each of the Rating Agencies no less than one rating
category less than the rating of the highest-rated Class of Certificates, but in
no event less than "A" or (B) as to which the Master Servicer or the Trustee, as
applicable, has received written confirmation from each of the Rating Agencies
which rates such depository institution in a rating category lower than that
required by clause (A) that holding funds in such account would not cause any
Rating Agency to qualify, withdraw or downgrade any of its ratings on the
Certificates or (ii) a segregated trust account or accounts maintained with a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity which, in the case of a state chartered depository
institution or trust company is subject to regulations substantially similar to
12 C.F.R. ss. 9.10(b), having in either case a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by federal or
state authority, or (iii) any other account that, as evidenced by a written
confirmation from each Rating Agency, would not, in and of itself, cause a
downgrade, qualification or withdrawal of the then current ratings assigned to
the Certificates, which may be an account maintained with the Trustee or the
Master Servicer; provided, however, that accounts held at Banc One of Texas and
Bank of New York (DE) shall be Eligible Accounts for so long as there is no
downgrade, qualification or withdrawal of the rating of such institutions from
their ratings as of the Cut-Off Date. Eligible Accounts may bear interest.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A, or (ii) an Institutional Accredited
Investor.
"Environmental Report": The environmental audit report or reports
with respect to each Mortgaged Property delivered to the related Originator in
connection with the origination of the related Mortgage Loan.
"ERISA": The Employee Retirement Income Security Act of 1974, as it
may be amended from time to time.
"Escrow Account": As defined in Section 3.04(b).
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"Escrow Payment": Any payment made by any Borrower to the Master
Servicer pursuant to the related Mortgage, Lock-Box Agreement or Loan Agreement
for the account of such Borrower for application toward the payment of taxes,
insurance premiums, assessments, ground rents and similar items in respect of
the related Mortgaged Property.
"Event of Default": A Master Servicer Event of Default or Special
Servicer Event of Default, as applicable.
"Excess Interest": With respect to each Mortgage Loan and each
Worldwide Component (other than the DDR/DRA Loan), interest accrued on such
Mortgage Loan at the related Excess Rate plus interest thereon to the extent
permitted by applicable law at the related Revised Mortgage Rate. The Excess
Interest shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts by the Trustee
pursuant to Section 3.05(d), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Structured Asset Securities Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1997-LL I, Excess Interest
Distribution Account" and which must be an Eligible Account. The Excess Interest
Distribution Account shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Excess Prepayment Interest Shortfall": With respect to either Loan
Group and any Distribution Date, the aggregate amount by which the Prepayment
Interest Shortfall with respect to all Principal Prepayments received during the
related Collection Period with respect to such Loan Group exceeds the aggregate
Servicing Fee (minus the Trustee Fee) available to be paid to the Master
Servicer with respect to such Loan Group for such Distribution Date.
"Excess Rate": With respect to each Mortgage Loan (other than the
DDR/DRA Loan) and each Worldwide Component is the excess of the related Revised
Mortgage Rate over the related Mortgage Rate or, with respect to the Worldwide
Plaza LIBOR Component, the excess of the related Revised Mortgage Rate over
7.920% per annum.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Report": A Form 8-K, Form 10-K, Form 10-Q or Form
12b-25 to be filed with the Commission, under cover of the related form required
by the Exchange Act.
"Extended Scheduled Payment": With respect to any extension of a
Mortgage Loan as to which any principal balance and accrued interest remains
unpaid on its Maturity Date (such unpaid amount, a "Balance"), an amount equal
to (a) a deemed principal portion of a revised monthly payment (which will be
calculated based on an amortization schedule which would fully amortize the
applicable Balance over a term that does not extend past the date occurring two
years prior to the Rated Final Distribution Date (commencing on the Maturity
Date of such Mortgage Loan) and an interest rate no less than the Mortgage Rate
with respect
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to such Mortgage Loan), and (b) interest at the applicable Default Rate;
provided, however, that the Special Servicer may agree that the Extended
Scheduled Payments may include interest at a rate lower than the related Default
Rate (but, except as otherwise provided herein, not lower than the related
Mortgage Rate).
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Recovery Determination": With respect to any Specially
Serviced Mortgage Loan or any Mortgage Loan subject to repurchase by the
Depositor in accordance with Section 2.03(d), the recovery of all Insurance
Proceeds, Liquidation Proceeds, the related Repurchase Price and other payments
or recoveries (including proceeds of the final sale of any REO Property) which
the Master Servicer (or in the case of a Specially Serviced Mortgage Loan, the
Special Servicer), in its reasonable judgment as evidenced by a certificate of a
Servicing Officer delivered to the Trustee and the Custodian (and the Master
Servicer, if the certificate is from the Special Servicer), expects to be
finally recoverable. The Master Servicer shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination until the earlier of (i)
its termination as Master Servicer hereunder and the transfer of such records to
a successor Master Servicer and (ii) five years following the termination of the
Trust Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"Financial Report": A Form 8-K including as exhibits under Item 7 of
Form 8-K the financial statements and other financial information required to be
filed as described in Sections 3.20.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking
corporation, in its capacity as fiscal agent of the Trustee, or its successor in
interest, or any successor fiscal agent appointed as herein provided.
"Fixed Voting Rights Percentage": As defined in the definition of
"Voting Rights."
"FNMA": The Federal National Mortgage Association, or any successor
thereto.
"Form 8-K": A Current Report on Form 8-K under the Exchange Act, or
such successor form as the Commission may specify from time to time.
"Form 10-K": An Annual Report in Form 10-K under the Exchange Act,
or such successor form as the Commission may specify from time to time.
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"Form 10-Q": A Quarterly Report in Form 10-Q under the Exchange Act,
or such successor form as the Commission may specify from time to time.
"Form 12b-25": A Notification of Late Filing required by Rule 12b-25
under the General Rules and Regulations under the Exchange Act.
"Form 15": As defined in Section 3.20(a) herein.
"Global Certificates": The Class A-1, Class A-2, Class A-3, Class
X-1, Class B, Class C-1, Class C-2, Class X-2, Class D, Class E and Class F
Certificates.
"GMACCM": GMAC Commercial Mortgage Corporation, a California
corporation.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Default Interest, Excess Interest and amounts held from time
to time in the Class T Distribution Account and the Excess Interest Distribution
Account.
"Group 1 Certificates": The Class A-1, Class A-2, Class A-3, Class
X-1, Class B, Class C-1, Class D, Class E and Class F Certificates.
"Group 1 Loans": All of the Mortgage Loans and Worldwide Components
other than the Worldwide Plaza LIBOR Component.
"Group 1 Realized Loss": With respect to any Distribution Date shall
mean the amount, if any, by which (i) the aggregate Certificate Principal Amount
of all Classes of Group 1 Certificates, after giving effect to distributions
made on such Distribution Date, exceeds (ii) the aggregate Stated Principal
Balance of the Group 1 Loans after giving effect to any payments of principal
received or advanced with respect to the Due Date occurring immediately prior to
such Distribution Date.
"Group 1 WAC Rate": With respect to any Distribution Date is a per
annum rate equal to the weighted average of the Net Mortgage Rates in effect for
the Group 1 Loans as of their respective Due Dates in the month preceding the
month in which such Distribution Date occurs weighted on the basis of their
respective Stated Principal Balances on such Due Dates.
"Group 2 Certificates": The Class C-2 and Class X-2 Certificates.
"Group 2 Loan": The Worldwide Plaza LIBOR Component.
"Group 2 Realized Loss": with respect to any Distribution Date shall
mean the amount, if any, by which (i) the aggregate Certificate Principal Amount
of the Class C-2 Certificates, after giving effect to distributions made on such
Distribution Date, exceeds (ii) the aggregate Stated Principal Balance of the
Worldwide Plaza LIBOR Component after giving effect to any payments of principal
received or advanced with respect to the Due Date occurring immediately prior to
such Distribution Date.
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"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now or hereafter existing, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory", "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Historical Loan Modification Report": A report substantially
containing the content described in Exhibit K attached hereto, setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the Due Date immediately preceding the preparation of such report, have been
modified pursuant to this Agreement (i) during the related Collection Period and
(ii) since the Cut-Off Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": A report substantially containing
the content described in Exhibit L attached hereto, setting forth, among other
things, as of the close of business on the Due Date immediately preceding the
preparation of such report, (i) the aggregate amount of Liquidation Proceeds and
Liquidation Expenses, both for the current period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Lower-Tier Regular Interest, the Trustee.
"Indemnified Party": As defined in Section 8.05(c).
"Indemnifying Party": As defined in Section 8.05(c).
"Independent": When used with respect to any specified Person, any
such Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Master
Servicer, the Special Servicer, any Borrower or any Affiliate thereof, and (ii)
is not connected with any such Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Master Servicer nor the Special Servicer shall
be considered to be an Independent Contractor under the definition in
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this clause (i) unless an Opinion of Counsel (at the expense of the party
seeking to be deemed an Independent Contractor) addressed to the Master Servicer
and the Trustee has been delivered to the Trustee to that effect) or (ii) any
other Person (including the Master Servicer and the Special Servicer) if the
Master Servicer, on behalf of itself and the Trustee, has received an Opinion of
Counsel (at the expense of the party seeking to be deemed an Independent
Contractor) 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 (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code) or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property (provided that such income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act, or an entity in which all the equity owners meet such
requirements.
"Insurance Proceeds": Proceeds of any fire and hazard insurance
policy, title policy or other insurance policy relating to a Mortgage Loan
(including any amounts paid by the Master Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and
any Class of P&I Certificates, an amount equal to interest for the related
Interest Accrual Period at the Certificate Interest Rate for such Class on the
related Certificate Principal Amount (provided, that for interest accrual
purposes any distributions in reduction of Certificate Principal Amount or
reductions in Certificate Principal Amount as a result of allocations of
Realized Losses on the Distribution Date occurring in an Interest Accrual Period
shall be deemed to have been made on the first day of such Interest Accrual
Period). With respect to any Distribution Date and the Class X-1 and Class X-2
Certificates, an amount equal to interest for the related Interest Accrual
Period at the Certificate Interest Rate for such Class for such Interest Accrual
Period on the Notional Amount of such Class (provided, that for interest accrual
purposes any distributions in reduction of Notional Amount or reductions in
Notional Amount as a result of allocations of Realized Losses on the
Distribution Date occurring in an Interest Accrual Period shall be deemed to
have been made on the first day of such Interest Accrual Period). Calculations
of interest due in respect of the Group 1 Certificates shall be made on the
basis of a 360-day year consisting of twelve 30-day months. Calculations of
interest due in respect of the Group 2 Certificates shall be made based on the
actual number of days in such Interest Accrual Period and a 360-day year.
"Interest Accrual Period": With respect to any Distribution Date and
with respect to each Class of Group 1 Certificates, the period which commences
on the tenth day of the month preceding the month in which such Distribution
Date occurs and ends on the ninth
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day of the month in which such Distribution Date occurs. Each Interest Accrual
Period with respect to each Class of Group 1 Certificates will be deemed to
consist of 30 days. With respect to the Group 2 Certificates, the Interest
Accrual Period with respect to any Distribution Date is the period commencing on
and including the 12th day of the month preceding the month in which such
Distribution Date occurs and ending on and including the eleventh day of the
month in which such Distribution Date occurs.
"Interest Distribution Amount": With respect to any Distribution
Date and each Class of Regular Certificates, an amount equal to (A) the sum of
(i) the Interest Accrual Amount for such Distribution Date and (ii) the Interest
Shortfall, if any, for such Distribution Date, less (B) any Excess Prepayment
Interest Shortfall allocated to such Class on such Distribution Date pursuant to
Section 4.01(h).
"Interest Rate Cap Agreement": That certain interest rate cap
agreement entered into between the Borrowers under the Worldwide Plaza Loan and
SBCM Derivative Products Limited.
"Interest Rate Cap Provider": SBCM Derivative Products Limited, in
its capacity as the interest rate cap provider, or any successor thereto,
pursuant to the Interest Rate Cap Agreement.
"Interest Reserve Account": The account created and maintained by
the Trustee pursuant to Section 3.25, which shall be entitled "LaSalle National
Bank, as Trustee, in trust for Holders of Structured Asset Securities
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1997-LL I,
Interest Reserve Account" and which shall be an Eligible Account.
"Interest Shortfall": With respect to any Distribution Date for any
Class of Regular Certificates, the sum of (a) the excess, if any, of (i) the
Interest Distribution Amount for such Class for the immediately preceding
Distribution Date, over (ii) all distributions of interest (other than Excess
Interest) made with respect to such Class on the immediately preceding
Distribution Date, and (b) to the extent permitted by applicable law, (i) other
than in the case of the Class X-1 and Class X-2 Certificates, one month's
interest on any such excess at the Certificate Interest Rate applicable to such
Class for the current Distribution Date, (ii) in the case of the Class X-1
Certificates, one month's interest on any such excess at the Group 1 WAC Rate
for such Distribution Date, and (iii) in the case of the Class X-2 Certificates,
one month's interest on any such excess at the Mortgage Rate of the Worldwide
Plaza LIBOR Component.
"Interested Person": As of any date of determination, the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, any
Borrower, any manager of a Mortgaged Property, any Independent Contractor
engaged by the Special Servicer pursuant to Section 3.17, or any Person known to
a Responsible Officer of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
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"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"LIBOR" shall mean, with respect to each Interest Accrual Period for
the Class C-2 Certificates, the rate (expressed as a percentage per annum and
rounded upward, if necessary, to the next nearest 1/1000 of 1%) for deposits in
U.S. dollars, for a one-month period, that appears on Telerate Page 3750 (or the
successor thereto) as of 11:00 a.m., London time, on the related LIBOR
Determination Date. If such rate does not appear on Telerate Page 3750 as of
11:00 a.m., London time, on such LIBOR Determination Date, LIBOR shall be the
arithmetic mean of the offered rates (expressed as a percentage per annum) for
deposits in U.S. dollars for a one-month period that appear on the Reuters
Screen LIBOR Page as of 11:00 a.m., London time, on such LIBOR Determination
Date, if at least two such offered rates so appear. If fewer than two such
offered rates appear on the Reuters Screen LIBOR Page as of 11:00 a.m., London
time, on such LIBOR Determination Date, the Master Servicer shall request the
principal London Office of any four major reference banks in the London
interbank market selected by the Master Servicer to provide such bank's offered
quotation (expressed as a percentage per annum) to prime banks in the London
interbank market for deposits in U.S. dollars for a one-month period as of 11:00
a.m., London time, on such LIBOR Determination Date for the amounts of not less
than U.S. $1,000,000. If at least two such offered quotations are so provided,
LIBOR shall be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, the Master Servicer shall request any three major
banks in New York City selected by the Master Servicer to provide such bank's
rate (expressed as a percentage per annum) for loans in U.S. dollars to leading
European banks for a one-month period as of approximately 11:00 a.m., New York
City time on the applicable LIBOR Determination Date for amounts of not less
than U.S. $1,000,000. If at least two such rates are so provided, LIBOR shall be
the arithmetic mean of such rates. LIBOR shall be determined by the Master
Servicer or its agent.
"LIBOR Business Day": Any day on which dealings in foreign
currencies and exchange are carried on in London, England and in New York, New
York.
"LIBOR Determination Date": means, with respect to each Interest
Accrual Period, the date that is two LIBOR Business Days prior to the tenth day
of the month in which such Interest Accrual Period commences.
"Liquidation Expenses": Expenses incurred by the Master Servicer,
the Special Servicer, the Trustee and the Fiscal Agent in connection with the
liquidation of any Mortgage Loan or property acquired in respect thereof
(including, without limitation, legal fees and expenses, committee or referee
fees, and, if applicable, brokerage commissions, and conveyance taxes) and any
Property Protection Expenses incurred with respect to such Mortgage Loan or such
property including interest on the related Property Advances at the Advance Rate
not previously reimbursed from collections or other proceeds therefrom.
"Liquidation Fee": With respect to any Mortgage Loan or REO Property
which is sold or transferred or otherwise liquidated, an amount equal to 0.75%
of the amount equal to
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(a) the Liquidation Proceeds of such Mortgage Loan or REO Property (other than
any such proceeds specified in clause (i) of the definition of Liquidation
Proceeds) minus (b) any broker's commission and related brokerage referral fees.
"Liquidation Proceeds": The amount (other than Insurance Proceeds)
received in connection with (i) the taking of a Mortgaged Property (or portion
thereof) by exercise of the power of eminent domain or condemnation, (ii) the
liquidation of a Specially Serviced Mortgage Loan through a trustee's sale,
foreclosure sale or otherwise or (iii) a sale of a Mortgage Loan or an REO
Property in accordance with Section 3.18 or Section 9.01.
"Loan Agreement": With respect to any Mortgage Loan, the loan
agreement, if any, between the related Originator and the Borrower, pursuant to
which such Mortgage Loan was made.
"Loan Documents": With respect to any Mortgage Loan, the documents
executed or delivered in connection with the origination of such Mortgage Loan
or subsequently added to the related Mortgage File.
"Loan Group": Either of the Loan Group 1 or Loan Group 2.
"Loan Group 1": The loan group consisting of all of the Mortgage
Loans other than the Worldwide Plaza LIBOR Component.
"Loan Group 2": The loan group consisting of the Worldwide Plaza
LIBOR Component.
"Loan Number": With respect to any Mortgage Loan, the loan number by
which such Mortgage Loan was identified on the books and records of the
Depositor or any sub-servicer for the Depositor, as set forth in the Mortgage
Loan Schedule.
"Loan Sale Agreement": The Mortgage Loan Purchase and Sale
Agreement, dated as of the Cut-Off Date, by and between the Depositor and the
Mortgage Loan Seller, a copy of which is attached hereto as Exhibit G.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to any documents relating to a Mortgage
Loan to receive rental or other income generated by the Mortgaged Property. Any
Lock-Box Account shall be beneficially owned for federal income tax purposes by
the Person who is entitled to receive the reinvestment income or gain thereon in
accordance with the terms and provisions of the related Mortgage Loan and
Section 3.07, which Person shall be taxed on all reinvestment income or gain
thereon.
"Lock-Box Agreement": With respect to any Mortgage Loan, the
lock-box or other similar agreement, if any, between the related Originator and
the Borrower, pursuant to which the related Lock-Box Account, if any, may have
been established.
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"Lock-out Period": With respect to any Mortgage Loan, the period of
time specified in the related Loan Documents during which voluntary prepayments
by the related Borrower are prohibited.
"Lower-Tier Distribution Account": The account or accounts created
and maintained as a separate account or accounts by the Trustee pursuant to
Section 3.05(b), which shall be entitled "LaSalle National Bank, as Trustee, in
trust for Holders of Structured Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1997-LL I, Lower-Tier Distribution
Account" and which must be an Eligible Account.
"Lower-Tier Regular Interests": The Class LA-1, Class LA-2, Class
LA-3, Class LB, Class LC-1, Class LC-2, Class LD, Class LE and Class LF
Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Default Interest and Excess
Interest), collections thereon, any REO Property acquired in respect thereof and
all proceeds of such REO Property, other property of the Trust Fund related
thereto, and amounts held in respect thereof from time to time in the Collection
Account, the Interest Reserve Account and the Lower-Tier Distribution Account.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan, the
management agreement, if any, by and between the Manager and the related
Borrower, or any successor management agreement between such parties.
"Manager": With respect to any Mortgage Loan, any property manager
for the related Mortgaged Properties.
"Master Servicer": GMACCM or its successor in interest, or any
successor Master Servicer appointed as herein provided.
"Master Servicer Event of Default": As defined in Section 7.01(a).
"Master Servicer Remittance Date": With respect to any Distribution
Date, the Business Day immediately preceding such Distribution Date.
"Master Servicer Remittance Report": A report prepared by the Master
Servicer in such media as may be agreed upon by the Master Servicer and the
Trustee containing such information regarding the Mortgage Loans as will permit
the Trustee to calculate the amounts to be distributed pursuant to Section 4.01
and to furnish statements to Certificateholders pursuant to Section 4.02 and
containing such additional information as the Master Servicer and the Trustee
may from time to time agree.
"Master Servicer's Appraisal Estimate": As defined in the definition
of Appraisal Reduction Amount.
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"Maturity Date": With respect to each Mortgage Loan, the maturity
date as set forth on the Mortgage Loan Schedule.
"Monthly Distribution Statement": As defined in Section 4.02(a).
"Moody's": Xxxxx'x Investors Service, Inc., or its successor in
interest.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan, the mortgage
documents listed in Section 2.01(i) through (xv) pertaining to such particular
Mortgage Loan and any additional documents required to be added to such Mortgage
File pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund, the mortgage loans originally so transferred, assigned and held being
identified on the Mortgage Loan Schedule as of the Cut-Off Date. Such term shall
include any REO Mortgage Loan or defeased Mortgage Loan.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the
Trust Fund as of the Closing Date being attached hereto as Exhibit B, which list
shall set forth the following information with respect to each Mortgage Loan:
(a) the Borrower's name;
(b) the Scheduled Payment in effect as of the Cut-Off Date;
(c) the Mortgage Rate (separately identifying the Default Rate);
(d) the Net Mortgage Rate in effect at the Cut-Off Date;
(e) the original principal balance;
(f) the original term to stated maturity, remaining term to stated
maturity, and Maturity Date;
(g) the original and remaining amortization terms;
(h) the Stated Principal Balance as of the Cut-Off Date;
(i) the loan-to-value ratio as of the Cut-Off Date;
(j) the applicable Loan Number; and
(k) the number of Mortgaged Properties securing such Mortgage Loan.
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The Mortgage Loan Schedule shall also set forth the total of the
amounts described under clause (b) and (e) above for all of the Mortgage Loans.
"Mortgage Loan Seller": Xxxxxx Brothers Holdings Inc.
"Mortgage Rate": With respect to any Mortgage Loan or Worldwide
Component, the per annum rate at which interest accrues on such Mortgage Loan or
Worldwide Component as stated in the related Note, in each case without giving
effect to the Excess Rate or the Default Rate with respect to any Mortgage Loan
or Worldwide Component. Notwithstanding the foregoing, for purposes of
calculating Certificate Interest Rates of the Group 1 Certificates, the Mortgage
Rates of the Group 1 Loans for any one-month period preceding a related Due Date
shall be deemed to be a per annum rate equal to the Mortgage Rate thereof
multiplied by a fraction, the numerator of which is the actual number of days in
such Interest Accrual Period and the denominator of which is 30; provided,
however, that with respect to the DDR/DRA Loan, the Xxxxxxxx Loan, the Arden
Loan, the Xxxxx Xxxxxx Loan and the Sun Communities Loan, (i) the Mortgage Rate
for the Collection Period preceding the Due Dates in January and February in
each year that is not a leap year or in February only in each year that is a
leap year will be determined net of the Withheld Amounts with respect to each
such Mortgage Loan and (ii) the Mortgage Rate for the Collection Period
preceding the Due Date in each March will be determined after taking into
account the addition of the Withheld Amount with respect to such Mortgage Loan.
"Mortgaged Property": The underlying property securing a Mortgage
Loan, including any REO Property, consisting of a fee simple estate, and, with
respect to certain Mortgage Loans, a leasehold estate, or both a leasehold
estate and a fee simple estate, or a leasehold estate in a portion of the
property and a fee simple estate in the remainder, in a parcel of land improved
by a commercial property, together with any personal property, fixtures, leases
and other property or rights pertaining thereto.
"Net Default Interest": As defined in Section 3.05(c).
"Net Income": With respect to any REO Property, all income received
in connection with such REO Property, less any operating expenses, including,
but not limited to, utilities, real estate taxes, property management fees,
insurance premiums, leasing commission fees, expenses for maintenance and
repairs and any other capital expenses directly related to such REO Property and
permitted to be incurred under this Agreement.
"Net Insurance Proceeds": Insurance Proceeds, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Borrower in accordance with the express requirements
of the Mortgage or Note or other Loan Documents included in the Mortgage File or
in accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with
respect to any Mortgage Loan net of the amount of (i) Liquidation Expenses
incurred with respect thereto and, (ii) with respect to proceeds received in
connection with the taking of a Mortgaged
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Property (or portion thereof) by the power of eminent domain in condemnation,
amounts required to be applied to the restoration or repair of the related
Mortgaged Property.
"Net Mortgage Rate": With respect to any Group 1 Loan and any
Distribution Date, the per annum rate equal to the Mortgage Rate for such
Mortgage Loan or Worldwide Component minus the Servicing Fee Rate. The Net
Mortgage Rate of the Worldwide Plaza LIBOR Component is a per annum rate equal
to the Mortgage Rate thereof in effect from time to time minus the Effective
Servicing Fee Rate. For purposes of calculating any Certificate Interest Rate,
the Net Mortgage Rate of such Mortgage Loan or Worldwide Component shall be
determined without regard to any modification, waiver or amendment of the terms
of such Mortgage Loan or Worldwide Component, whether agreed to by the Special
Servicer or resulting from bankruptcy, insolvency or similar proceeding
involving the related Borrower.
"Net REO Proceeds": With respect to each REO Property and any
related REO Mortgage Loan, REO Proceeds with respect to such REO Property or REO
Mortgage Loan net of any insurance premiums, taxes, assessments, ground rents
and other costs and expenses permitted to be paid therefrom pursuant to Section
3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the
Trust Fund, including any lease renewed or extended on behalf of the Trust Fund
if the Trust Fund has the right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Master Servicer
or the Special Servicer, as the case may be, substantially containing the
content described in Exhibit O attached hereto, presenting the computations made
in accordance with the methodology described in said Exhibit O to "normalize"
the full year net operating income and debt service coverage numbers used in the
other reports required by this Agreement, sent to the Trustee with each annual
operating statement for a Mortgaged Property pursuant to Section 3.13(d).
"Nonrecoverable Advance": Any portion of an Advance proposed to be
made or previously made which has not been previously reimbursed to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as applicable,
and which, in the good faith business judgment of the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, will not or,
in the case of a proposed Advance, would not be ultimately recoverable from late
payments, Insurance Proceeds, Liquidation Proceeds and other collections on or
in respect of the related Mortgage Loan. The judgment or determination by the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent that it
has made a Nonrecoverable Advance or that any proposed Advance, if made, would
constitute a Nonrecoverable Advance shall be evidenced in the case of the Master
Servicer or Special Servicer, by a certificate of a Servicing Officer delivered
to the Trustee, the Fiscal Agent, the Depositor, each Rating Agency and, in the
case of the Special Servicer, to the Master Servicer, and in the case of the
Trustee or the Fiscal Agent, by a certificate of a Responsible Officer of the
Trustee or Fiscal Agent, as applicable, delivered to the Depositor (and the
Trustee if the certificate is from the Fiscal Agent), which in each case sets
forth such judgment or determination and the procedures and considerations of
the Master Servicer, Special Servicer, Trustee or Fiscal Agent, as
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applicable, forming the basis of such determination (including, but not limited
to, information selected by the Person making such judgment or determination in
its good faith discretion, such as related income and expense statements, rent
rolls, occupancy status, property inspections, Master Servicer, Special
Servicer, Trustee or Fiscal Agent inquiries, third party engineering and
environmental reports, and an appraisal conducted by an MAI appraiser in
accordance with MAI standards or any Updated Appraisal thereof conducted within
the past 12 months; copies of such documents to be included with the certificate
of a Responsible Officer). Any determination of non-recoverability made by the
Master Servicer may be made without regard to any value determination made by
the Special Servicer other than pursuant to an Updated Appraisal.
"Non-U.S. Person": A person that is not a U.S. Person.
"Note": With respect to any Mortgage Loan as of any date of
determination, the note or other evidence of indebtedness and/or agreements
evidencing the indebtedness of a Borrower under such Mortgage Loan, including
any amendments or modifications, or any renewal or substitution notes, as of
such date.
"Notice of Termination": Any of the notices given to the Trustee by
the Master Servicer, the Depositor or any Holder of a Class LR Certificate
pursuant to Section 9.01(c).
"Notional Amount": For any date of determination, (i) with respect
to the Class X-1 Certificates, a notional principal amount equal to the
aggregate of the Certificate Principal Amounts of the Group 1 Certificates
(other than the Class X-1 Certificates) as of the preceding Distribution Date
(after giving effect to the distributions of principal on such Distribution
Date) plus the amount of any unpaid Interest Shortfalls on such Classes or, in
the case of the first Distribution Date, as of the Closing Date, and (ii) with
respect to the Class X-2 Certificates, through and including the Distribution
Date in July 2004, a notional principal amount equal to the Certificate
Principal Amount of the Class C-2 Certificates as of the preceding Distribution
Date (after giving effect to the distributions of principal on such Distribution
Date) plus the amount of any unpaid Interest Shortfalls on such Class or, in the
case of the first Distribution Date, as of the Closing Date. Unless the Notional
Amount of the Class X-2 Certificates has been reduced to zero prior to such
date, the Class X-2 Certificates shall be retired following the distributions on
the Distribution Date in July 2004, and shall not have a Notional Amount
thereafter.
"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President
(however denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer of the
Master Servicer or the Special Servicer, as the case may be, customarily
performing functions similar to those performed by any of the above designated
officers and also with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject, or an authorized officer of the Depositor, and
delivered to the Depositor, the Trustee or the Master Servicer, as the case may
be.
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"Operating Statement Analysis": With respect to each Mortgaged
Property and REO Property, a report substantially containing the content
described in Exhibit P attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Master
Servicer, as the case may be, acceptable to the Trustee, except that any opinion
of counsel relating to (a) qualification of the Upper-Tier REMIC or Lower-Tier
REMIC as a REMIC or the imposition of tax under the REMIC Provisions on any
income or property of either REMIC, (b) compliance with the REMIC Provisions
(including application of the definition of "Independent Contractor"), (c)
qualification of the Grantor Trust as a grantor trust or (d) a resignation of
the Master Servicer pursuant to Section 6.04, must be an opinion of counsel who
is Independent of the Depositor, the Special Servicer and the Master Servicer.
"Originator": Each of (i) the Mortgage Loan Seller with respect to
the DDR/DRA Loan, the Courtyard Loan, the Worldwide Plaza Loan, the Valley View
Loan and the Sun Communities Loan, and (ii) Xxxxxx Brothers Realty Corporation
with respect to the Xxxxxxxx Loan, the Arden Loan and the Xxxxx Xxxxxx Loan.
"Ownership Interest": Any record or beneficial interest in a Class R
or Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the
Master Servicer, the Trustee, or the Fiscal Agent pursuant to Section 4.06. Each
reference to the payment or reimbursement of a P&I Advance shall be deemed to
include, whether or not specifically referred to but without duplication,
payment or reimbursement of interest thereon at the Advance Rate through the
date of payment or reimbursement.
"P&I Certificates": The Class A-1, Class A-2, Class A-3, Class B,
Class C-1, Class C-2, Class D, Class E and Class F Certificates collectively.
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Certificate (except the Class T, Class R
and Class LR Certificates), the percentage interest is equal to the initial
denomination of such Certificate divided by the initial Certificate Principal
Amount or Notional Amount, as applicable, of such Class of Certificates. With
respect to any Class T, Class R or Class LR Certificate, the percentage interest
is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities payable on demand or having a scheduled maturity on or
before the Business Day preceding the date upon which such funds are required to
be drawn, regardless of whether issued by the Depositor, the Master Servicer,
the Trustee or any of their respective Affiliates and having at all times the
required ratings, if any, provided for in this definition, unless each
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Rating Agency shall have confirmed in writing to the Master Servicer that a
lower rating would not, in and of itself, result in a downgrade, qualification
or withdrawal of the then current ratings assigned to the Certificates:
(i) obligations of, or obligations fully guaranteed as to payment
of principal and interest by, the United States or any agency
or instrumentality thereof provided such obligations are
backed by the full faith and credit of the United States of
America including, without limitation, obligations of: the
U.S. Treasury (all direct or fully guaranteed obligations),
the Farmers Home Administration (certificates of beneficial
ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed
Title XI financing), the Small Business Administration
(guaranteed participation certificates and guaranteed pool
certificates), the U.S. Department of Housing and Urban
Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit
bonds); provided, however, that the investments described in
this clause must (A) have a predetermined fixed dollar of
principal due at maturity that cannot vary or change, (B) if
such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index
plus a fixed spread (if any) and must move proportionately
with that index, and (C) such investments must not be subject
to liquidation prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government
sponsored agencies: Federal Home Loan Mortgage Corp. (debt
obligations), the Farm Credit System (consolidated systemwide
bonds and notes), the Federal Home Loan Banks (consolidated
debt obligations), the Federal National Mortgage Association
(debt obligations), the Student Loan Marketing Association
(debt obligations), the Financing Corp. (debt obligations),
and the Resolution Funding Corp. (debt obligations); provided,
however, that the investments described in this clause must
(A) have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change, (B) if such
investments have a variable rate of interest, such interest
rate must be tied to a single interest rate index plus a fixed
spread (if any) and must move proportionately with that index,
and (C) such investments must not be subject to liquidation
prior to their maturity;
(iv) federal funds, unsecured certificates of deposit, time or
similar deposits, bankers' acceptances and repurchase
agreements, with maturities of not more than 365 days, of any
bank, the short term obligations of which are rated in the
highest short term rating category by each Rating Agency
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(or, if not rated by Xxxxx'x, DCR or S&P, otherwise acceptable
to Xxxxx'x, DCR or S&P, as applicable, as confirmed in writing
that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates); provided, however, that
the investments described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change, (B) if such investments have a
variable rate of interest, such interest rate must be tied to
a single interest rate index plus a fixed spread (if any) and
must move proportionately with that index, and (C) such
investments must not be subject to liquidation prior to their
maturity;
(v) demand and time deposits in, or certificates of deposit of, or
bankers' acceptances issued by, any bank or trust company,
savings and loan association or savings bank, the short term
obligations of which are rated in the highest short term
rating category by each Rating Agency (or, if not rated by
Xxxxx'x, DCR or S&P, otherwise acceptable to Xxxxx'x, DCR or
S&P, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings
assigned to the Certificates); provided, however, that the
investments described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change, (B) if such investments have a
variable rate of interest, such interest rate must be tied to
a single interest rate index plus a fixed spread (if any) and
must move proportionately with that index, and (C) such
investments must not be subject to liquidation prior to their
maturity;
(vi) debt obligations with maturities of not more than 365 days
rated by each Rating Agency (or, if not rated by Xxxxx'x, DCR
or S&P, otherwise acceptable to Xxxxx'x, DCR or S&P, as
applicable, as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the
Certificates) in its highest long-term unsecured rating
category; provided, however, that the investments described in
this clause must (A) have a predetermined fixed dollar of
principal due at maturity that cannot vary or change, (B) if
such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index
plus a fixed spread (if any) and must move proportionately
with that index, and (C) such investments must not be subject
to liquidation prior to their maturity;
(vii) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand
or on a specified date not more than one year after the date
of issuance thereof)
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with maturities of not more than 365 days and that is rated by
each Rating Agency (or, if not rated by Xxxxx'x, DCR or S&P,
otherwise acceptable to Xxxxx'x, DCR or S&P, as applicable, as
confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates) in its
highest short-term unsecured debt rating; provided, however,
that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if such investments have a variable
rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(viii) the Federated Prime Obligation Money Market Fund (the "Fund")
so long as the Fund is rated by each Rating Agency in its
highest short-term unsecured debt ratings category (or, if not
rated by Xxxxx'x, DCR or S&P, otherwise acceptable to Xxxxx'x,
DCR or S&P, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings
assigned to the Certificates); and
(ix) any other demand, money market or time deposit, demand
obligation or any other obligation, security or investment,
provided that each Rating Agency has confirmed in writing to
the Master Servicer, Special Servicer or Trustee, as
applicable, that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates;
provided, however, that, in the judgment of the Master Servicer, such instrument
continues to qualify as a "cash flow investment" pursuant to Code Section
860G(a)(6) earning a passive return in the nature of interest and that no
instrument or security shall be a Permitted Investment if (i) such instrument or
security evidences a right to receive only interest payments or (ii) the right
to receive principal and interest payments derived from the underlying
investment provides a yield to maturity in excess of 120% of the yield to
maturity at par of such underlying investment.
Notwithstanding the foregoing, to the extent that the Loan Documents
with respect to a particular Mortgage Loan require the funds in the related
Borrower Accounts to be invested in investments other than those itemized in
clause (i) through (ix) above, the Master Servicer shall invest the funds in
such Borrower Accounts in accordance with the terms of the related Loan
Documents.
"Permitted Transferee": With respect to a Class R or Class LR
Certificate, any Person that is a Qualified Institutional Buyer other than (a) a
Disqualified Organization, (b) any
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other Person so designated by the Certificate Registrar based upon an Opinion of
Counsel (provided at the expense of such Person or the Person requesting the
Transfer) to the effect that the Transfer of an Ownership Interest in any Class
R or Class LR Certificate to such Person may cause the Upper-Tier REMIC or
Lower-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates
are outstanding, (c) a Person that is a Disqualified Non-U.S. Person and (d) a
Plan or any Person investing the assets of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(k).
"Xxxxxxxx Loan": The Mortgage Loan identified as No. 4 on the
Mortgage Loan Schedule.
"Prepayment Assumption": The assumption that all of the Mortgage
Loans (other than the DDR/DRA Loan) prepay on their respective Anticipated
Repayment Dates and that the DDR/DRA Loan is repaid on its final maturity date..
"Prepayment Interest Shortfall": With respect to any Distribution
Date and any Mortgage Loan, is equal to the amount of any shortfall in
collections of interest, adjusted to the applicable Net Mortgage Rate, resulting
from a Principal Prepayment on such Mortgage Loan during the related Collection
Period and prior to the Due Date in such Collection Period.
"Prepayment Premium": Payments received on a Mortgage Loan as the
result of the receipt of certain Unscheduled Payments (other than an amount paid
in connection with the release of the related Mortgaged Property through
defeasance), which are intended to compensate the holder of the related Note for
prepayment.
"Principal Distribution Amount": For any Distribution Date and
either Loan Group will be equal to the sum, without duplication, of:
(i) the principal component of all Scheduled Payments (other than
Balloon Payments) which become due on the Due Date immediately
preceding such Distribution Date (if received, or advanced by
the Master Servicer, Trustee or Fiscal Agent, in respect of
such Distribution Date) with respect to the Mortgage Loans or
Worldwide Components, as applicable, in such Loan Group;
(ii) the principal component of all Extended Scheduled Payments due
on the related Due Date (if received, or advanced by the
Master Servicer, the Special Servicer, Trustee or Fiscal
Agent, in respect of such Distribution Date) with respect to
the Mortgage Loans or Worldwide Components, as applicable, in
such Loan Group;
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(iii) the principal component of any payments (including any Balloon
Payment) on any Mortgage Loan or Worldwide Component in such
Loan Group received on or after the Maturity Date thereof in
the related Collection Period;
(iv) the portion of Unscheduled Payments allocable to principal of
any Mortgage Loan or Worldwide Component in such Loan Group
received or applied during the related Collection Period, net
of the principal portion of any xxxxxxxxxxxx X&X Advances
related to such Mortgage Loan or Worldwide Component;
(v) the principal portion of the Repurchase Price with respect to
each Mortgage Loan or Worldwide Component in such Loan Group
received or applied during the related Collection Period from
the Trust Fund pursuant to Section 2.03; and
(vi) the Principal Shortfall, if any, for such Distribution Date
and such Loan Group.
The principal component of the amounts set forth above shall
be determined in accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by a Borrower
on a Mortgage Loan which is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest representing the full amount
of scheduled interest due on any date or dates in any month or months subsequent
to the month of prepayment other than any amount paid in connection with the
release of the related Mortgaged Property through defeasance.
"Principal Shortfall": For any Distribution Date and any Loan Group,
the amount, if any, by which (i) the Principal Distribution Amount for such Loan
Group for the preceding Distribution Date, exceeds (ii) the aggregate amount
actually distributed with respect to principal on such preceding Distribution
Date in respect of such Principal Distribution Amount.
"Private Global Certificate": As defined in Section 5.01 hereof.
"Property Advance": As to any Mortgage Loan, any advance made by the
Master Servicer, Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses or any expenses incurred to protect, preserve and
enforce the security for a Mortgage Loan or taxes and assessments or insurance
premiums, pursuant to Section 3.04 or Section 3.22, as applicable. Each
reference to the payment or reimbursement of a Property Advance shall be deemed
to include, whether or not specifically referred to, payment or reimbursement of
interest thereon at the Advance Rate from and including the date of the making
of such Advance through and including the date of payment or reimbursement.
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"Property Protection Expenses": Any costs and expenses incurred by
the Master Servicer or the Special Servicer pursuant to Sections 3.04, 3.08,
3.10(f), 3.10(g), 3.10(i) and 3.17(b) or indicated herein as being a cost or
expense of the Trust Fund or the Lower-Tier REMIC to be advanced by the Master
Servicer or the Special Servicer, as applicable.
"Prospectus": The Depositor's Prospectus Supplement dated October
__, 1997 relating to the Class X-0, Xxxxx X-0, Class A-3, Class X-1, Class B,
Class C-1, Class C-2, Class X-2, Class D and Class E Certificates.
"Public Global Certificate": Each of the Class A-1, Class A-2, Class
A-3, Class X-1, Class B, Class C-1, Class C-2, Class X-2, Class D and Class E
Certificates so long as any such Class of Certificates is registered in the name
of a nominee of the Depository.
"Qualified Institutional Buyer": A qualified institutional buyer
within the meaning of Rule 144A.
"Qualified Insurer": As used in Sections 3.08 and 5.08, in the case
of (i) all policies not referred to in clause (ii) below, an insurance company
or security or bonding company qualified to write the related insurance policy
in the relevant state and whose claims paying ability is rated (a) no less than
one rating category less than the rating of the highest-rated Class of
Certificates, but in no event less than "A", by S&P and at least one other
nationally recognized statistical rating organizations and (b) at least AIX by
Best's Rating Guide, and (ii) in the case of the fidelity bond and the errors
and omissions insurance required to be maintained pursuant to Section 3.08(c),
shall have a claim paying ability rated by each Rating Agency no lower than two
ratings categories (without regard to pluses or minuses) lower than the highest
rating of any outstanding Class of Certificates from time to time, but in no
event lower than "BBB" by DCR and S&P and "Baa3" by Xxxxx'x (or, if such company
is not rated by DCR, rated at least in an equivalent category by at least two
nationally recognized statistical rating organizations), unless in the case
where such insurance is not rated by one or more Rating Agencies or where such
insurance has a claims paying ability rated by one or more Rating Agencies in a
rating category lower than required herein, each such Rating Agency has
confirmed in writing that obtaining the related insurance from an insurance
company that is not rated by such Rating Agency (subject to the foregoing
exceptions) or that has a lower claims paying ability than such requirements
shall not result, in and of itself, in a downgrade, qualification or withdrawal
of the then current ratings by such Rating Agency to any Class of Certificates;
provided, however, that Gulf Underwriters Insurance Company and Lexington
Insurance Company shall be Qualified Insurers for so long as there is no
downgrade, qualification or withdrawal of the ratings of such insurance
companies from their ratings as of the Cut-Off Date.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage"
within the meaning of Code Section 860G(a)(3) of the Code (but without regard to
the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage, or any substantially similar successor
provision).
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"Rated Final Distribution Date": The Distribution Date occurring in
October 2034.
"Rating Agency": Any of DCR, Xxxxx'x or S&P. References herein to
the highest long-term unsecured debt rating category of DCR and S&P shall mean
"AAA" and of Xxxxx'x shall mean "Aaa" and in the case of any other rating agency
shall mean such highest rating category or better without regard to any plus or
minus or numerical qualification.
"Real Property": Land or improvements thereon such as buildings or
other inherently permanent structures thereon (including items that are
structural components of the buildings or structures), in each such case as such
terms are used in the REMIC Provisions.
"Realized Loss": Either a Group 1 Realized Loss or a Group 2
Realized Loss.
"Reassignment of Assignment of Leases, Rents and Profits": As
defined in Section 2.01(viii).
"Record Date": With respect to each Distribution Date and each Class
of Certificates, other than the Group 2 Certificates, the close of business on
the last day of the month immediately preceding the month in which such
Distribution Date occurs, or if such day is not a Business Day, the immediately
preceding Business Day; with respect to each Distribution Date and the Group 2
Certificates, the close of business on the 9th day of the month in which such
Distribution Date occurs, or if such day is not a Business Day, the immediately
preceding Business Day.
"Regular Certificates": The Class A-1, Class A-2, Class A-3, Class
X-1, Class B, Class C-1, Class C-2, Class X-2, Class D, Class E and Class F
Certificates.
"Regulation D": Regulation D under the Act.
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"Related Certificates" and "Related Lower-Tier Regular Interest":
For any Class of Lower-Tier Regular Interests, the related Class of Certificates
set forth below, and for any Class of Certificates (other than the Class X-1,
Class X-2, Class T, Class R, and Class LR Certificates), the related Class of
Lower-Tier Regular Interest set forth below:
Related Lower-Tier
Related Certificates Regular Interest
-------------------- ----------------
Class A-1............... Class LA-1
Class A-2............... Class LA-2
Class A-3............... Class LA-3
Class B................. Class LB
Class C-1............... Class LC-1
Class C-2............... Class LC-2
Class D................. Class LD
Class E................. Class LE
Class F................. Class LF
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations (including any applicable proposed regulations) and
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code,
any amount received or accrued, directly or indirectly, with
respect to such REO Property, if the determination of such
amount depends in whole or in part on the income or profits
derived by any Person from such property (unless such amount
is a fixed percentage or percentages of receipts or sales and
otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from
any Person if the Trust Fund owns directly or indirectly
(including by attribution) a ten percent or greater interest
in such Person determined in accordance with Sections
856(d)(2)(B) and (d)(5) of the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates
such REO Property;
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(iv) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants
in buildings of a similar class in the same geographic market
as such REO Property within the meaning of Treasury
Regulations Section 1.856-4(b)(1) (whether or not such charges
are separately stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of
such REO Property and, for any taxable year of the Trust Fund,
such rent is no greater than 15 percent of the total rent
received or accrued under, or in connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the related
Mortgaged Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Mortgage Loan, all revenues received by the Special Servicer with respect to
such REO Property or REO Mortgage Loan which do not constitute Liquidation
Proceeds.
"REO Property": A Mortgaged Property title to which has been
acquired by the Master Servicer on behalf of the Trust Fund through foreclosure,
deed in lieu of foreclosure or otherwise.
"REO Status Report": A report substantially containing the content
described in Exhibit M attached hereto, setting forth, among other things, with
respect to each REO Property that was included in the Trust Fund as of the close
of business on the Due Date immediately preceding the preparation of such
report, (i) the acquisition date of such REO Property, (ii) the amount of income
collected with respect to any REO Property net of related expenses and other
amounts, if any, received on such REO Property during the related Collection
Period and (iii) the value of the REO Property based on the most recent
appraisal or other valuation thereof available to the Special Servicer as of
such date of determination (including any prepared internally by the Special
Servicer).
"Repurchase Price": With respect to a Mortgage Loan shall be equal
to the sum of:
(i) the outstanding principal balance of the Mortgage Loan as of
the Due Date as to which a payment was last made by the
related Borrower (less any P&I Advances previously made on
account of principal);
(ii) accrued interest up to the Due Date in the month following the
month in which such repurchase occurs (less P&I Advances
previously made on account of interest);
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(iii) the amount of any unreimbursed Advances (with interest
thereon)and any unreimbursed servicing compensation (with
interest thereon)and other reimbursable expenses relating to
such Mortgage Loan; and
(iv) any expenses reasonably incurred or to be incurred by the
Master Servicer, the Special Servicer or the Trustee in
respect of the breach or defect giving rise to a repurchase
obligation.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan, reserve
accounts, if any, established pursuant to the Mortgage or the Loan Agreement and
any Escrow Account. Any Reserve Account shall be beneficially owned for federal
income tax purposes by the Person who is entitled to receive the reinvestment
income or gain thereon in accordance with the terms and provisions of the
related Mortgage Loan and Section 3.07, which Person shall be taxed on all
reinvestment income or gain thereon. To the extent not inconsistent with the
related Mortgage Loan, each such Reserve Account shall be an Eligible Account.
"Residual Certificates": The Class R and Class LR Certificates.
"Responsible Officer": Any officer of the Asset-Backed Securities
Trust Services Group of the Trustee or the Fiscal Agent (and, in the event that
the Trustee is the Certificate Registrar or the Paying Agent, of the Certificate
Registrar or the Paying Agent, as applicable) assigned to the Corporate Trust
Office with direct responsibility for the administration of this Agreement and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, and, in the case of any certification required to be signed
by a Responsible Officer, such an officer whose name and specimen signature
appears on a list of corporate trust officers furnished to the Master Servicer
by the Trustee and the Fiscal Agent, as such list may from time to time be
amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Reuters Screen LIBOR Page" The display page designated as "LIBO" on
the Reuters Monitor Money Rates Service.
"Revised Mortgage Rate": With respect to any Mortgage Loan (other
than the DDR/DRA Loan), the revised Mortgage Rate at which interest accrues on
each such Mortgage Loan (in the absence of a default), following the related
Anticipated Repayment Date.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificates": As defined in Section 5.01.
"S&P": Standard & Poor's Ratings Services, or its successor in
interest.
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"Scheduled Final Distribution Date": The Distribution Date occurring
in October 2031.
"Scheduled Payment": With respect to any Mortgage Loan (other than
any REO Mortgage Loan) or any Worldwide Component and any Due Date, the
scheduled monthly payment of principal (if any) and interest at the related
Mortgage Rate that is payable by the related Borrower on such Due Date under the
related Note or Notes, but not including any Balloon Payment. The Scheduled
Payment with respect to an REO Mortgage Loan is the monthly payment that would
otherwise have been payable on the related Due Date had the related Note not
been discharged, determined as set forth in the preceding sentence and on the
assumption that all other amounts, if any, due thereunder are paid when due.
"Securities Legend": With respect to each Private Global
Certificate, Residual Certificate or any Individual Certificate, the legend set
forth in, and substantially in the form of, Exhibit F hereto.
"Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) 1/12th of the Servicing Fee Rate and (ii) the Stated Principal Balance of
such Mortgage Loan. Such amount includes the compensation payable to the Master
Servicer and the Trustee Fee. With respect to any Distribution Date, to the
extent that there are Prepayment Interest Shortfalls with respect to Principal
Prepayments received during the related Collection Period, the Servicing Fee to
which the Master Servicer would otherwise be entitled to with respect to all the
Mortgage Loans for such Distribution Date (but not the fees payable to the
Special Servicer or the Trustee) shall be reduced up to the amount sufficient to
fully offset such Prepayment Interest Shortfalls.
"Servicing Fee Rate": A rate equal to 0.019% per annum.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans or this Agreement and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's or employee's knowledge of and familiarity
with the particular subject, and, in the case of any certification required to
be signed by a Servicing Officer, such an officer or employee whose name and
specimen signature appears on a list of servicing officers furnished to the
Trustee by the Master Servicer or the Special Servicer, as applicable, as such
list may from time to time be amended.
"Servicing Standard": With respect to the Master Servicer or Special
Servicer shall mean the servicing of the Mortgage Loans by the Master Servicer
or Special Servicer in the best interests of and for the benefit of all of the
Certificateholders (as determined by the Master Servicer or Special Servicer as
the case may be, in the exercise of its good faith and reasonable judgment) and
in accordance with applicable law, the specific terms of the respective Mortgage
Loans and this Agreement and to the extent not inconsistent with the foregoing,
in the same manner in which, and with the same care, skill and diligence as is
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normal and usual in its general mortgage servicing and REO property management
activities on behalf of third parties or on behalf of itself, whichever is
higher, with respect to mortgage loans and REO properties that are comparable to
those for which it is responsible hereunder, and in each event with a view to
the timely collection of all scheduled payments of principal and interest under
the Mortgage Loans or, if a Mortgage Loan comes into and continues in default
and if, in the good faith and reasonable judgment of the Special Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery on such Mortgage Loan to the
Certificateholders (as a collective whole) on a present value basis (the
relevant discounting of anticipated collection that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate), but in any
case without regard to:
(i) any known relationship that the Master Servicer, the Special
Servicer or any Affiliate of the Master Servicer or the
Special Servicer may have with any Borrower or any other
parties to this Agreement;
(ii) the ownership of any Certificate by the Master Servicer, the
Special Servicer or any Affiliate of the Master Servicer or
Special Servicer, as applicable;
(iii) the Master Servicer's or Special Servicer's obligation to make
Advances;
(iv) the right of the Master Servicer (or any Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case
may be, to receive reimbursement of costs, or the sufficiency
of any compensation for its services hereunder or with respect
to any particular transaction; or
(v) the ownership, servicing or management for others or itself,
by the Master Servicer or the Special Servicer of any other
mortgage loans or properties.
"Special Event Report": As defined in Section 3.20.
"Special Servicer": GMACCM or any successor Special Servicer
appointed as provided herein.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicing Compensation": With respect to any Mortgage Loan,
any of the Special Servicing Fee, the Special Servicing Rehabilitation Fee, and
the Liquidation Fee which shall be due to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and any Distribution Date, an amount per Interest Accrual Period
equal to the product of (i) 1/12th of the Special Servicing Fee Rate and (ii)
the Stated Principal Balance of such Specially Serviced Mortgage Loan.
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"Special Servicing Fee Rate": A rate equal to 0.35% per annum.
"Special Servicing Rehabilitation Fee": As to any Mortgage Loan that
has been a Specially Serviced Mortgage Loan, on the occasion that such Mortgage
Loan has not been a Specially Serviced Mortgage Loan for three consecutive
Collection Periods (or 12 consecutive Collection Periods in the case of any
Mortgage Loan which became a Specially Serviced Mortgage Loan as a result of
circumstances described in clauses (iii) through (vii) of the definition
thereof), an amount equal to 0.75% of the highest Stated Principal Balance of
such Mortgage Loan while it was a Specially Serviced Mortgage Loan; provided,
however, that such Special Servicing Rehabilitation Fee shall be due only once
for each Mortgage Loan during the term of this Agreement.
"Specially Serviced Mortgage Loan": Subject to Section 3.24, any
Mortgage Loan with respect to which:
(i) the related Borrower has not made two consecutive Scheduled
Payments (and has not cured at least one such Delinquency by
the next Due Date under the related Mortgage Loan);
(ii) the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, individually or collectively, have made four
consecutive P&I Advances (regardless of whether such P&I
Advances have been reimbursed);
(iii) the related Borrower has expressed to the Master Servicer an
inability to pay or a hardship in paying the Mortgage Loan in
accordance with its terms;
(iv) the Master Servicer has received notice that the Borrower has
become the subject of any bankruptcy, insolvency or similar
proceeding, admitted in writing the inability to pay its debts
as they come due or made an assignment for the benefit of
creditors;
(v) the Master Servicer has received notice of a foreclosure or
threatened foreclosure of any lien on the Mortgaged Property
securing the Mortgage Loan;
(vi) a default of which (A) the Master Servicer has notice (other
than a failure by the Borrower to pay principal or interest)
and (B) which materially and adversely affects the interests
of the Certificateholders has occurred and remained unremedied
for the applicable grace period specified in the Mortgage Loan
(or, if no grace period is specified, 60 days); provided that
a default requiring a Property Advance shall be deemed to
materially and adversely affect the interests of the
Certificateholders; or
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(vii) in the opinion of the Master Servicer (consistent with the
Servicing Standard) a default under a Mortgage Loan is
imminent and such Mortgage Loan deserves the attention of the
Special Servicer;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(a) with respect to the circumstances described in clause
(i) and (ii) above, when the Borrower thereunder has
brought the Mortgage Loan current and thereafter made
three consecutive full and timely Scheduled Payments
including pursuant to any workout of the Mortgage Loan;
(b) with respect to the circumstances described in clause
(iii), (iv), (v) and (vii) above, when such
circumstances cease to exist in the good faith judgment
of the Master Servicer; or
(c) with respect to the circumstances described in clause
(vi) above, when such default is cured;
provided, in any case, that at that time no circumstance identified in clauses
(i) through (vii) above exists that would cause the Mortgage Loan to continue to
be characterized as a Specially Serviced Mortgage Loan.
"Startup Day": The day designated as such pursuant to Section
2.06(a) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan or
Worldwide Component at any date of determination, an amount equal to (a) the
principal balance as of the Cut-Off Date of such Mortgage Loan or Worldwide
Component, minus (b) the sum of (i) the principal portion of each Scheduled
Payment or, if applicable, Extended Scheduled Payment due on such Mortgage Loan
or applied to such Worldwide Component after the Cut-Off Date and prior to such
date of determination, if received from the Borrower or advanced by the Master
Servicer, Trustee, or Fiscal Agent, (ii) all Balloon Payments, voluntary and
involuntary principal prepayments and other unscheduled collections of principal
received with respect to such Mortgage Loan or applied to such Worldwide
Component, to the extent distributed to Certificateholders or applied to other
payments required under this Agreement before such date of determination and
(iii) any adjustment thereto as a result of a reduction of principal by a
bankruptcy court or as a result of a modification reducing the principal amount
due on such Mortgage Loan or Worldwide Component. The Stated Principal Balance
of a Mortgage Loan or Worldwide Component with respect to which title to the
related Mortgaged Property has been acquired by the Trust Fund is equal to the
principal balance thereof outstanding on the date on which such title is
acquired less any Net REO Proceeds allocated to principal on such Mortgage Loan
or Worldwide Component. The Stated Principal Balance of a Specially Serviced
Mortgage Loan with respect to which the Special Servicer has made a Final
Recovery Determination is zero.
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"Subordinate Certificates": Any of the Class B, Class C-1, Class D,
Class E and Class F Certificates.
"Sun Communities Loan": The Mortgage Loan identified as No. 8 on the
Mortgage Loan Schedule.
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of each of
the Upper-Tier REMIC or Lower-Tier REMIC under the REMIC Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the IRS or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Telerate Page 3750": The display designated as "Page 3750" on the
Dow Xxxxx Telerate Service (or such other page as may replace Page 3750 on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for U.S. Dollar deposits).
"Terminated Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of
assignment of any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-Off Date; (iii) any REO Property; (iv)
all revenues received in respect of any REO Property; (v) the Master Servicer's
and the Trustee's rights under the insurance policies with respect to the
Mortgage Loans required to be maintained pursuant to this Agreement and any
proceeds thereof; (vi) any Assignments of Leases, Rents and Profits and any
security agreements; (vii) any indemnities or guaranties given as additional
security for any Mortgage Loans; (viii) all assets deposited in the Lock-Box
Accounts, Escrow Accounts, Reserve Accounts (to the extent such assets in such
accounts are not assets of the respective Borrowers), the Collection Account,
the Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Excess Interest Distribution Account, the Interest Reserve Account, the Class T
Distribution Account and any REO
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Account including reinvestment income thereon; (ix) any environmental indemnity
agreements relating to the Mortgaged Properties; (x) the rights and remedies
under the Loan Sale Agreement; (xi) the proceeds of any of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Escrow Accounts,
and any Reserve Accounts, to the extent such interest belongs to the related
Borrower); and (xii) all of the mortgagee's right, title and interest under the
Interest Rate Cap Agreement.
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": LaSalle National Bank, a national banking association, in
its capacity as trustee, or its successor in interest, or any successor trustee
appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) 1/12th of the Trustee Fee Rate and (ii) the Stated Principal Balance of such
Mortgage Loan.
"Trustee Fee Rate": A rate equal to 0.004% per annum.
"Underwriter": Xxxxxx Brothers Inc.
"Unscheduled Payments": With respect to a Mortgage Loan and a
Collection Period, all Net Liquidation Proceeds and Net Insurance Proceeds
payable under such Mortgage Loan, any Principal Prepayment, the purchase price
of any Mortgage Loan that is purchased pursuant to Sections 3.18 or 9.01, and
any other payments under or with respect to such Mortgage Loan not scheduled to
be made, but excluding Prepayment Premiums, Excess Interest, Default Interest,
the Repurchase Price paid for any Mortgage Loan pursuant to Section 2.03, and
any amount paid in connection with the release of the related Mortgaged
Properties through defeasance.
"Updated Appraisal": An appraisal of a Mortgaged Property or REO
Property, as the case may be, conducted subsequent to any appraisal performed on
or prior to the Cut-Off Date and in accordance with MAI standards, the costs of
which shall be paid as a Property Advance by the Master Servicer. Updated
Appraisals shall be conducted by an MAI appraiser selected by the Master
Servicer.
"Upper-Tier Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(b), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Structured Asset Securities Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1997-LL I, Upper-Tier
Distribution Account" and which must be an Eligible Account.
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests (including all proceeds thereof)
and amounts held from time to time in the Upper-Tier Distribution Account.
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"U.S. Person": A person that 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, an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if (a) for taxable years beginning after December 31,
1996 (or for taxable years ending after August 20, 1996, if the trustee has made
an applicable election), a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust, or (b) for all other taxable years, such trust is subject to United
States federal income tax regardless of the source of its income.
"Valley View Loan": The Mortgage Loan identified as No. 7 on the
Mortgage Loan Schedule.
"Xxxxx Xxxxxx Loan": The Mortgage Loan identified as No. 6 on the
Mortgage Loan Schedule.
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate or Class of Certificates. At
all times during the term of this Agreement, the percentage of the Voting Rights
assigned to each Class shall be (a) 0%, in the case of the Class T, Class R and
Class LR Certificates, (b) 1.00%, in the case of the Class X-1 Certificates;
provided that the Voting Rights of the Class X-1 Certificates shall be reduced
to zero upon the reduction of the Notional Amount of each such Class to zero
(the sum of such percentages for each such Class outstanding is the "Fixed
Voting Rights Percentage"); (c) in the case of any of the Class A-1, Class A-2,
Class A-3, Class B, Class C-1, Class C-2, Class D, Class E and Class F
Certificates, a percentage equal to the product of (i) 100% minus the Fixed
Voting Rights Percentage multiplied by (ii) a fraction, the numerator of which
is equal to the aggregate outstanding Certificate Principal Amount of any such
Class (which will be reduced for this purpose by the amount of any Appraisal
Reduction Amounts notionally allocated to such Class, if applicable) and the
denominator of which is equal to the aggregate outstanding Certificate Principal
Amounts of all Classes of Certificates. The Class X-2 Certificates shall have no
Voting Rights. The Voting Rights of any Class of Certificates shall be allocated
among Holders of Certificates of such Class in proportion to their respective
Percentage Interests. The aggregate Voting Rights of Holders of more than one
Class of Certificates shall be equal to the sum of the products of each such
Holder's Voting Rights and the percentage of Voting Rights allocated to the
related Class of Certificates. Any Certificateholder may transfer its Voting
Rights without transferring its ownership interest in the related Certificates
provided that such Certificateholder provides notice of such transfer to the
Trustee prior to the effectiveness of such transfer.
"Watch List": A report substantially containing the content
described in Exhibit N attached hereto, setting forth, among other things, any
Mortgage Loan that is in jeopardy of becoming a Specially Serviced Mortgage
Loan.
"Withheld Amounts": As defined in Section 3.25.
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"Worldwide Components": Individually and collectively, the three
components of the Worldwide Plaza Loan, namely, the two fixed rate portions (the
"Worldwide Plaza Fixed Component A," having a principal balance as of the
Cut-Off Date of $118,576,031 and "Worldwide Plaza Fixed Component B," having a
principal balance as of the Cut-Off Date of $105,000,000) and the floating rate
portion (the "Worldwide Plaza LIBOR Component" having a principal balance as of
the Cut-Off Date of $50,000,000), each as identified on the Mortgage Loan
Schedule.
"Worldwide Plaza Fixed Component A": As defined herein under the
definition of Worldwide Components.
"Worldwide Plaza Fixed Component B": As defined herein under the
definition of Worldwide Components.
"Worldwide Plaza LIBOR Component": As defined herein under the
definition of Worldwide Components.
"Worldwide Plaza Loan": The Mortgage Loan identified as No. 3 on the
Mortgage Loan Schedule.
SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, the following provisions shall
apply:
(a) All calculations of interest with respect to the Mortgage Loans
shall be made in accordance with the terms of the related Note and Mortgage or,
if such documents do not specify the basis upon which interest accrues thereon,
on the basis of the actual number of days in each month and a 360-day year.
(b) The portion of any Insurance Proceeds and Net Liquidation
Proceeds in respect of a Mortgage Loan allocable to principal shall equal the
total amount of such proceeds minus (a) any portion thereof payable to the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent pursuant
to the provisions of this Agreement and (b) a portion thereof equal to the
interest component of the Scheduled Payment or Extended Scheduled Payment, as
the case may be, at the related Net Mortgage Rate from the date as to which
interest was last paid by the Borrower up to but not including the Due Date in
the Collection Period in which such proceeds are received.
(c) For purposes of distribution of Prepayment Premiums pursuant to
Section 4.01(c) on any Distribution Date, the Class of Certificates as to which
any prepayment shall be deemed to be distributed shall be determined on the
assumption that the portion of the Principal Distribution Amount paid to the
Certificates on such Distribution Date in respect of principal shall consist
first of scheduled payments included in the definition of Principal Distribution
Amount and second of prepayments included in such definition.
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(d) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Master Servicer or the Trustee;
provided, however, that for purposes of calculating distributions on the
Certificates, Principal Prepayments with respect to any Mortgage Loan are deemed
to be received on the date they are applied in accordance with Section 3.01(b)
to reduce the outstanding principal balance of such Mortgage Loan on which
interest accrues.
(e) Any amounts received in respect of a Mortgage Loan as to which a
default has occurred shall be applied to Default Interest and other amounts due
on such Mortgage Loan prior to the application to late fees.
SECTION 1.03. Certain Constructions.
For purposes of this Agreement, except where noted otherwise,
references to the most or next most subordinate Class of Group 1 Certificates
outstanding at any time shall mean the most or next most subordinate Class of
Certificates then outstanding as among the Class A-1, Class A-2, Class A-3,
Class X-1, Class B, Class C-1, Class D, Class E and Class F Certificates;
provided, however, that for purposes of determining the most subordinate Class
of Certificates, in the event that the Class A Certificates are the only Class
of Group 1 Certificates outstanding (other than the Class X-1 Certificates), the
Class A Certificates and the Class X-1 Certificates together will be treated as
the most subordinate Class of Certificates. For purposes of this Agreement, each
Class of Certificates other than the Class X-2, Class T, Class LR and Class R
Certificates shall be deemed to be outstanding only to the extent its respective
Certificate Principal Amount or Notional Amount has not been reduced to zero;
provided, however, that notwithstanding the foregoing, solely for the purpose of
distributing Excess Interest in accordance with the terms and priorities set
forth in Section 4.01(e), any Class of Certificates entitled to distributions of
Excess Interest shall continue to be deemed to be outstanding for so long as the
Mortgage Loans with respect to which such Class is entitled to distributions of
Excess Interest received therefrom (as set forth in Section 4.01(e)) remain
outstanding. The Class X-2 Certificates shall only remain outstanding through
and including the Distribution Date in July 2004, unless the Notional Balance
thereof has previously been reduced to zero. For purposes of this Agreement, the
Class T Certificates shall be deemed to be outstanding so long as there are any
Certificates outstanding and the Class R and Class LR Certificates shall be
deemed to be outstanding so long as the Trust REMICs have not been terminated
pursuant to Section 9.01.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Loan Sale
Agreement.
The Depositor, concurrently with the execution and delivery hereof,
does hereby establish a trust and appoint the Trustee to be the Trustee of such
trust and the Depositor does hereby sell, transfer, assign, set over and
otherwise convey to the Trustee without recourse (except to the extent herein
provided) all the right, title and interest of the Depositor in and to the
Mortgage Loans, including all rights to payment in respect thereof, except as
set forth below, and any security interest thereunder (whether in real or
personal property and whether tangible or intangible) in favor of the Depositor,
and all Reserve Accounts, Lock-Box Accounts and all other assets included or to
be included in the Trust Fund for the benefit of the Certificateholders. Such
transfer and assignment includes all interest and principal due on or with
respect to the Mortgage Loans other than interest and principal due on or prior
to the Cut-Off Date. In connection with such transfer and assignment, the
Depositor shall make a cash deposit to the Collection Account in an amount equal
to the Cash Deposit. The Depositor, concurrently with execution and delivery
hereof, does also hereby transfer, assign, set over and otherwise convey to the
Trustee without recourse (except to the extent provided herein) all the right,
title and interest of the Depositor in, to and under the Loan Sale Agreement.
The Depositor shall cause the Reserve Accounts and Lock-Box Accounts to be
transferred to and held in the name of the Master Servicer on behalf of the
Trustee as successor to the applicable Originator.
In connection with such transfer and assignment, the Depositor
shall, on or prior to the Closing Date, deliver to, and deposit with, the
Custodian (on behalf of the Trustee), with copies to the Master Servicer and
Special Servicer, the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the original of the Note, endorsed without recourse to the
order of the Trustee in the following form: "Pay to the order
of LaSalle National Bank, as Trustee for the Commercial
Mortgage Pass-Through Certificates, Series 1997-LL I, without
recourse" which Note and all endorsements thereon shall,
unless the Mortgage Loan was originated by the related
Originator, show a complete chain of endorsement from the
related Originator to the Trustee;
(ii) the original recorded Mortgage or counterpart thereof showing
the related Originator as mortgagee or, if any such original
Mortgage has not been returned from the applicable public
recording office, a copy
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thereof certified to be a true and complete copy of the
original thereof submitted for recording;
(iii) an executed Assignment of Mortgage in suitable form for
recordation in the state in which the Mortgaged Property is
located to "LaSalle National Bank, as Trustee for the
Commercial Mortgage Pass-Through Certificates, Series 1997-LL
I, without recourse";
(iv) if the related security agreement is separate from the
Mortgage, the original executed version or counterpart thereof
of such security agreement and the assignment thereof to the
Trustee;
(v) a copy of the UCC-1 financing statement, together with an
original executed UCC-2 or UCC-3 financing statement, in a
form suitable for filing, disclosing the assignment to the
Trustee of the security interest in the personal property (if
any) constituting security for repayment of the Mortgage Loan;
(vi) the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any;
(vii) the original lender's title insurance policy (or the original
pro forma title insurance policy), together with any
endorsements thereto;
(viii)if any related Assignment of Leases, Rents and Profits is
separate from the Mortgage, the original executed version or
counterpart thereof, together with an executed reassignment of
such instrument to the Trustee (a "Reassignment of Assignment
of Leases, Rents and Profits") in suitable form for
recordation in the state in which the Mortgaged Property is
located (which reassignment, however, may be included in the
Assignment of Mortgage and need not be a separate instrument);
(ix) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage
Loan, if any, and copies of the original environmental
indemnities, if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Properties and any consents of manager;
(xi) a copy of the related ground lease, if any, as amended, for
the Mortgaged Properties, if any;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of
contracts and the assignment thereof to the Trustee;
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(xiii)if any related Lock-Box Agreement is separate from the
Mortgage or Loan Agreement, a copy thereof; with respect to
the Reserve Accounts and Lock-Box Accounts, if any, a copy of
the UCC-1 financing statements, if any, submitted for filing
with respect to the related Originator's security interest in
the Reserve Accounts and Lock-Box Accounts and all funds
contained therein (and UCC-2 or UCC-3 financing statements
assigning such security interest to the Trustee on behalf of
the Certificateholders);
(xiv) any and all amendments, modifications and supplements to, and
waivers related to, any of the foregoing; and
(xv) any other written agreements related to the Mortgage Loan.
On or promptly following the Closing Date, the Trustee shall, to the
extent possession thereof has been delivered to it by the Depositor (or its
designee), at the expense of the Depositor, (1) record (a) each Assignment of
Mortgage referred to in Section 2.01(iii) which has not yet been submitted for
recording and (b) each Reassignment of Assignment of Leases, Rents and Profits
referred to in Section 2.01(viii) (if not otherwise included in the related
Assignment of Mortgage) which has not yet been submitted for recordation; and
(2) file each UCC-2 or UCC-3 financing statement referred to in Section 2.01(v)
or (xiii) which has not yet been submitted for filing. The Trustee shall upon
delivery promptly submit (and in no event later than the later of (i) five
Business Days following the receipt of the related documents and (ii) thirty
days after the Closing Date, in the case of clause 1(a) above and 60 days
following the Closing Date in the case of clauses 1(b) and 2 above) for
recording or filing, as the case may be, in the appropriate public recording
office, each such document. In the event that any such document is lost or
returned unrecorded because of a defect therein, the Depositor, or the Trustee,
at the request and expense of the Depositor, shall use its best efforts to
promptly prepare a substitute document for signature by the Depositor, and
thereafter the Trustee shall cause each such document to be duly recorded. The
Trustee shall, promptly upon receipt of the original recorded copy (and in no
event later than five Business Days following such receipt) deliver such
original to the Custodian. Notwithstanding anything to the contrary contained in
this Section 2.01, in those instances where the public recording office retains
the original Mortgage, Assignment of Mortgage or Reassignment of Assignment of
Leases, Rents and Profits, if applicable, after any has been recorded, the
obligations hereunder of the Depositor shall be deemed to have been satisfied
upon delivery to the Custodian of a copy of such Mortgage, Assignment of
Mortgage or Reassignment of Assignment of Leases, Rents and Profits, if
applicable, certified by the public recording office to be a true and complete
copy of the recorded original thereof. If a pro forma title insurance policy has
been delivered to the Custodian in lieu of an original title insurance policy,
the Depositor will promptly deliver to the Custodian the related original title
insurance policy upon receipt thereof. The Depositor shall promptly cause the
UCC-1's referred to in Section 2.01(v), if not already filed, to be filed in the
applicable public recording office and upon filing will promptly deliver to the
Custodian the related UCC-1, with evidence of filing thereon. The Depositor
shall pay all recording fees of the Trustee and shall reimburse the Trustee for
all out-of-pocket
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expenses incurred and filing fees paid by the Trustee in connection with its
obligations under this paragraph. Copies of such recorded or filed documents
shall be delivered to the Master Servicer by the Depositor or the Trustee, as
applicable.
All original documents relating to the Mortgage Loans which are not
delivered to the Custodian are and shall be held by the Depositor, the Trustee
or the Master Servicer, as the case may be, in trust for the benefit of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian.
SECTION 2.02. Acceptance by Custodian and the Trustee.
If the Depositor cannot deliver any original or certified recorded
document described in Section 2.01 on the Closing Date, the Depositor shall use
its best efforts, promptly upon receipt thereof and in any case not later than
45 days from the Closing Date, to deliver such original or certified recorded
documents to the Custodian (unless the Depositor is delayed in making such
delivery by reason of the fact that such documents shall not have been returned
by the appropriate recording office in which case it shall notify the Custodian
and the Trustee in writing of such delay and shall deliver such documents to the
Custodian promptly upon the Depositor's receipt thereof). By its execution and
delivery of this Agreement, the Trustee acknowledges the assignment to it of the
Mortgage Loans in good faith without notice of adverse claims and declares that
the Custodian holds and will hold such documents and all others delivered to it
constituting the Mortgage File (to the extent the documents constituting the
Mortgage File are actually delivered to the Custodian) for any Mortgage Loan
assigned to the Trustee hereunder in trust, upon the conditions herein set
forth, for the use and benefit of all present and future Certificateholders. The
Trustee agrees to review each Mortgage File within 45 days after the later of
(a) the Trustee's receipt of such Mortgage File or (b) execution and delivery of
this Agreement, to ascertain that all documents (other than the Environmental
Reports referred to in clause (ix) of Section 2.01 which shall be delivered to
the Master Servicer) referred to in Section 2.01 above (in the case of the
documents referred to in Section 2.01(iv), (v), (vi), (vii) (in the case of any
endorsement thereto) and (viii) and (x) through (xv), as identified to it in
writing by the Depositor) and any original recorded documents referred to in the
first sentence of this Section 2.02 included in the delivery of a Mortgage File
have been received, have been executed, appear to be what they purport to be,
purport to be recorded or filed (as applicable) and have not been torn,
mutilated or otherwise defaced, and that such documents relate to the Mortgage
Loans identified in the Mortgage Loan Schedule. In so doing, the Trustee may
rely on the purported due execution and genuineness of any such document and on
the purported genuineness of any signature thereon. If at the conclusion of such
review any document or documents constituting a part of a Mortgage File have not
been executed or received, have not been recorded or filed (if required), are
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule appear
not to be what they purport to be or have been torn, mutilated or otherwise
defaced, the Trustee shall promptly so notify the Depositor and the Mortgage
Loan Seller by providing a written report, setting forth for each affected
Mortgage Loan, with particularity, the nature of the defective or missing
document. The Depositor shall, or shall cause the applicable Originator to,
deliver an
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executed, recorded or undamaged document, as applicable, within 90 days of
receipt of such notice or, if the failure to deliver such document in such form
has a material adverse effect on the security provided by the related Mortgaged
Property, the Depositor shall, or shall cause the Mortgage Loan Seller to,
repurchase the related Mortgage Loan in the manner and within the time period
provided in Section 2.03. None of the Master Servicer, the Special Servicer and
the Trustee shall be responsible for any loss, cost, damage or expense to the
Trust Fund resulting from any failure to receive any document constituting a
portion of a Mortgage File noted on such a report.
The Trustee shall hold that portion of the Trust Fund delivered to
the Trustee consisting of "instruments" (as such term is defined in Section
9-105(i) of the Uniform Commercial Code as in effect in Illinois on the date
hereof) in Illinois and, except as otherwise specifically provided in this
Agreement, shall not remove such instruments from Illinois, as applicable,
unless it receives an Opinion of Counsel (obtained and delivered at the expense
of the Person requesting the removal of such instruments from Illinois) that in
the event the transfer of the Mortgage Loans to the Trustee is deemed not to be
a sale, after such removal, the Trustee will possess a first priority perfected
security interest in such instruments.
SECTION 2.03. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware;
(ii) The Depositor has taken all necessary action to
authorize the execution, delivery and performance of
this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all the
transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign and
transfer the Mortgage Loans in accordance with this
Agreement;
(iii) This Agreement has been duly and validly authorized,
executed and delivered by the Depositor and assuming the
due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and
all of the obligations of the Depositor hereunder are
the legal, valid and binding obligations of the
Depositor, enforceable in accordance with the terms of
this Agreement, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally, or
by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the
Depositor will not conflict with any
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provision of its certificate of incorporation or bylaws,
or any law or regulation to which the Depositor is
subject, or conflict with, result in a breach of or
constitute a default under (or an event which with
notice or lapse of time or both would constitute a
default under) any of the terms, conditions or
provisions of any agreement or instrument to which the
Depositor is a party or by which it is bound, or any
order or decree applicable to the Depositor, or result
in the creation or imposition of any lien on any of the
Depositor's assets or property, which would materially
and adversely affect the ability of the Depositor to
carry out the transactions contemplated by this
Agreement. The Depositor has obtained any consent,
approval, authorization or order of any court or
governmental agency or body required for the execution,
delivery and performance by the Depositor of this
Agreement;
(v) There is no action, suit or proceeding pending against
the Depositor in any court or by or before any other
governmental agency or instrumentality which would
materially and adversely affect the ability of the
Depositor to carry out its obligations under this
Agreement; and
(vi) The Trustee, if not the owner of the related Mortgage
Loan, will have a valid and perfected security interest
of first priority in each of the Mortgage Loans and any
proceeds thereof.
(b) The Depositor hereby represents and warrants with respect to
each Mortgage Loan, except as disclosed in Exhibit Q, that as of the date
specified below or, if no such date is specified, as of the Closing Date:
(i) Immediately prior to the transfer and assignment to the
Trust Fund, each related Note and Mortgage was not
subject to an assignment (other than to the Depositor)
or pledge, and the Depositor had good title to, and was
the sole owner of, such Mortgage Loan;
(ii) The Depositor has full right and authority to sell,
assign and transfer such Mortgage Loan;
(iii) The Depositor is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges or
security interests of any nature encumbering such
Mortgage Loan subject to matters described in clause
(xi) below;
(iv) Each related Note, Mortgage, Assignment of Leases and
Rents (if any) and other agreement executed in
connection with such Mortgage Loan are legal, valid and
binding obligations of the related Borrower, enforceable
in accordance with their terms, except as such
enforcement may be limited by bankruptcy,
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insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors rights generally,
or by general principles of equity (regardless of
whether such enforceability is considered in a
proceeding in equity or at law);
(v) Each related Assignment of Leases and Rents, if any,
creates a valid, first priority assignment of, or a
valid first priority security interest in, certain
rights under the related leases, subject only to a
license granted to the related Borrower to exercise
certain rights and to perform certain obligations of the
lessor under such leases, including the right to operate
the related Mortgaged Property; no person other than the
related Borrower owns any interest in any payments due
under such leases that is superior to or of equal
priority with the mortgagee's interest therein;
(vi) Each related assignment of Mortgage from the Depositor
to the Trust Fund constitutes the legal, valid and
binding assignment of such Mortgage from the Depositor
to the Trust Fund and any related Reassignment of
Assignment of Leases and Rents, if any, or assignment of
any other agreement executed in connection with such
Mortgage Loan, from the Depositor to the Trust Fund,
constitutes the legal, valid and binding assignment from
the Depositor to the Trust Fund, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or
other laws relating to or affecting creditors' rights
generally, or by general principles of equity
(regardless of whether such enforceability is considered
in a proceeding in equity or at law);
(vii) Since origination, and except as set forth in the
related Mortgage File, such Mortgage Loan has not been
waived, modified, altered, satisfied, canceled,
subordinated or rescinded, and each related Mortgaged
Property has not been released from the lien of the
related Mortgage in any manner that materially
interferes with the security intended to be provided by
such Mortgage;
(viii) Each related Mortgage is a valid and enforceable first
lien on the related Mortgaged Property (subject to the
matters described in clause (xi) below), and, as of the
date of the origination of such Mortgage Loan, such
Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are
insured against by a lender's title insurance policy (as
described below);
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(ix) The Depositor has not taken any action that would cause
the representations and warranties made by each related
Borrower in the Mortgage Loan not to be true;
(x) The Depositor has no knowledge that the representations
and warranties made by each related Borrower in such
Mortgage Loan are not true in any material respect;
(xi) The lien of each related Mortgage is insured by an ALTA
lender's title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Originator, its
successors and assigns, or the holder of the related
Note as to a valid and first priority lien on the
related Mortgaged Property and the first priority lien
of the Mortgage in at least the original principal
amount of such Mortgage Loan or Allocated Loan Amount of
the related Mortgaged Property (as set forth on the
Mortgage Loan Schedule which is an exhibit to the
Pooling and Servicing Agreement) after all advances of
principal, subject only to (A) the lien of current real
property taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable, (B) covenants,
conditions and restrictions, rights of way, easements
and other matters of public record, none of which,
individually or in the aggregate, materially interferes
with the current use or operation of the Mortgaged
Property or the security intended to be provided by such
Mortgage or with the related Borrower's ability to pay
its obligations when they become due or the value of the
Mortgaged Property and (C) the exceptions (general and
specific) set forth in such policy, none of which,
individually or in the aggregate, materially interferes
with the security intended to be provided by such
Mortgage or with the related Borrower's ability to pay
its obligations when they become due or the value, use
or operation of the Mortgaged Property; the Depositor or
its successors or assigns is the sole named insured of
such policy, and such policy is in full force and effect
upon the consummation of the transactions contemplated
by this Agreement; no claims have been made under such
policy, and the Depositor has not done anything, by act
or omission, and the Depositor has no knowledge of any
matter, that would impair or diminish the coverage of
such policy; to the extent required by applicable law,
the insurer issuing such policy is qualified to do
business in the jurisdiction in which the related
Mortgaged Properties are located;
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(xii) The proceeds of such Mortgage Loan have been fully
disbursed, and there is no requirement for future
advances thereunder, and the Depositor covenants that it
will not make any future advances under the Mortgage
Loan to the related Borrower;
(xiii) Based on inspection reports contained in the related
Mortgage File, which have been performed within twelve
months of the Closing Date, each related Mortgaged
Property is free of any material damage for which
amounts at least sufficient to cure such damage have not
been reserved or that would affect materially and
adversely the value of such Mortgaged Property as
security for the Mortgage Loan and is in good repair,
and there is no proceeding pending for the total or
partial condemnation of such Mortgaged Property;
(xiv) Each of the related Borrowers is in possession of all
material licenses, permits and other authorizations
necessary and required by all applicable laws for the
conduct of its business that if not obtained would have
a material adverse effect on the conduct of its business
or its ability to repay the related Mortgage Loan, and
all such licenses, permits and authorizations are valid
and in full force and effect, and if a related Mortgaged
Property is improved by a hotel, the most recent
inspection or review by the franchiser, if any, did not
cite such Mortgaged Property for material violations of
the related franchise agreement which have not been
cured;
(xv) The Depositor has inspected or caused to be inspected
each related Mortgaged Property within the past twelve
months preceding the Cut-off Date;
(xvi) Such Mortgage Loan does not have a shared appreciation
feature, other contingent interest feature or negative
amortization;
(xvii) Such Mortgage Loan is a whole loan and no other party
holds a participation interest in the Mortgage Loan.
Neither the Originator nor any of its affiliates has or
is entitled to any preferred or any other direct equity
interest in a Borrower;
(xviii) The Mortgage Rate (exclusive of any default interest
late charges, or prepayment premium) of such Mortgage
Loan complied as of the date of origination with, or is
exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury;
any and all other requirements of any federal, state or
local laws applicable to such Mortgage Loan have been
complied with as of the date of origination of such
Mortgage Loan;
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(xix) No fraudulent acts were committed by the related
Originator during the origination process of any such
Mortgage Loan;
(xx) All taxes and governmental assessments that prior to the
Closing Date became due and owing in respect of each
related Mortgaged Property have been paid, are being
appealed, or an escrow of funds in an amount sufficient
to cover such payments has been established;
(xxi) All escrow deposits and payments required pursuant to
the Mortgage Loans are in the possession, or under the
control, of the Seller or its agent, and there are no
deficiencies in connection therewith;
(xxii) To the extent required under applicable law, as of the
Cut-off Date, the related Originator was authorized to
transact and do business in the jurisdiction in which
each related Mortgaged Property is located at all times
when it held the Mortgage Loan;
(xxiii) Except as disclosed in the Prospectus, each related
Mortgaged Property is insured by a fire and extended
perils insurance policy, issued by an insurer, or
reinsured by a reinsurer, meeting the requirements of
the related Loan Documents, in an amount not less than
the replacement cost and the amount necessary to avoid
the operation of any co-insurance provisions with
respect to the Mortgaged Property; each related
Mortgaged Property is also covered by business
interruption insurance for a minimum of twelve months
and comprehensive general liability insurance in amounts
generally required by institutional lenders for similar
properties; all premiums on such insurance policies
required to be paid as of the date hereof have been
paid; such insurance policies require prior notice to
the insured of termination or cancellation, and no such
notice has been received; each related Mortgage or Loan
Agreement obligates the related Borrower to maintain all
such insurance and, at such Borrower's failure to do so,
authorizes the mortgagee to maintain such insurance at
the Borrower's cost and expense and to seek
reimbursement therefor from such Borrower;
(xxiv) There is no default, breach, violation or event of
acceleration existing under the related Mortgage or the
related Note and, to the Depositor's knowledge, no event
(other than payments due but not yet delinquent) which,
with the passage of time or with notice and the
expiration of any grace or cure period, would and
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does constitute a default, breach, violation or event of
acceleration;
(xxv) Such Mortgage Loan has not been more than one month past
due (as determined from the Due Date without giving
effect to grace periods) since origination and as of the
Cut-off Date was not one month or more past due;
(xxvi) Each related Mortgage contains customary and
enforceable provisions (subject to matters described in
clause (iv) above) such as to render the rights and
remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the
benefits of the security, including realization by
judicial or, if applicable, non-judicial foreclosure,
and there is no exemption available to the related
Borrower which would interfere with such right to
foreclose;
(xxvii) In each related Mortgage, Loan Agreement or other
agreement assigned to the Trustee, the related Borrower
represents and warrants that, except as set forth in
certain environmental reports or other documents
previously provided to the Rating Agencies and to the
best of its knowledge, 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 federal, state or
local laws, ordinances, regulations, orders, directives
or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials; the
related Borrower agrees to indemnify, defend and hold
the mortgagee and its successors and assigns harmless
from and against any and all losses, liabilities,
damages, injuries, penalties, fines, expenses, and
claims of any kind whatsoever (including reasonable
attorneys' fees and costs) paid, incurred or suffered
by, any such party resulting from a breach of certain
representations, warranties or covenants given by the
Borrower in such Mortgage or Loan Agreement, subject to
certain exceptions with respect to the culpability of
the indemnified parties; a Phase I environmental report
was conducted by a reputable environmental consultant in
connection with such Mortgage Loan, which report did not
indicate any material non-compliance or material
existence of Hazardous Materials, except as disclosed in
the Prospectus; to the extent such Phase I environmental
report identified any material non-compliance, such
material non-compliance either has been remediated or an
escrow of funds sufficient to effect such remediation
has been established; to the
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best of the Depositor's knowledge, each related
Mortgaged Property, except as disclosed in the
Prospectus, is in material compliance with all
applicable federal, state and local laws pertaining to
environmental hazards, and to the best of Depositor's
knowledge, except as disclosed in the Prospectus, no
notice of violation of such laws has been issued by any
governmental agency or authority; the Depositor has not
taken any action which would cause the related Mortgaged
Property not to be in compliance with all federal, state
and local laws pertaining to environmental hazards;
(xxviii) Each related Mortgage or Loan Agreement contains
provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if,
without complying with the requirements of the Mortgage
or Loan Agreement or obtaining the prior written consent
of the Mortgagee, the related Mortgaged Property, or any
interest therein, is directly or indirectly transferred
or sold, or encumbered in connection with subordinate
financing;
(xxix) To Depositor's knowledge, and in reliance upon an
opinion of counsel, (A) when the related UCC financing
statements are filed and indexed in the appropriate
state and local offices for such filing and indexing,
such filings shall be sufficient to perfect a lien on
the Mortgaged Property described therein to the extent a
security interest can be perfected under the UCC and (B)
no re-filing of such financing statements will be
necessary for the perfection of the lien intended to be
created or the enforcement of such Mortgage Loan against
the related Borrower, other than filing UCC continuation
statements with the appropriate state and local offices
as required under the law of the applicable state to
continue the perfection of the liens perfected by UCC
financing statements;
(xxx) (A) the Mortgage Loan is directly secured by one or more
Mortgages on commercial Real Property, and (B) the fair
market value of such Real Property was at least equal to
80% of the principal amount of the Mortgage Loan (1) at
origination (or if the Mortgage Loan has been modified
in a manner that constituted a deemed exchange under
Section 1001 of the Code at a time when the Mortgage
Loan was not in default or default with respect thereto
was not reasonably foreseeable, the date of the last
such modification) or (2) at the Closing Date; provided
that the fair market value of the Real Property must
first be reduced by (x) the amount of any lien on the
Real Property that is senior to
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the Mortgage Loan (unless such senior lien also secures
a Mortgage Loan, in which event the computation
described in clauses (1) and (2) shall be made on an
aggregated basis) and (y) a proportionate amount of any
lien that is in parity with the Mortgage Loan (unless
such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which
event the computation described in clauses (1) and (2)
shall be made on an aggregate basis);
(xxxi) With respect to each Mortgaged Property where the
estate of the related Borrower therein is a leasehold
estate;
(A) the related lease or a memorandum thereof has been
or will be duly recorded; such lease or an
estoppel letter or lender protective agreement
between the Depositor and the lessor under such
lease permits the interest of the lessee
thereunder to be encumbered by the related
Mortgage; and, to the best of Depositor's
knowledge, there has been no material amendment or
modification of such lease since its recordation,
with the exception of written amendments or
modifications which are part of the related
Mortgage File;
(B) except as may be indicated in the related title
insurance policy, to the best of Depositor's
knowledge, the lessee's interest in the related
lease and the leasehold estate created thereby is
not subject to any liens or encumbrances superior
to, or of equal priority with, the related
Mortgage;
(C) the Depositor and, subsequent to any assignment of
the related Mortgage, the Depositor's successors
and assigns, have the right to succeed to the
Borrower's interest in the related lease upon
notice to, but without the consent of, the lessor
thereunder (or, if any such consent is required,
it has been obtained prior to the Closing Date),
provided, in the event that Depositor, or its
successors and assigns, shall have succeeded to
the interest of the Borrower, as lessee under the
lease, by foreclosure of the related Mortgage or
acceptance of an assignment in lieu thereof or
other remedies available to the mortgagee, the
consent of such lessor may be required for any
subsequent assignment;
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(D) as of the date the related Mortgage Loan was made,
the related lease was in full force and effect
and, to such lessor's knowledge, no default had
occurred under such lease, nor, to such lessor's
knowledge, was there any then existing condition
which, but for the passage of time or the giving
of notice, would have resulted in a default under
the terms of such lease, and as of the date
hereof, Depositor has received no written notice
of a default or event of default on the part of a
Borrower from the lessor of such Borrower's lease;
(E) the related lease or an estoppel letter or lender
protective agreement requires the lessor
thereunder to give notice of any default by the
lessee to the mortgagee, provided that the
mortgagee has provided the lessor with notice of
its lien in accordance with the provisions of such
lease, estoppel letter or lender protective
agreement; the mortgagee has provided the lessor
with such notice;
(F) the related lease, estoppel letter or lender
protective agreement provides a mortgagee with a
reasonable opportunity (including, where
necessary, sufficient time to gain possession of
the interest of the lessee under such lease) to
cure any default under such lease, which is
curable after the receipt of notice of any such
default before the lessor thereunder may terminate
such lease;
(G) (1) the related lease has a term (including
renewals, if exercised) which extends not less
than ten years beyond the maturity date of the
related Mortgage Note and (2) to the extent that
the representation under the foregoing clause (1)
is based on the existence of renewal options, the
terms on which the related borrower has the right
to enter into such renewals, and any conditions to
the related borrower's right to enter into such
renewals, are commercially reasonable;
(H) under the terms of the related lease, estoppel
letter, lender protection agreement and the
related Mortgage, taken together, any insurance
proceeds other than in respect of a total or
substantially total loss or taking, will be
applied either (1) to the repair or restoration of
all or part of the related Mortgaged Property,
with the lessor, mortgagee or a depository
appointed pursuant to the terms of such lease
having the right to hold and disburse such
proceeds as the
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repair or restoration progresses, or (2) to the
payment of the outstanding principal balance of
the applicable Mortgage Loan together with any
accrued interest thereon;
(I) the related lease does not impose restrictions on
subletting of all or portions of the Mortgaged
Property by lessee which would be viewed, as of
the date of origination of such Mortgage Loan, as
commercially unreasonable by the Depositor; and
(J) the related lease or an estoppel letter provides
that in the event that a lessee in bankruptcy
rejects any or all of its leases; the leasehold
mortgagee will have the right to succeed to the
ground lessee's position under the lease, provided
that written notice has been sent to the lessor
and all defaults with respect to the lease are
cured.
(xxxii) The Mortgage Loan Schedule is complete and accurate in
all respects;
(xxxiii) No advance of funds has been made, directly or
indirectly, by the Depositor to any borrower and no
funds have been received from any person other than the
borrower for or on account of payments due on a Note or
Mortgage;
(xxxiv) No Mortgage Loan is secured by collateral that is not
included in the Trust Fund;
(xxxv) Each Mortgage Loan that is cross-collateralized is
cross-collateralized only with Notes included in the
Trust Fund; and
(xxxvi) Each Mortgaged Property that is located in a federally
designated flood hazard area is covered by an insurance
policy covering flood losses.
(xxxvii) There is no pending material action, suit, proceeding,
arbitration or governmental investigation against the
Borrower or Mortgaged Property an adverse outcome of
which would materially affect such Borrower's
performance under the loan documents or the holders of
the Certificates.
(xxxviii)The origination, servicing and collection practices
used by the Originators have been in all respects legal,
proper and prudent and have met customary industry
standards.
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(xxxix) The Note and Mortgage do not require the mortgagee to
release any material portion of a Mortgaged Property
from the lien of the Mortgage except upon payment in
full of the loan or the payment of 125% (or in the case
of the Xxxxxxxx Loan 115%) of the Allocated Loan Amount
of the related Mortgaged Property.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive delivery of the
respective Mortgage Files to the Trustee until the termination of this
Agreement, and shall inure to the benefit of the Certificateholders and the
Master Servicer.
(d) Upon discovery by the Custodian, the Master Servicer, the
Special Servicer, or the Trustee (a) of any breach of any representation or
warranty contained in Section 2.03(b)(i), (ii), (iii), (iv), (v), (vi), (vii),
(viii), (ix), (xi), (xii), (xv), (xvi), (xvii), (xviii), (xix), (xx), (xxii),
(xxiv), (xxix) or (xxx), (b) of any breach of any representation or warranty
contained in Section 2.03(b) (x), (xiii), (xiv), (xxi), (xxiii), (xxv), (xxvi),
(xxvii), (xxviii), (xxxi), (xxxii), (xxxiii), (xxxiv), (xxxv), (xxxvi),
(xxxvii), (xxxviii) or (xxxix) that materially and adversely affects the value
of such Mortgage Loan or the interests of the holders of the Certificates
therein or (c) that any document required to be included in the Mortgage File
does not conform to the requirements of Section 2.01, such Person shall give
prompt notice thereof to the Depositor and each Rating Agency, and the Depositor
shall either cure such breach or repurchase said Mortgage Loan at the Repurchase
Price within 90 days of the receipt of notice of the breach (or with respect to
the representation and warranty contained in Section 2(b)(xxx), discovery); it
being understood and agreed that none of the Custodian, the Master Servicer, the
Special Servicer or the Trustee has an obligation to conduct any investigation
with respect to such matters (except, in the case of the Mortgage Files, to the
extent provided in Section 2.01); provided, however, that in the event that such
breach or non-conformity is capable of being cured (other than a breach of
Section 2.03(b)(xxx)) but not within such 90 day period and the Depositor has
commenced and is diligently proceeding with the cure of such breach or
non-conformity within such 90 day period (other than a breach that would cause a
related Mortgage Loan to qualify as a Qualified Mortgage), the Depositor shall
have an additional 90 days to complete such cure; provided, further, that with
respect to such additional 90 day period the Depositor shall have delivered an
officer's certificate to the Trustee and the Master Servicer setting forth the
reason such breach is not capable of being cured within the initial 90 day
period and what actions the Depositor is pursuing in connection with the cure
thereof and stating that the Depositor anticipates that such breach will be
cured within the additional 90 day period; and, provided, further, that in the
event the Depositor fails to cure such breach within such additional 90-day
period, the Repurchase Price shall include interest on any Advances made in
respect of the related Mortgage Loan during such period.
(e) Upon receipt by the Master Servicer from the Depositor of the
Repurchase Price for the repurchased Mortgage Loan, the Master Servicer shall
deposit such amount in the Collection Account, and the Trustee, pursuant to
Section 3.11, shall, upon receipt of a certificate of a Servicing Officer
certifying as to the receipt by the Master Servicer of the Repurchase Price and
the deposit of the Repurchase Price into the Collection Account
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pursuant to this Section 2.03(e), release or cause to be released to the
Depositor the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be prepared by the Master Servicer to vest
in the Depositor any Mortgage Loan released pursuant hereto, and any rights of
the Depositor in, to and under the Loan Sale Agreement as it relates to such
Mortgage Loan that were initially transferred to the Trust Fund under Section
2.01, and the Trustee and the Master Servicer shall have no further
responsibility with regard to such Mortgage File.
(f) In the event that the Depositor incurs any expense in connection
with curing a breach of a representation or warranty pursuant to Section 2.03(d)
which also constitutes a default under the related Mortgage Loan, the Depositor
shall have a right, subrogated to that of the Trustee, as successor to the
mortgagee, to recover the amount of such expenses from the related Borrower. The
Master Servicer shall use reasonable efforts in recovering, or assisting the
Depositor in recovering, from the related Borrower the amount of any such
expenses.
SECTION 2.04. Representations, Warranties and Covenants of the
Master Servicer and Special Servicer.
(a) The Master Servicer, hereby represents, warrants and covenants
that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
California; the Master Servicer is and throughout the term of
this Agreement shall remain to the extent necessary duly
authorized and qualified to transact in the state where any
Mortgaged Property is located any and all business
contemplated by this Agreement; the Master Servicer possesses
and shall continue to possess all requisite authority, power,
licenses, permits, franchise, and approvals to conduct its
business and to execute, deliver, and comply with its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement and the Master
Servicer's performance of and compliance with the terms hereof
in the manner contemplated by this Agreement will not violate
the Articles of Incorporation or By-Laws of the Master
Servicer, or any other instrument governing its operations, or
any laws, regulations, orders or decrees of any governmental
authority applicable to the Master Servicer and will not
constitute a default (or any event which, with notice or lapse
of time or both, would constitute a default) under any
contract, agreement, or other instrument to which the Master
Servicer is a party or which may be applicable to any of its
assets;
(iii) The Agreement constitutes a valid, legal, and binding
obligation of the Master Servicer enforceable against it in
accordance with its terms,
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subject to bankruptcy laws and other similar laws of general
application affecting rights of creditors and subject to the
application of the rules of equity, including those respecting
the availability of specific performance;
(iv) The Agreement has been duly executed and delivered by the
Master Servicer;
(v) All consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any,
required for the execution, delivery and performance of this
Agreement by the Master Servicer have been obtained or made;
and
(vi) There is no pending action, suit or proceeding, arbitration or
governmental investigation against the Master Servicer the
outcome of which could reasonably be expected to materially
affect the Master Servicer's performance under this Agreement.
(b) The Special Servicer, hereby represents, warrants and covenants
that as of the Closing Date or as of such date specifically provided herein:
(i) The Special Servicer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
California; the Special Servicer is and throughout the term of
this Agreement shall remain to the extent necessary duly
authorized and qualified to transact in the state where any
Mortgaged Property is located any and all business
contemplated by this Agreement; the Special Servicer possesses
and shall continue to possess all requisite authority, power,
licenses, permits, franchise, and approvals to conduct its
business and to execute, deliver, and comply with its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement and the Special
Servicer's performance of and compliance with the terms hereof
in the manner contemplated by this Agreement will not violate
the Articles of Incorporation or By-Laws of the Special
Servicer, or any other instrument governing its operations, or
any laws, regulations, orders or decrees of any governmental
authority applicable to the Special Servicer and will not
constitute a default (or any event which, with notice or lapse
of time or both, would constitute a default) under any
contract, agreement, or other instrument to which the Special
Servicer is a party or which may be applicable to any of its
assets;
(iii) The Agreement constitutes a valid, legal, and binding
obligation of the Special Servicer enforceable against it in
accordance with its terms, subject to bankruptcy laws and
other similar laws of general application affecting rights of
creditors and subject to the application of the rules of
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equity, including those respecting the availability of
specific performance;
(iv) The Agreement has been duly executed and delivered by the
Special Servicer;
(v) All consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any,
required for the execution, delivery and performance of this
Agreement by the Special Servicer have been obtained or made;
and
(vi) There is no pending action, suit or proceeding, arbitration or
governmental investigation against the Special Servicer the
outcome of which could reasonably be expected to materially
affect the Special Servicer's performance under this
Agreement.
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive delivery of the respective
Mortgage Files to the Trustee or the Custodian on behalf of the Trustee until
the termination of this Agreement, and shall inure to the benefit of the
Trustee, the Depositor and the Master Servicer or Special Servicer, as the case
may be. Upon discovery by the Depositor, the Master Servicer, the Special
Servicer or a Responsible Officer of the Trustee (or upon written notice thereof
from any Certificateholder) of a breach of any of the representations and
warranties set forth in this Section which materially and adversely affects the
interests of the Certificateholders, the Master Servicer, the Special Servicer
or the Trustee in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties hereto.
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests .
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery of the Mortgage Files to the Custodian (to the extent the
documents constituting the Mortgage Files are actually delivered to the
Custodian), subject to the provisions of Section 2.01 and Section 2.02 and,
concurrently with such delivery, (i) the Trustee acknowledges the issuance of
the Lower-Tier Regular Interests to the Depositor and the execution,
authentication, and delivery of the Class LR Certificates to or upon the order
of the Depositor, evidencing ownership of the entire Lower-Tier REMIC, in
exchange for the Mortgage Loans (other than the Excess Interest and the Default
Interest), receipt of which is hereby acknowledged, (ii) the Depositor hereby
conveys all rights, title and interest in and to the Lower-Tier Regular
Interests to the Trustee, and (iii) the Trustee acknowledges that it has
executed and caused to be authenticated and delivered to and upon the order of
the Depositor, (A) in exchange for the Lower-Tier Regular Interests and Excess
Interest, the Regular Certificates and the Class R Certificates, and (B) in
exchange for the Default Interest, the Class T Certificates, in authorized
denominations, registered in the names set forth in such
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order and duly authenticated by the Trustee evidencing ownership of the
Upper-Tier REMIC and the undivided interests in the Grantor Trust set forth in
Section 2.06(b).
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class LA-1, Class LA-2, Class LA-3, Class LB, Class LC-1,
Class LC-2, Class LD, Class LE and Class LF Interests are hereby designated as
"regular interests" in the Lower-Tier REMIC within the meaning of Section
860G(a)(1) of the Code and the Class LR Certificates are hereby designated as
the sole class of "residual interests" in the Lower-Tier REMIC within the
meaning of Section 860G(a)(2) of the Code. The Class A-1, Class A-2, Class A-3,
Class X-1, Class B, Class C-1, Class X-2, Class C-2, Class D, Class E and Class
F Certificates are hereby designated as representing beneficial interests in
"regular interests" in the Upper-Tier REMIC within the meaning of Section
860G(a)(1) of the Code and the Class R Certificates are hereby designated as the
sole class of "residual interests" in the Upper-Tier REMIC within the meaning of
Section 860G(a)(2) of the Code. The Closing Date is hereby designated as the
"Startup Day" of the Lower-Tier REMIC and the Upper-Tier REMIC within the
meaning of Section 860G(a)(9) of the Code. The "latest possible maturity date"
of the Lower-Tier Regular Interests and the Regular Certificates (other than the
Class X-2 Certificates) is the Scheduled Final Distribution Date and the "latest
possible maturity date" of the Class X-2 Certificates is the Distribution Date
in July 2004 for purposes of Section 860G(a)(1) of the Code.
(b) The Class T Certificates represent pro rata undivided beneficial
interests in the Default Interest (subject to the liability of the Trust Fund to
pay interest on Advances at the Advance Rate), proceeds therefrom and the Class
T Distribution Account. The Class A-1, Class A-2, Class A-3, Class B, Class C-1,
Class D, Class E and Class F Certificates represent pro rata undivided
beneficial interests in any Excess Interest with respect to certain of the
Mortgage Loans as set forth in Section 4.01(e) and related portions of the
Excess Interest Distribution Account, pro rata based on their initial
Certificate Principal Amounts. The Class T Certificates do not represent regular
or residual interests in either the Upper-Tier REMIC or the Lower-Tier REMIC.
(c) None of the Depositor, the Trustee, the Master Servicer, the
Fiscal Agent or the Special Servicer shall enter into any arrangement by which
the Trust Fund will receive a fee or other compensation for services other than
as specifically contemplated herein.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration
of the Mortgage Loans.
(a) The Master Servicer and the Special Servicer, each as an
independent contractor, shall service and administer the Mortgage Loans on
behalf of the Trust Fund and the Trustee (as trustee for Certificateholders) in
accordance with the Servicing Standard. To the extent consistent with the
foregoing and subject to any express limitations set forth in this Agreement,
the Master Servicer or Special Servicer, as applicable, shall seek to maximize
the timely and complete recovery of principal and interest on the Mortgage
Loans. Subject only to the Servicing Standard, the Master Servicer and Special
Servicer shall have full power and authority, acting alone or through
sub-servicers (subject to paragraph (c) of this Section 3.01 and to Section
3.02), to do or cause to be done any and all things in connection with such
servicing and administration which it may deem consistent with the Servicing
Standard and, in its reasonable judgment, in the best interests of the
Certificateholders, including, without limitation, with respect to each Mortgage
Loan, to prepare, 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 on
each Mortgaged Property and related collateral; (ii) subject to Sections 3.09,
3.10 and 3.27, any modifications, waivers, consents or amendments 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, with respect to the
Mortgage Loans and the Mortgaged Properties. Notwithstanding the foregoing,
neither the Master Servicer nor the Special Servicer shall modify, amend, waive
or otherwise consent to any change of the terms of any Mortgage Loan except
under the circumstances described in Sections 3.09, 3.10, 3.26 and 3.27 or the
definition of Extended Scheduled Payment hereof. The Master Servicer and Special
Servicer shall service and administer the Mortgage Loans in accordance with
applicable law and shall provide to the Borrowers any reports required to be
provided to them thereby. Subject to Section 3.11, the Trustee shall, upon the
receipt of a written request of a Servicing Officer, execute and deliver to the
Master Servicer and Special Servicer any powers of attorney and other documents
prepared by the Master Servicer and Special Servicer and necessary or
appropriate (as certified in such written request) to enable the Master Servicer
and Special Servicer to carry out their servicing and administrative duties
hereunder. Each of the Master Servicer and the Special Servicer shall indemnify
the Trustee for any and all costs, liabilities and expenses incurred by the
Trustee in connection with the negligent or willful misuse of such powers of
attorney by the Master Servicer or the Special Servicer, as applicable.
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(b) Unless otherwise provided in the related Loan Documents, the
Master Servicer shall apply any partial Principal Prepayment received on a
Mortgage Loan on a date other than a Due Date to the principal balance of such
Mortgage Loan as of the Due Date immediately following the date of receipt of
such partial Principal Prepayment. Unless otherwise provided in the related Loan
Documents, the Master Servicer shall apply any amounts received on U.S. Treasury
obligations (which shall not be redeemed by the Master Servicer prior to the
maturity thereof) in respect of a Mortgage Loan being defeased pursuant to its
terms to the principal balance of and interest on such Mortgage Loan as of the
Due Date immediately following the receipt of such amounts.
(c) Each of the Master Servicer and the Special Servicer may enter
into sub-servicing agreements with third parties with respect to any of its
respective obligations hereunder, provided that (i) any such agreement shall be
consistent with the provisions of this Agreement, (ii) no sub-servicer retained
by the Master Servicer or the Special Servicer, as applicable, shall grant any
modification, waiver or amendment to any Mortgage Loan without the approval of
the Master Servicer or the Special Servicer, as applicable, which approval shall
be given or withheld in accordance with the procedures set forth in Sections
3.09, 3.10 3.26, 3.27, or the definition of Extended Scheduled Payment and (iii)
such agreement shall be consistent with the Servicing Standard. Any such
sub-servicing agreement may permit the sub-servicer to delegate its duties to
agents or subcontractors so long as the related agreements or arrangements with
such agents or subcontractors are consistent with the provisions of this Section
3.01(c). Any sub-servicing agreement entered into by the Master Servicer or the
Special Servicer, as applicable, shall provide that it may be assumed or
terminated by the Trustee, if the Trustee has assumed the duties of the Master
Servicer or the Special Servicer, or by any successor Master Servicer or Special
Servicer, as applicable, without cost or obligation to the assuming or
terminating party or the Trust Fund, upon the assumption by such party of the
obligations of the Master Servicer or the Special Servicer, as applicable,
pursuant to Section 7.02.
Any sub-servicing agreement, and any other transactions or services
relating to the Mortgage Loans involving a sub-servicer, shall be deemed to be
between the Master Servicer or the Special Servicer, as the case may be, and
such sub-servicer alone, and the Trustee, the Trust Fund and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the sub-servicer,
except as set forth in Section 3.01(d) and no provision herein may be construed
so as to require the Trust Fund to indemnify any such sub-servicer.
(d) If the Trustee or any successor Master Servicer assumes the
obligations of the Master Servicer, or if the Trustee or any successor Special
Servicer assumes the obligations of the Special Servicer, in each case in
accordance with Section 7.02, the Trustee or such successor, as applicable, to
the extent necessary to permit the Trustee or such successor, as applicable, to
carry out the provisions of Section 7.02, shall, without act or deed on the part
of the Trustee or such successor, as applicable, succeed to all of the rights
and obligations of the Master Servicer or the Special Servicer, as applicable,
under any sub-servicing agreement entered into by the Master Servicer or the
Special Servicer, as applicable,
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pursuant to Section 3.01(c), subject to the right of termination by the Trustee
set forth in Section 3.01(c). In such event, the Trustee or the successor Master
Servicer or the successor Special Servicer, as applicable, shall be deemed to
have assumed all of the Master Servicer's or the Special Servicer's interest, as
applicable, therein (but not any liabilities or obligations in respect of acts
or omissions of the Master Servicer or the Special Servicer, as applicable,
prior to such deemed assumption) and to have replaced the Master Servicer or the
Special Servicer, as applicable, as a party to such sub-servicing agreement to
the same extent as if such sub-servicing agreement had been assigned to the
Trustee or such successor Master Servicer or successor Special Servicer, as
applicable, except that the Master Servicer or Special Servicer, as applicable,
shall not thereby be relieved of any liability or obligations under such
sub-servicing agreement that accrued prior to the succession of the Trustee or
the successor Master Servicer or successor Special Servicer, as applicable.
In the event that the Trustee or any successor Master Servicer or
successor Special Servicer, as applicable, assumes the servicing obligations of
the Master Servicer or the Special Servicer, as applicable, upon request of the
Trustee, or such successor Master Servicer or Special Servicer, as applicable,
the Master Servicer or Special Servicer shall at its own expense deliver to the
Trustee or such successor Master Servicer or Special Servicer, as applicable,
all documents and records relating to any sub-servicing agreement and the
Mortgage Loans then being serviced thereunder and an accounting of amounts
collected and held by it, if any, and will otherwise use its best efforts to
effect the orderly and efficient transfer of any sub-servicing agreement to the
Trustee or the successor Master Servicer or Special Servicer, as applicable.
SECTION 3.02. Liability of the Master Servicer and Special Servicer.
Notwithstanding any sub-servicing agreement, any of the provisions
of this Agreement relating to agreements or arrangements between the Master
Servicer or Special Servicer and any Person acting as sub-servicer (or its
agents or subcontractors) or any reference to actions taken through any Person
acting as sub-servicer or otherwise, the Master Servicer or Special Servicer, as
applicable, shall remain obligated and primarily liable for the servicing and
administering of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
sub-servicing agreements or arrangements or by virtue of indemnification from
any Person acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Master Servicer or
Special Servicer, as applicable, alone were servicing and administering the
Mortgage Loans. Each of the Master Servicer and the Special Servicer shall be
entitled to enter into an agreement with any sub-servicer providing for
indemnification of the Master Servicer or Special Servicer, as applicable, by
such sub-servicer, and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification, but no such agreement for indemnification
shall be deemed to limit or modify this Agreement.
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SECTION 3.03. Collection of Certain Mortgage Loan Payments.
(a) The Master Servicer or the Special Servicer, as applicable,
shall use reasonable efforts to collect all payments called for under the terms
and provisions of the Mortgage Loans it is obligated to service hereunder, and
shall follow the Servicing Standard with respect to such collection procedures.
The Master Servicer or the Special Servicer, as applicable, shall use its
reasonable efforts to collect income statements, rent rolls and other reporting
information from Borrowers as required by the related Loan Documents and the
terms hereof. Consistent with the foregoing, the Master Servicer or Special
Servicer, as applicable, may in its discretion waive any late payment charge in
connection with any delinquent Scheduled Payment with respect to any Mortgage
Loan. In addition, the Master Servicer shall be entitled to take such actions
with respect to the collection of payments on the Mortgage Loans as are
permitted or required under Section 3.26 hereof.
(b) In the event that the Master Servicer or Special Servicer
receives, or receives notice from the related Borrower that it will be
receiving, Excess Interest in any Collection Period, the Master Servicer or
Special Servicer, as applicable, will promptly notify the Trustee.
SECTION 3.04. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) With respect to each Mortgage Loan (other than any REO Mortgage
Loan), the Master Servicer shall maintain accurate records with respect to each
related Mortgaged Property reflecting the status of taxes, assessments, ground
rents and other similar items that are or may become a lien on the related
Mortgaged Property and the status of insurance premiums payable with respect
thereto. From time to time, the Master Servicer shall (i) obtain all bills for
the payment of such items (including renewal premiums), and (ii) effect payment
of all such bills with respect to such Mortgaged Properties prior to the
applicable penalty or termination date, in each case employing for such purpose
Escrow Payments as allowed under the terms of the related Mortgage Loan. If a
Borrower fails to make any such payment on a timely basis or collections from
the Borrower are insufficient to pay any such item before the applicable penalty
or termination date, the Master Servicer shall advance the amount of any
shortfall as a Property Advance unless the Master Servicer determines in its
good faith business judgment that such Advance would be a Nonrecoverable
Advance. The Master Servicer shall be entitled to reimbursement of Advances,
with interest thereon at the Advance Rate, that it makes pursuant to the
preceding sentence from amounts received on or in respect of the related
Mortgage Loan respecting which such Advance was made or if such Advance has
become a Nonrecoverable Advance, to the extent permitted by Section 3.06 of this
Agreement. No costs incurred by the Master Servicer in effecting the payment of
taxes and assessments on the Mortgaged Properties shall, for the purpose of
calculating distributions to Certificateholders, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
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(b) The Master Servicer shall segregate and hold all funds collected
and received pursuant to any Mortgage Loan constituting Escrow Payments separate
and apart from any of its own funds and general assets and shall establish and
maintain one or more segregated custodial accounts (each, an "Escrow Account")
into which all Escrow Payments shall be deposited within one Business Day after
receipt. The Master Servicer shall also deposit into each applicable Escrow
Account any amounts representing losses on Permitted Investments pursuant to
Section 3.07(b) and any Insurance Proceeds or Liquidation Proceeds which are
required to be applied to the restoration or repair of any Mortgaged Property
pursuant to the related Mortgage Loan. Escrow Accounts shall be Eligible
Accounts (except to the extent the related Mortgage Loan requires or permits it
to be held in an account that is not an Eligible Account) and shall be entitled,
"GMAC Commercial Mortgage Corporation, as Master Servicer, in trust for LaSalle
National Bank, as Trustee in trust for Holders of Structured Asset Securities
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1997-LL I and
Various Borrowers". Withdrawals from an Escrow Account may be made by the Master
Servicer only:
(i) to effect, in accordance with the terms of the related
Mortgage Loan, timely payments of items constituting Escrow
Payments for the related Loan Documents;
(ii) to transfer funds to the Collection Account to reimburse the
Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, as applicable, for any Advance (with interest
thereon at the Advance Rate) relating to Escrow Payments, but
only from amounts received with respect to the related
Mortgage Loan which represent late collections of Escrow
Payments thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage
Loan and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement;
(v) to pay from time to time to the related Borrower (A) any
interest or investment income earned on funds deposited in the
Escrow Account if such income is required to be paid to the
related Borrower under law or by the terms of the Mortgage
Loan, or otherwise to the Master Servicer and (B) any other
funds required to be released to the related Borrowers
pursuant to the related Loan Documents; and
(vi) to remove any funds deposited in an Escrow Account that were
not required to be deposited therein.
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SECTION 3.05. Collection Account; Upper-Tier Distribution Account;
Lower-Tier Distribution Account; Class T Distribution
Account; and Excess Distribution Account .
(a) The Master Servicer shall establish and maintain the Collection
Account in the Trustee's name, for the benefit of the Certificateholders and the
Trustee as the Holder of the Lower-Tier Regular Interests. The Collection
Account shall be established and maintained as an Eligible Account. The Master
Servicer shall deposit or cause to be deposited in the Collection Account within
one Business Day following receipt the following payments and collections
received or made by it on or with respect to the Mortgage Loans:
(i) all payments on account of principal on the Mortgage Loans,
including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans and
the interest portion of all Unscheduled Payments;
(iii) all Prepayment Premiums;
(iv) any amounts required to be deposited pursuant to Section
3.07(b) in connection with net losses realized on Permitted
Investments with respect to funds held in the Collection
Account;
(v) all Net REO Proceeds withdrawn from an REO Account pursuant to
Section 3.17(b) and all Net Insurance Proceeds and Net
Liquidation Proceeds;
(vi) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses, to the extent not permitted
to be retained by the Master Servicer as provided herein; and
(vii) any other amounts required by the provisions of this Agreement
to be deposited into the Collection Account by the Master
Servicer or Special Servicer, including, without limitation,
proceeds of any repurchase of a Mortgage Loan pursuant to
Sections 2.03(d) hereof.
The foregoing requirements for deposits in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges
(subject to Section 3.12 hereof), Assumption Fees, loan modification fees, loan
service transaction fees, extension fees, demand fees, beneficiary statement
charges and similar fees need not be deposited in the Collection Account by the
Master Servicer and, to the extent permitted by applicable law, the Master
Servicer shall be entitled to retain any such charges and fees received with
respect to the Mortgage Loans. In the event that the Master Servicer deposits in
the Collection Account any amount not required to be deposited therein, it may
at any time withdraw such amount from the Collection Account, any provision
herein to the contrary notwithstanding. The Master Servicer shall give written
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notice to the Trustee of the location and account number of the Collection
Account and shall notify the Trustee in writing of any subsequent change
thereof.
(b) The Trustee shall establish and maintain (i) the Lower-Tier
Distribution Account in the name of the Trustee, in trust for the benefit of the
Certificateholders and the Trustee as the Holder of the Lower-Tier Regular
Interests and (ii) the Upper-Tier Distribution Account in the name of the
Trustee, in trust for the benefit of the Certificateholders. The Lower-Tier
Distribution Account and Upper-Tier Distribution Account shall be established
and maintained as Eligible Accounts. With respect to each Distribution Date, on
or before such date the Trustee shall make the withdrawals from the Lower-Tier
Distribution Account as set forth in Section 4.01 hereof, shall make the
deposits into the Upper-Tier Distribution Account, as set forth in Section 4.01
hereof, and shall cause the amount of Available Funds (including P&I Advances)
and Prepayment Premiums to be distributed in respect of the Certificates,
pursuant to Section 4.01 hereof on such date.
(c) The Trustee shall establish and maintain the Class T
Distribution Account in the name of the Trustee in trust for the benefit of the
Holders of the Class T Certificates. The Class T Distribution Account shall be
established and maintained as an Eligible Account. In addition, on or before the
Master Servicer Remittance Date related to each Distribution Date, the Master
Servicer shall remit to the Trustee for deposit in the Class T Distribution
Account an amount equal to (i) the amount of the aggregate Default Interest
received during the preceding Collection Period, minus (ii) any portions thereof
withdrawn from the Collection Account pursuant to clause (ii) and (iii) of
Section 3.06 or otherwise applied to pay the Advance Interest Amount in respect
of Advances (such amount, if any, the "Net Default Interest" for such
Distribution Date).
(d) Prior to the Master Servicer Remittance Date relating to the
Collection Period, if any, in which Excess Interest is received, the Trustee
shall establish and maintain the Excess Interest Distribution Account in the
name of the Trustee in trust for the benefit of the Certificateholders as set
forth in Section 2.06(b). The Excess Interest Distribution Account shall be
established and maintained as an Eligible Account. On or before the Master
Servicer Remittance Date related to the applicable Distribution Date, the Master
Servicer shall remit to the Trustee for deposit in the Excess Interest
Distribution Account an amount equal to the Excess Interest received during the
applicable Collection Period.
Following the distribution of Excess Interest to Certificateholders
on the first Distribution Date after which there are no longer any Mortgage
Loans outstanding which pursuant to their terms could pay Excess Interest, the
Trustee shall terminate the Excess Interest Distribution Account.
(e) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.07.
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SECTION 3.06. Permitted Withdrawals from the Collection Account.
The Master Servicer may make withdrawals from the Collection Account
only as described below (the order set forth below not constituting an order of
priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Lower-Tier
Distribution Account, the Class T Distribution Account, the
Interest Reserve Account and the Excess Interest Distribution
Account, the amounts required to be deposited in the
Lower-Tier Distribution Account, the Class T Distribution
Account, the Interest Reserve Account and the Excess Interest
Distribution Account pursuant to Sections 4.01(a)(i), 3.05(c),
3.25 and 3.05(d), respectively;
(ii) to pay or reimburse the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent for Advances and any related
Advance Interest Amounts (provided that the Trustee and the
Fiscal Agent shall have priority with respect to such payment
or reimbursement), the Master Servicer's right to reimburse
any such Person pursuant to this clause (ii) being limited to
(x) any collections on or in respect of the particular
Mortgage Loan or REO Property respecting which such Advance
was made, or (y) any other amounts in the Collection Account
in the event that such Advances have been deemed to be
Nonrecoverable Advances or are not recovered from such
recoveries in respect of the related Mortgage Loan or REO
Property after a Final Recovery Determination;
(iii) to pay on or before each Master Servicer Remittance Date to
the Master Servicer and the Special Servicer, as applicable,
as compensation, the aggregate unpaid Servicing Fee and
Special Servicing Compensation (if any), respectively, in
respect of the immediately preceding Interest Accrual Period,
to be paid, in the case of the Servicing Fee, from interest
received on the related Mortgage Loan, and to pay from time to
time to the Master Servicer in accordance with Section 3.07(b)
any interest or investment income earned on funds deposited in
the Collection Account;
(iv) to pay on or before each Distribution Date to the Depositor,
the Mortgage Loan Seller or any other applicable Person as the
case may be, with respect to each Mortgage Loan or REO
Property that has previously been purchased or repurchased by
it pursuant to Section 2.03(d), Section 3.18 or Section 9.01,
all amounts received thereon during the related Collection
Period and subsequent to the date as of which the amount
required to effect such purchase or repurchase was determined;
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(v) to the extent not reimbursed or paid pursuant to any other
clause of this Section 3.06, to reimburse or pay the Master
Servicer, the Trustee, the Special Servicer, the Depositor or
the Fiscal Agent, as applicable, for unpaid Servicing Fees,
Special Servicing Compensation and other unpaid items incurred
by such Person pursuant to the second sentence of Section
3.07(c), Section 3.08(a) and (b), Section 3.10, Section
3.12(d), Section 3.17(a), Section 3.18(b), Section 6.03,
Section 7.04, Section 8.05(d) or Section 10.07, or any other
provision of this Agreement pursuant to which such Person is
entitled to reimbursement or payment from the Trust Fund, in
each case only to the extent expressly reimbursable under such
Section, it being acknowledged that this clause (v) shall not
be deemed to modify the substance of any such Section,
including the provisions of such Section that set forth the
extent to which one of the foregoing Persons is or is not
entitled to payment or reimbursement;
(vi) to transfer to the Trustee for deposit in one or more
separate, non-interest bearing accounts any amount reasonably
determined by the Trustee to be necessary to pay any
applicable federal, state or local taxes imposed on the
Upper-Tier REMIC or the Lower-Tier REMIC under the
circumstances and to the extent described in Section 4.05;
(vii) to withdraw any amount deposited into the Collection Account
that was not required to be deposited therein; and
(viii) to clear and terminate the Collection Account pursuant to
Section 9.01.
The Master Servicer shall keep and maintain separate accounting, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to subclauses (ii)-(v) above.
The Master Servicer shall pay to the Trustee, the Fiscal Agent or
the Special Servicer from the Collection Account amounts permitted to be paid to
the Trustee, the Fiscal Agent or the Special Servicer therefrom as set forth
above, promptly upon receipt of a certificate of a Responsible Officer of the
Trustee or the Fiscal Agent or a certificate of a Servicing Officer, as
applicable, describing the item and amount to which such Person is entitled. The
Master Servicer may conclusively rely on any such certificate and shall have no
duty to recalculate the amounts stated therein.
The Trustee, the Fiscal Agent, the Special Servicer and the Master
Servicer shall in all cases have a right prior to the Certificateholders to any
funds on deposit in the Collection Account from time to time for the
reimbursement or payment of the Servicing Fees (including investment income), or
Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts
and their respective expenses hereunder to the extent such fees and expenses are
to be reimbursed or paid from amounts on deposit in the Collection Account
pursuant to this Agreement (and to have such amounts paid directly to third
party contractors
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for any invoices approved by the Trustee, the Master Servicer or the Special
Servicer, as applicable).
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account, the Class T Distribution Account, the Interest Reserve
Account and the Excess Interest Distribution Account any and all amounts
received by the Trustee in accordance with Section 3.06(i). If, as of 3:00 p.m.,
New York City time, on any Master Servicer Remittance Date or on such other date
as any amount referred to in the foregoing clause (i) is required to be
delivered hereunder, the Master Servicer shall not have delivered to the Trustee
for deposit in the Lower-Tier Distribution Account, the Class T Distribution
Account, the Interest Reserve Account and the Excess Interest Distribution
Account the amounts required to be deposited therein pursuant to Section
3.06(i), then the Trustee shall, to the extent that a Responsible Officer of the
Trustee has such knowledge, provide notice of such failure to the Master
Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such
alternative number provided by the Master Servicer to the Trustee in writing)
and by telephone at telephone no. (000) 000-0000 (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 day.
SECTION 3.07. Investment of Funds in the Collection Account, the REO
Account, the Interest Reserve Account, the Borrower
Accounts, and Other Accounts.
(a) The Master Servicer (or with respect to any REO Account, the
Special Servicer) may direct any Depository institution maintaining the
Collection Account and any Borrower Accounts (subject to the second succeeding
sentence) and any REO Account (each, for purposes of this Section 3.07, an
"Investment Account"), to invest the funds in such Investment 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 preceding
the date on which such funds are required to be withdrawn from such Investment
Account pursuant to this Agreement. Any direction by the Master Servicer or the
Special Servicer, to invest funds on deposit in an Investment Account shall be
in writing and shall certify that the requested investment is a Permitted
Investment which matures at or prior to the time required hereby or is payable
on demand. In the case of any Escrow Account, Lock-Box Account, or Reserve
Account (the "Borrower Accounts"), the Master Servicer shall act upon the
written request of the related Borrower or Manager to the extent the Master
Servicer is required to do so under the terms of the respective Mortgage Loan or
related documents, provided that in the absence of appropriate written
instructions from the related Borrower or Manager meeting the requirements of
this Section 3.07, the Master Servicer shall have no obligation to, but will be
entitled to, direct the investment of funds in such accounts in Permitted
Investments. 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) or in the name of a
nominee of the Trustee. The Trustee shall have sole control (except with respect
to investment direction which shall be in the control of the Master Servicer, or
the Special Servicer, with respect to any REO Accounts), as an independent
contractor to the Trust
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Fund) over each such investment and any certificate or other instrument
evidencing any such investment shall be delivered directly to the Trustee or its
agent (which shall initially be the Master Servicer), together with any document
of transfer, if any, necessary to transfer title to such investment to the
Trustee or its nominee. The Trustee shall have no responsibility or liability
with respect to the investment directions of the Master Servicer or the Special
Servicer, any Borrower or Manager or any losses resulting therefrom, whether
from Permitted Investments or otherwise. In the event amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the Master Servicer (or the Special Servicer), 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 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) that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the related
Investment Account.
(b) All income and gain realized from investment of funds deposited
in any Investment Account shall be for the benefit of the Master Servicer
(except with respect to the investment of funds deposited in (i) any Borrower
Account, which shall be for the benefit of the related Borrower to the extent
required under the Mortgage Loan or applicable law or (ii) any REO Account,
which shall be for the benefit of the Special Servicer, and, if held in the
Collection Account or REO Account shall be subject to withdrawal by the Master
Servicer or the Special Servicer, as applicable, in accordance with Section 3.06
or Section 3.17(b), as applicable. The Master Servicer (or with respect to any
REO Account, the Special Servicer) shall deposit from its own funds into any
applicable Investment Account, the amount of any loss incurred in respect of any
such Permitted Investment immediately upon realization of such loss; provided,
however, that the Master Servicer or Special Servicer, as applicable, may reduce
the amount of such payment to the extent it forgoes any investment income in
such Investment Account otherwise payable to it. The Master Servicer shall also
deposit from its own funds in any Borrower Account the amount of any loss
incurred in respect of Permitted Investments, except to the extent that amounts
are invested for the benefit of the Borrower under the terms of the Mortgage
Loan or applicable law.
All amounts on deposit in the Lower-Tier Distribution Account, the
Upper-Tier Distribution Account and the Class T Distribution Account shall be
held uninvested.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and upon the request of Holders of Certificates
representing greater than 50% of the Percentage Interests of any Class (provided
that the Class T Certificateholders shall only have such ability with respect to
the Class T Distribution Account) shall, take such action as may be appropriate
to enforce such payment or performance, including the institution and
prosecution of appropriate proceedings. In the event the Trustee takes any such
action, the Trust Fund shall pay or
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reimburse the Trustee for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by the Trustee in connection therewith. In the
event that the Trustee does not take any such action, the Master Servicer may,
but is not obligated to, take such action at its own cost and expense.
SECTION 3.08. Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer on behalf of the Trustee, as mortgagee,
shall use reasonable best efforts to cause the related Borrower to maintain, to
the extent required by each Mortgage Loan (other than REO Mortgage Loans), and
if the Borrower does not so maintain, shall itself maintain (subject to the
provisions of this Agreement concerning Nonrecoverable Advances to the extent
the Trustee as mortgagee has an insurable interest and to the extent available
at commercially reasonable rates), (i) fire and hazard insurance with extended
coverage on the related Mortgaged Property in an amount which is at least equal
to the lesser of (A) one hundred percent (100%) of the then "full replacement
cost" of the improvements and equipment, (excluding foundations, footings and
excavation costs), without deduction for physical depreciation, and (B) the
outstanding principal balance of the related Mortgage Loan or such greater
amount as is necessary to prevent any reduction in such policy by reason of the
application of co-insurance provisions and to prevent the Trustee thereunder
from being deemed to be a co-insurer and provided such policy shall include a
"replacement cost" rider, (ii) insurance providing coverage against 18 months
(or such longer period or with such extended period endorsement as provided in
the related Mortgage or other Loan Document) of rent interruptions and (iii)
such other insurance as is required in the related Mortgage Loan. The Special
Servicer shall maintain fire and hazard insurance with extended coverage on each
REO Property (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) in an amount which is at least equal to one hundred
percent (100%) of the then "full replacement cost" of the improvements and
equipment (excluding foundations, footings and excavation costs), without
deduction for physical depreciation. If the Special Servicer does not maintain
the insurance described in the preceding sentence or the required flood
insurance described below, the Master Servicer shall, as soon as practicable
after receipt of notice of such failure, maintain such insurance, and if the
Master Servicer does not maintain such insurance, the insurance required in the
first sentence of this Section 3.08(a) or the required flood insurance described
below (if the related Borrower fails to maintain such insurance), the Trustee
shall, as soon as practicable after receipt of notice of such failure, maintain
such insurance and if the Trustee does not maintain such insurance, the Fiscal
Agent shall do so, provided that, in each such case, such obligation will be
subject to the provisions of this Agreement concerning Nonrecoverable Advances
and to the availability of such insurance at commercially reasonable rates. The
Special Servicer shall maintain, with respect to each REO Property (i) public
liability insurance providing such coverage against such risks as the Special
Servicer determines, consistent with the related Loan Documents and the
Servicing Standard, to be in the best interests of the Trust Fund, (ii)
insurance providing coverage against 18 months (or such longer period of time as
is consistent with the Loan Documents and the Servicing Standard) of rent
interruptions and (iii) such other insurance as was required pursuant to the
terms of the related Mortgage Loan. All insurance for an REO
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Property shall be from a Qualified Insurer. Any amounts collected by the Master
Servicer or the Special Servicer under any such policies (other than amounts
required to be applied to the restoration or repair of the related Mortgaged
Property or amounts to be released to the Borrower in accordance with the terms
of the related Loan Documents) shall be deposited into the Collection Account
pursuant to Section 3.05, subject to withdrawal pursuant to Section 3.06. Any
cost incurred by the Master Servicer or the Special Servicer in maintaining any
such insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no other additional insurance other than flood
insurance or earthquake insurance subject to the conditions set forth below is
to be required of any Borrower or to be maintained by the Master Servicer other
than pursuant to the terms of the related Loan Documents and pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property (other than an REO
Property) is located in a federally designated special flood hazard area, the
Master Servicer will use its best efforts to cause the related Borrower to
maintain, to the extent required by each Mortgage Loan, and if the related
Borrower does not so maintain, shall itself obtain (subject to the provisions of
this Agreement concerning Nonrecoverable Advances) and maintain flood insurance
in respect thereof. Such flood insurance shall be in an amount equal to the
lesser of (i) the unpaid principal balance of the related Mortgage Loan and (ii)
the maximum amount of such insurance required by the terms of the related
Mortgage Loan and as is available for the related property under the national
flood insurance program (assuming that the area in which such property is
located is participating in such program). If a Mortgaged Property is related to
a Mortgage Loan pursuant to which earthquake insurance was in place at the time
of origination, is required to be maintained pursuant to the terms of the
Mortgage Loan, the Master Servicer shall use its reasonable best efforts to
cause the related Borrower to maintain, and if the related Borrower does not so
maintain will itself obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances and for so long as such insurance continues
to be available at commercially reasonable rates) and maintain earthquake
insurance in respect thereof, in the amount required by the Mortgage Loan or, if
not specified, in-place at origination. If an REO Property (i) is located in a
federally designated special flood hazard area or (ii) is related to a Mortgage
Loan pursuant to which earthquake insurance was in place at the time of
origination and continues to be available at commercially reasonable rates, the
Special Servicer will obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) and maintain flood insurance and/or
earthquake insurance in respect thereof providing the same coverage as described
in the preceding sentences or, with respect to earthquake insurance, in the
amount required by the Mortgage Loan or, if not specified, in-place at
origination. If at any time during the term of this Agreement a recovery under a
flood or fire and hazard insurance policy in respect of an REO Property is not
available but would have been available if such insurance were maintained
thereon in accordance with the standards applied to Mortgaged Properties
described herein, the Special Servicer shall (subject to the provisions hereof
relating to Nonrecoverable Advances) either (i) immediately deposit into the
Collection Account from its own funds the amount that would have been recovered
or (ii) apply to the restoration and repair of the property from its own funds
the amount that would have been recovered, if such application would be
consistent with the Servicing Standard; provided,
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however, that the Special Servicer shall not be responsible for any shortfall in
insurance proceeds resulting from an insurer's refusal or inability to pay a
claim. In the case of any insurance otherwise required to be maintained pursuant
to this Section that is not being so maintained because the Master Servicer or
the Special Servicer, as applicable, has determined that it is not available at
commercially reasonable rates, the Master Servicer or the Special Servicer, as
applicable, shall deliver an Officers' Certificate to the Trustee, the Depositor
and each Rating Agency which details the steps that were taken in seeking such
insurance and the factors which led to the determination that such insurance was
not so available. Out-of-pocket expenses incurred by the Master Servicer or
Special Servicer in maintaining insurance policies pursuant to this Section 3.08
shall be paid by the Master Servicer or Special Servicer as a Property Advance
and shall be reimbursable to the Master Servicer or Special Servicer with
interest at the Advance Rate. The Master Servicer (or the Special Servicer, with
respect to the Specially Serviced Mortgage Loans) agrees to prepare and present,
on behalf of itself, the Trustee and the Certificateholders, claims under each
related insurance policy maintained pursuant to this Section 3.08(a) in a timely
fashion in accordance with the terms of such policy and to take such reasonable
steps as are necessary to receive payment or to permit recovery thereunder.
All insurance policies required hereunder shall name the Trustee or
the Master Servicer or the Special Servicer, on behalf of the Trustee as the
mortgagee, as loss payee, and, unless otherwise required under the related Loan
Documents, shall be issued by Qualified Insurers.
(b) (I) If the Master Servicer or the Special Servicer, as
applicable, obtains and maintains a blanket insurance policy insuring against
fire and hazard losses on all of the Mortgaged Properties (other than REO
Properties) as to which the related Borrower has not maintained insurance
required by the related Mortgage Loan or on all of the REO Properties, as the
case may be, it shall conclusively be deemed to have satisfied its respective
obligations concerning the maintenance of insurance coverage set forth in
Section 3.08(a). Any such blanket insurance policy shall be maintained with a
Qualified Insurer. A blanket insurance policy may contain a deductible clause,
in which case the Master Servicer or the Special Servicer, as applicable, shall,
in the event that (i) there shall not have been maintained on the related
Mortgaged Property a policy otherwise complying with the provisions of Section
3.08(a), and (ii) there shall have been one or more losses which would have been
covered by such a policy had it been maintained, immediately deposit into the
Collection Account from its own funds the amount not otherwise payable under the
blanket policy because of such deductible clause to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard. In
connection with its activities as Master Servicer or the Special Servicer
hereunder, as applicable, the Master Servicer and the Special Servicer,
respectively, agree to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy which it maintains in a
timely fashion in accordance with the terms of such policy and to take such
reasonable steps as are necessary to receive payment or permit recovery
thereunder.
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(II) If the Master Servicer or the Special Servicer, as applicable,
causes any Mortgaged Property or REO Property to be covered by a master force
placed insurance policy and such policy shall be issued by a Qualified Insurer
and provide no less coverage in scope and amount for such Mortgaged Property or
REO Property than the insurance required to be maintained pursuant to Section
3.08(a), then the Master Servicer or Special Servicer shall conclusively be
deemed to have satisfied its respective obligations to maintain insurance
pursuant to Section 3.08(a). Such policy may contain a deductible clause, in
which case the Master Servicer or the Special Servicer, as applicable, shall, in
the event that (i) there shall not have been maintained on the related Mortgaged
Property or REO Property a policy otherwise complying with the provisions of
Section 3.08(a), and (ii) there shall have been one or more losses which would
have been covered by such a policy had it been maintained, immediately deposit
into the Collection Account from its own funds the amount not otherwise payable
under such policy because of such deductible to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard.
(c) The Master Servicer and the Special Servicer shall each maintain
a fidelity bond in the form and amount that would meet the servicing
requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as
certificateholder or loss payee, as applicable thereunder. The Master Servicer
and the Special Servicer each shall be deemed to have complied with this
provision if one of its respective Affiliates 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 applicable. In
addition, the Master Servicer and the Special Servicer shall each keep in force
during the term of this Agreement a policy or policies of insurance covering
loss occasioned by the errors and omissions of its officers and employees in
connection with its obligations to service the Mortgage Loans hereunder in the
form and amount that would meet the servicing requirements of FNMA or FHLMC,
whichever is greater, with the Trustee named as certificateholder or loss payee,
as applicable thereunder. The Master Servicer and the Special Servicer shall
cause each and every sub-servicer for it to maintain, or cause to be maintained
by any agent or contractor servicing any Mortgage Loan on behalf of such
sub-servicer, a fidelity bond and an errors and omissions insurance policy which
satisfy the requirements for the fidelity bond and the errors and omissions
policy to be maintained by the Master Servicer pursuant to this Section 3.08(c).
All fidelity bonds and policies of errors and omissions insurance obtained under
this Section 3.08(c) shall be issued by a Qualified Insurer.
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions.
(a) If any Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
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(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property or related Borrower, or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the related mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Master Servicer or Special Servicer, as applicable, on behalf of the Trust Fund
shall not be required to enforce such due-on-sale clause and in connection
therewith shall not be required to (x) accelerate payments thereon or (y)
withhold its consent to such an assumption to the extent permitted under the
terms of the related Mortgage Loan if (x) such provision is not exercisable
under applicable law or such exercise is reasonably likely to result in
meritorious legal action by the related Borrower or (y) the Master Servicer or
Special Servicer, as applicable, determines, in accordance with the Servicing
Standard, that granting such consent would be likely to result in a greater
recovery, on a present value basis (discounting at the related Mortgage Rate),
than would enforcement of such clause. If the Master Servicer or Special
Servicer, as applicable, determines that granting of such consent would likely
result in a greater recovery, the Master Servicer or Special Servicer, as
applicable, is authorized to take or enter into an assumption agreement from or
with the Person to whom the related Mortgaged Property has been or is about to
be conveyed, and to release the original Borrower from liability upon the
Mortgage Loan and substitute the new Borrower as obligor thereon, provided, that
(a) the credit status of the prospective new Borrower is in compliance with the
Master Servicer's or Special Servicer's, as applicable, regular commercial
mortgage origination or servicing standards and criteria (as evidenced in
writing by the Master Servicer or Special Servicer) and the terms of the related
Mortgage and (b) the Master Servicer or Special Servicer has received written
confirmation from each Rating Agency that such assumption or substitution would
not, in and of itself, cause a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates. In connection with each such
assumption or substitution entered into by the Special Servicer, the Special
Servicer shall give prior notice thereof to the Master Servicer. The Master
Servicer or Special Servicer, as applicable, shall notify the Trustee that any
such assumption or substitution agreement has been completed by forwarding to
the Trustee (with a copy to the Master Servicer, if applicable,) the original
copy of such agreement, which copies shall be added to the related Mortgage File
and shall, for all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a part thereof.
(b) Subject to Section 3.26(b), if any Mortgage Loan contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation
of any lien or other encumbrance on the related Mortgaged
Property, or
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(ii) requires the consent of the related mortgagee to the creation
of any such lien or other encumbrance on the related Mortgaged
Property,
then the Master Servicer or Special Servicer, as applicable,
on behalf of the Trust Fund, shall not be required to enforce such
due-on-encumbrance clause and in connection therewith will not be required to
(i) accelerate the payments on the related Mortgage Loan or (ii) withhold its
consent to such lien or encumbrance if in either case the Master Servicer or
Special Servicer, as applicable, (x) determines, in accordance with the
Servicing Standard, that such enforcement would not be in the best interests of
the Trust Fund and (y) receives prior written confirmation from each Rating
Agency that granting such consent would not, in and of itself, cause a
downgrade, qualification or withdrawal of any of the then current ratings
assigned to the Certificates.
(c) Nothing in this Section 3.09 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(d) In connection with the taking of, or the failure to take, any
action pursuant to this Section 3.09, neither the Master Servicer nor the
Special Servicer shall agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.09(a) shall contain
any terms that are different from, any term of any Mortgage Loan or the related
Note, other than pursuant to Section 3.27.
(e) With respect to any Mortgage Loan which permits release of
Mortgaged Properties through defeasance:
(i) In the event such Mortgage Loan requires that the Master
Servicer on behalf of the Trustee purchase the required U.S.
government obligations, the Master Servicer shall, at the
Borrower's expense, purchase such obligations in accordance
with the terms of such Mortgage Loan and hold the same on
behalf of the Trust Fund; provided, that the Master Servicer
shall not accept the amounts paid by the related Borrower to
effect defeasance until acceptable U.S. government obligations
have been identified.
(ii) The Master Servicer shall obtain an Opinion of Counsel (which
shall be an expense of the related Borrower) to the effect
that the Trustee has a first priority security interest in the
defeasance deposit and the U.S. government obligations and the
assignment thereof is valid and enforceable; such opinion,
together with any other certificates or documents to be
required in connection with such defeasance shall be in form
and substance acceptable to the Master Servicer.
(iii) The Master Servicer shall obtain a certificate at the related
Borrower's expense from an Independent certified public
accountant certifying that
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the U.S. government obligations comply with the requirements
of the related Loan Agreement or Mortgage.
(iv) To the extent required by the related Loan Documents, prior to
permitting release of any Mortgaged Properties through
defeasance, the Master Servicer shall (at the Borrower's
expense) obtain written confirmation from each Rating Agency
that such defeasance would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates.
(v) If the Mortgage Loan permits the related Borrower or the
lender or its designee to cause an accommodation borrower to
assume such defeased obligations, the Master Servicer shall
establish at the Borrower's cost and expense (and shall use
its reasonable best efforts to cause the related Borrower to
consent to such assumption) a special purpose entity to assume
such obligations, the establishment of which will not, as
evidenced in a writing of the Rating Agencies delivered to the
Trustee, in and of itself, result in the downgrade,
qualification or withdrawals of the ratings then assigned to
the Certificates.
SECTION 3.10. Realization Upon Defaulted Mortgage Loans.
(a) Within 30 days after the occurrence of an Appraisal Reduction
Event, the Master Servicer shall obtain an Updated Appraisal of the related
Mortgaged Property or REO Property, as the case may be, the costs of which shall
be a Property Advance to be advanced by the Master Servicer; provided, however,
that with respect to the Appraisal Reduction Event enumerated in clause (v) in
the definition of Appraisal Reduction Event, in the event that the Master
Servicer is diligently proceeding to obtain an independent MAI appraisal but
cannot do so within such 30-day period, the Master Servicer will have an
additional 30 days to obtain an independent MAI appraisal; provided further,
that the Master Servicer shall not be required to obtain an Updated Appraisal of
any Mortgaged Property with respect to which there exists an appraisal which is
less than twelve months old. The Master Servicer shall obtain annual letter
updates to the Updated Appraisal or new Updated Appraisals, provided, that in
the event that the Master Servicer receives notice or otherwise becomes aware
pursuant to the financial and property reports, if any, collected from the
related Borrower that net operating income with respect to any Mortgaged
Property (calculated as provided in the related Loan Documents) has dropped by
more than 10% for any fiscal year as compared to the previous fiscal year or the
debt service coverage ratio of any Mortgaged Property (calculated as provided in
the related Loan Documents) has fallen below 1.2 (based on such fiscal year's
financial statements), the Master Servicer shall obtain a new Updated Appraisal.
Following a default in the payment of any principal balance and
accrued interest remaining unpaid on the maturity date of a Mortgage Loan,
either (x) the Master Servicer shall continue to make P&I Advances in accordance
with Section 3.10(j), or (y) the Special Servicer
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shall foreclose or elect to grant up to two consecutive one-year extensions of
the Specially Serviced Mortgage Loan; provided that the Special Servicer may
only extend such Mortgage Loan if (i) immediately prior to the default on the
maturity date (or the first anniversary thereof in the case of the second
extension), the related Borrower had made twelve consecutive Scheduled Payments
(or Extended Scheduled Payments (as defined herein) in the case of the second
extension) on or prior to their Due Dates, (ii) the Special Servicer determines
that (A) extension of such Mortgage Loan is consistent with the Servicing
Standard and (B) extension of such Mortgage Loan is likely to result in a
recovery which on a net present value basis would be greater than the recovery
that would result from a foreclosure, such determination to be evidenced by an
Officer's Certificate delivered to the Rating Agencies and accompanied by all
supporting documentation, (iii) such extension requires that all cash flow on
all related Mortgage Properties in excess of amounts required to operate and
maintain such Mortgaged Properties be applied to payments of principal and
interest on such Mortgage Loan, (iv) the Special Servicer terminates the related
Manager unless the Special Servicer determines that retaining such Manager is
conducive to maintaining the value of such Mortgaged Properties and (v) such
extension requires the related Borrower to make Extended Scheduled Payments. The
Special Servicer's determination to extend shall be made in the Special
Servicer's good faith judgment, and may, but is not required to be, based on an
Updated Appraisal or a letter update thereof.
The Special Servicer will not agree to any extension of a Mortgage
Loan beyond the date which is two years prior to the Rated Final Distribution
Date or, in the case of a Mortgage Loan secured by a leasehold interest (other
than those Mortgage Loans secured by Mortgaged Properties with respect to which
the related fee interest is also subject to the lien of the related Mortgage),
the date that is ten years prior to the expiration of the leasehold interest
securing such Mortgage Loan. If the related Borrower fails to make an Extended
Scheduled Payment during the initial extension period, no further extensions
will be granted. In no event will the Special Servicer be permitted to extend
any Mortgage Loan at a rate lower than the Mortgage Rate.
(b) In connection with any foreclosure, enforcement of the Loan
Documents or other acquisition, the Special Servicer shall pay the out-of-pocket
costs and expenses in any such proceedings as a Property Advance unless the
Special Servicer determines, in its good faith judgment, that such Advance would
constitute a Nonrecoverable Advance. The Special Servicer shall be entitled to
reimbursement of Advances (with interest at the Advance Rate) made pursuant to
the preceding sentence to the extent permitted by Section 3.06(ii).
If the Special Servicer elects to proceed with a non-judicial
foreclosure in accordance with the laws of the state where the Mortgaged
Property is located, the Special Servicer shall not be required to pursue a
deficiency judgment against the related Borrower or any other liable party if
the laws of the state do not permit such a deficiency judgment after a
non-judicial foreclosure or if the Special Servicer determines, in its best
judgment, that the likely recovery if a deficiency judgment is obtained will not
be sufficient to warrant the cost, time, expense and/or exposure of pursuing the
deficiency judgment and such determination is evidenced by an Officers'
Certificate delivered to the Trustee.
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In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, to a co-trustee or to its nominee (which shall
not include the Master Servicer) or a separate trustee or co-trustee on behalf
of the Trustee as holder of the Lower-Tier Regular Interests and on behalf of
the holders of the Certificates. Notwithstanding any such acquisition of title
and cancellation of the related Mortgage Loan, such Mortgage Loan shall (except
for purposes of Section 9.01) be considered to be a REO Mortgage Loan held in
the Trust Fund until such time as the related REO Property shall be sold by the
Trust Fund and shall be reduced only by collections net of expenses. Consistent
with the foregoing, for purposes of all calculations hereunder, so long as such
Mortgage Loan shall be considered to be an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the
indebtedness evidenced by the related Note shall have been
discharged, such Note and, for purposes of determining the
Stated Principal Balance thereof, the related amortization
schedule in effect at the time of any such acquisition of
title remain in effect; and
(ii) Net REO Proceeds received in any month shall be applied to
amounts that would have been payable under the related Note in
accordance with the terms of such Note. In the absence of such
terms, Net REO Proceeds shall be deemed to have been received
first in payment of the accrued interest (not including
Default Interest or Excess Interest) that remained unpaid on
the date that the related REO Property was acquired by the
Trust Fund; second in respect of the delinquent principal
installments that remained unpaid on such date; and
thereafter, Net REO Proceeds received in any month shall be
applied to the payment of installments of principal and
accrued interest on such Mortgage Loan deemed to be due and
payable in accordance with the terms of such Note and such
amortization schedule. If such Net REO Proceeds exceed the
Scheduled Payment then payable, the excess shall be treated as
a Principal Prepayment received in respect of such Mortgage
Loan.
(c) Notwithstanding any provision to the contrary, the Special
Servicer shall not acquire for the benefit of the Trust Fund any personal
property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an
Opinion of Counsel (which opinion shall be an expense of the
Trust Fund) to the effect that the holding of such personal
property by the Trust Fund will not cause the imposition of a
tax on the Lower-Tier REMIC or
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the Upper-Tier REMIC under the REMIC Provisions or cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as
a REMIC at any time that any Certificate is outstanding.
(d) Notwithstanding any provision to the contrary in this Agreement,
neither the Special Servicer nor the Master Servicer shall, on behalf of the
Trust Fund, obtain title to any direct or indirect partnership interest or other
equity interest in any Borrower pledged pursuant to any pledge agreement or to
the Interest Rate Cap Agreement unless the Special Servicer or the Master
Servicer, as the case may be, shall have obtained an Opinion of Counsel, at the
expense of the Trust Fund, that obtaining such title will not cause either the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or result
in the imposition of tax on either the Lower-Tier REMIC or the Upper-Tier REMIC.
(e) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, and shall not otherwise acquire possession of, or
take any other action with respect to, any Mortgaged Property if, as a result of
any such action, the Trustee, for the Trust Fund or the Certificateholders,
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Special
Servicer has previously determined in accordance with the Servicing Standard,
based on an updated environmental assessment report prepared by an Independent
Person who regularly conducts environmental audits, that:
(A) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an
environmental consultant, that it would be in the best
economic interest of the Trust Fund to take such actions as
are necessary to bring such Mortgaged Property in compliance
therewith; and
(B) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under
any currently effective federal, state or local law or
regulation, or that, if any such Hazardous Materials are
present for which such action could be required, after
consultation with an environmental consultant, it would be in
the best economic interest of the Trust Fund to take such
actions with respect to the affected Mortgaged Property. In
the event that the environmental assessment first obtained by
the Special Servicer with respect to a Mortgaged Property
indicates that such Mortgaged Property may not be in
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compliance with applicable environmental laws or that
Hazardous Materials may be present but does not definitively
establish such fact, the Special Servicer shall cause such
further environmental tests to be conducted by an Independent
Person who regularly conducts such tests as the Special
Servicer shall deem prudent to protect the interests of
Certificateholders. Any such tests shall be deemed part of the
environmental assessment obtained by the Special Servicer for
purposes of this Section 3.10.
(f) The environmental assessment contemplated by Section 3.10(e)
shall be prepared within three months of the determination that such assessment
is required by any Independent Person who regularly conducts environmental
audits for purchasers of commercial property where the Mortgaged Property is
located, as determined by the Special Servicer in a manner consistent with the
Servicing Standard. The Master Servicer shall advance the cost of preparation of
such environmental assessments unless the Master Servicer determines, in its
good faith judgment, that such Advance would be a Nonrecoverable Advance. The
Master Servicer shall be entitled to reimbursement of Advances (with interest at
the Advance Rate) made pursuant to the preceding sentence in the manner set
forth in Section 3.06.
(g) If the Special Servicer determines pursuant to Section
3.10(e)(A) that a Mortgaged Property is not in compliance with applicable
environmental laws but that it is in the best economic interest of the Trust
Fund to take such actions as are necessary to bring such Mortgaged Property in
compliance therewith, or if the Special Servicer determines pursuant to Section
3.10(e)(B) that the circumstances referred to therein relating to Hazardous
Materials are present but that it is in the best economic interest of the Trust
Fund to take such action with respect to the containment, clean-up or
remediation of Hazardous Materials affecting such Mortgaged Property as is
required by law or regulation, the Special Servicer shall take such action as it
deems to be in the best economic interest of the Trust Fund, but only if the
Trustee has mailed notice to the Holders of the Regular Certificates of such
proposed action, which notice shall be prepared by the Special Servicer and
delivered to the Trustee, and only if the Trustee does not receive, within 30
days of such notification, instructions from the Holders of greater than 50% of
the aggregate Voting Rights of such Classes directing the Special Servicer not
to take such action. None of the Trustee, the Master Servicer or the Special
Servicer shall be obligated to take any action or not take any action pursuant
to this Section 3.10(g) at the direction of the Certificateholders unless the
Certificateholders agree to indemnify the Trustee, the Master Servicer and the
Special Servicer with respect to such action or inaction. The Special Servicer
shall advance the cost of any such compliance, containment, clean-up or
remediation unless the Special Servicer determines, in its good faith judgment,
that such Advance would constitute a Nonrecoverable Advance.
(h) The Special Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed.
The Special Servicer shall deliver a copy of any such report to the Trustee.
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(i) The costs of any appraisal or annual letter update obtained
pursuant to this Section 3.10 shall be paid by the Master Servicer as an Advance
and shall be reimbursable from the Collection Account pursuant to Section 3.06.
(j) Following a default in the payment of principal or interest on a
Mortgage Loan, the Special Servicer, after consultation and agreement by the
Master Servicer, may elect not to foreclose or institute similar proceedings or
to modify the loan pursuant to Section 3.27 and instead the Master Servicer
shall continue to make P&I Advances with respect to such delinquencies so long
as the Special Servicer, in its reasonable judgment in accordance with the
Servicing Standard, after consultation and agreement by the Master Servicer,
concludes (a) that the election not to foreclose or to modify would likely
result in a greater recovery, on a present value basis, than would foreclosure
or modification and (b) such P&I Advances will not be Nonrecoverable Advances.
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes, the Master Servicer shall immediately notify
the Trustee or the Custodian by a certification (which certification 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
Collection Account pursuant to Section 3.05 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Trust Fund.
From time to time upon request of the Master Servicer or Special
Servicer and delivery to the Trustee and the Custodian of a Request for Release,
the Trustee shall promptly cause the Custodian to release the Mortgage File (or
any portion thereof) designated in such Request for Release to the Master
Servicer or Special Servicer, as applicable. Upon return of the foregoing to the
Custodian, or in the event of a liquidation or conversion of the Mortgage Loan
into an REO Property, receipt by the Trustee of a certificate of a Servicing
Officer stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation which are
required to be deposited into the Collection Account or the Lower-Tier
Distribution Account have been so deposited, or that such Mortgage Loan has
become an REO Property, the Custodian shall deliver a copy of the Request for
Release to the Master Servicer or Special Servicer, as applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower on the Mortgage Loan or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Loan Documents or otherwise
available at law or in equity. Each such certification shall include a request
that such
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pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required, and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage or other security agreement, except for the termination of such
a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing
Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled, with respect to each Mortgage Loan and each Interest
Accrual Period, to the Servicing Fee, which shall be payable from amounts on
deposit in the Collection Account as set forth in Section 3.06(iii). The Master
Servicer's rights to the 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. In addition, the Master
Servicer shall be entitled to receive, as additional servicing compensation, to
the extent permitted by applicable law and the related Mortgage Loans any late
payment charges, Assumption Fees, loan modification fees, extension fees, loan
service transaction fees, demand fees, beneficiary statement charges, or similar
items (but not including any Net Default Interest or Prepayment Premiums), in
each case to the extent received and not required to be deposited or retained in
the Collection Account pursuant to Section 3.05; provided, however, that the
Master Servicer shall not be entitled to apply or retain any amounts as
additional compensation, including any late payment charges, with respect to a
specific Mortgage Loan with respect to which a default or event of default
thereunder has occurred and is continuing unless and until such default or event
of default has been cured and all delinquent amounts (including any Default
Interest) due with respect to such Mortgage Loan have been paid. The Master
Servicer shall also be entitled pursuant to, and to the extent provided in,
Sections 3.06(iii) and 3.07(b) to withdraw from the Collection Account and to
receive from any Borrower Accounts (to the extent not payable to the related
Borrower under the Mortgage Loan or applicable law) any interest or other income
earned on deposits therein.
Notwithstanding the foregoing, the aggregate Servicing Fee (minus
the Trustee Fee) due to the Master Servicer with respect to any Distribution
Date shall be reduced by the aggregate amount of any Prepayment Interest
Shortfalls for the related Collection Period.
As compensation for its activities hereunder, on each Distribution
Date the Trustee shall be entitled with respect to each Mortgage Loan to the
Trustee Fee, which shall be payable by the Master Servicer out of the aggregate
Servicing Fee. The Trustee's rights to the Trustee Fee may not be transferred in
whole or in part except in connection with the transfer of all of the Trustee's
responsibilities and obligations under this Agreement.
Except as otherwise provided herein, the Master Servicer shall pay
all expenses incurred by it in connection with its servicing activities
hereunder, including all fees of any sub-servicers retained by it. Except as
otherwise provided herein, the Trustee shall pay all expenses incurred by it,
the Fiscal Agent, the Certificate Registrar, the Paying Agent, the Custodian and
the Authenticating Agent in connection with their activities hereunder.
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(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled with respect to each Specially Serviced Mortgage Loan
to the Special Servicing Fee, which shall be payable from amounts on deposit in
the Collection Account as set forth in Section 3.06(iii). The Special Servicer's
rights to the Special Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement. In addition, the Special
Servicer shall be entitled to receive, as additional servicing compensation, (i)
to the extent permitted by applicable law and the related Specially Serviced
Mortgaged Loans, any Assumption Fees and loan modification or forbearance fees
and (ii) any interest or other income earned on deposits in the REO Accounts.
Except as otherwise provided herein, the Special Servicer shall pay
all expenses incurred by it in connection with its servicing activities
hereunder.
(c) In addition to the Special Servicing Fees provided for in this
Agreement, and not in lieu thereof, the Special Servicer shall be entitled to
the following fees and compensation:
(i) the Special Servicing Rehabilitation Fee; and
(ii) the Liquidation Fee payable out of the Liquidation Proceeds
prior to the deposit of the Net Liquidation Proceeds in the
Collection Account. However, no Liquidation Fee will be
payable in connection with, or out of, Liquidation Proceeds
resulting from the purchase of any Specially Serviced Mortgage
Loan or REO Property (i) by the Mortgage Loan Seller or (ii)
by the Master Servicer, the Depositor or the
Certificateholders pursuant to Section 2.03 or Section 9.01.
(d) The Master Servicer, Special Servicer, the Trustee , the Fiscal
Agent, the Certificate Registrar, the Custodian, the Authenticating Agent and
the Paying Agent shall be entitled to reimbursement from the Trust Fund for the
costs and expenses incurred by them in the performance of their duties under
this Agreement which are "unanticipated expenses incurred by the REMIC" within
the meaning of Treasury Regulations Section 1.860G-1(b)(3)(iii). Such expenses
shall include, by way of example and not by way of limitation, environmental
assessments, Updated Appraisals and appraisals in connection with foreclosure,
the fees and expenses of any administrative or judicial proceeding and expenses
expressly identified as reimbursable in Section 3.06(v).
(e) No provision of this Agreement or of the Certificates shall
require the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to expend or risk their own funds or otherwise incur any financial
liability in the performance of any of their duties hereunder or thereunder, or
in the exercise of any of their rights or powers, if, in the good faith business
judgment of the Master Servicer, Special Servicer, Trustee or Fiscal Agent, as
the case may be, repayment of such funds would not be ultimately recoverable
from late payments, Net Insurance Proceeds, Net Liquidation Proceeds and other
collections on or in
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respect of the Mortgage Loans, or from adequate indemnity from other assets
comprising the Trust Fund against such risk or liability.
If the Master Servicer, the Special Servicer or the Trustee receives
a request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Master Servicer's, the Special Servicer's or
the Trustee's good faith business judgment require the assistance of Independent
legal counsel or other consultant to the Master Servicer, the Special Servicer
or the Trustee, the cost of which would not be an expense of the Trust Fund
hereunder, then the Master Servicer, the Special Servicer or the Trustee, as the
case may be, shall not be required to take any action in response to such
request or inquiry unless the Borrower or such Certificateholder or such other
Person, as applicable, makes arrangements for the payment of the Master
Servicer's, the Special Servicer's or Trustee's expenses associated with such
counsel (including, without limitation, posting an advance payment for such
expenses) satisfactory to the Master Servicer, the Special Servicer or the
Trustee, as the case may be, in its sole discretion. Unless such arrangements
have been made, the Master Servicer, the Special Servicer or the Trustee, as the
case may be, shall have no liability to any Person for the failure to respond to
such request or inquiry.
SECTION 3.13. Reports to the Trustee; Collection Account Statements.
(a) The Master Servicer shall deliver to the Trustee no later than
the fifth Business Day prior to each Distribution Date a preliminary report
containing the information provided on the Master Servicer Remittance Report and
by no later than 1:00 p.m. Central time on the second Business Day prior to each
Distribution Date, the Master Servicer Remittance Report with respect to the
related Distribution Date (which shall include, without limitation, the amount
of Available Funds for such related Collection Period) including a written
statement of anticipated P&I Advances for the related Distribution Date. The
Master Servicer's responsibilities under this Section 3.13(a) with respect to
REO Mortgage Loans shall be subject to the satisfaction of the Special
Servicer's obligations under Section 3.24.
(b) Not later than fifteen days after each Distribution Date, the
Master Servicer shall forward to the Trustee a statement prepared by the Master
Servicer setting forth the status of the Collection Account as of the close of
business on the related Distribution Date and showing the aggregate amount of
deposits into and withdrawals from the Collection Account since the previous
Distribution Date for each category of deposit specified in Section 3.05 and
each category of withdrawal specified in Section 3.06 for the related Collection
Period. The Trustee and its agents and attorneys may at any time during normal
business hours, upon reasonable notice, inspect and copy the books, records and
accounts of the Master Servicer solely relating to the Mortgage Loans and the
performance of its duties hereunder.
(c) No later than 3:00 p.m. Central time on the Business Day
preceding each Master Servicer Remittance Date, the Master Servicer shall
deliver or cause to be delivered to the Trustee the following reports with
respect to the Mortgage Loans (and, if applicable, the related REO Properties),
providing the required information as of the Due Date: (i) a Comparative
Financial Status Report, (ii) a Delinquent Loan Status Report; (iii) an
Historical
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Loss Estimate Report; (iv) an Historical Loan Modification Report; and (v) an
REO Status Report. Such reports shall be presented in writing and on a computer
readable medium reasonably acceptable to the Trustee. The information that
pertains to Specially Serviced Mortgage Loans and REO Properties reflected in
such reports shall be based solely upon the reports delivered by the Special
Servicer to the Master Servicer at least one Business Day prior to the related
Master Servicer Remittance Date in the form required by Section 3.13(f) or shall
be provided by means of such reports so delivered by the Special Servicer to the
Master Servicer in the form so required. In the absence of manifest error, the
Master Servicer shall be entitled to conclusively rely upon, without
investigation or inquiry, the information and reports delivered to it by the
Special Servicer.
(d) The Master Servicer shall deliver or cause to be delivered to
the Trustee the following materials, in each case to the extent that such
materials or the information on which they are based have been received by the
Master Servicer:
(i) Quarterly, within thirty days of the Master Servicer's
receipt of the related Borrower's operating statements and rent
rolls, commencing with the first fiscal quarter ending after March
1, 1998, with respect to each Mortgage Loan and REO Mortgage Loan
(to the extent prepared by and received from the Special Servicer in
the case of any Specially Serviced Mortgage Loan or REO Mortgage
Loan), an Operating Statement Analysis for the related Mortgaged
Property or REO Property as of the end of the preceding fiscal year,
together with, if requested by the Trustee in response to any
Certificateholder request, copies of the operating statements and
rent rolls (but only to the extent the related Borrower is required
by the Mortgage to deliver, or otherwise agrees to provide such
information and, with respect to operating statements and rent rolls
for Specially Serviced Mortgage Loans and REO Properties, only to
the extent requested by the Special Servicer) for the related
Mortgaged Property or REO Property as of the end of the preceding
quarter year. The Master Servicer shall use its best reasonable
efforts to obtain said annual operating statements and rent rolls
with respect to each of the Mortgage Loans other than Specially
Serviced Mortgage Loans or REO Mortgage Loans, which efforts shall
include a letter sent to the related Borrower each quarter (followed
up with telephone calls) requesting such annual operating statements
and rent rolls until they are received to the extent such action is
consistent with applicable law and the terms of the Mortgage Loans.
(ii) Within thirty days after receipt by the Master Servicer
(or within ten days of receipt by the Special Servicer in the case
of a Specially Serviced Mortgage Loan or REO Property) of any annual
operating statements with respect to any Mortgaged Property or REO
Property (to the extent prepared by and received from the Special
Servicer in the case of any Specially Serviced Mortgage Loan or REO
Property), an NOI Adjustment Worksheet for such Mortgaged Property
(with the annual operating statements attached thereto as an
exhibit).
The Master Servicer shall maintain one Operating Statement Analysis report for
each Mortgaged Property and REO Property (to the extent prepared by and received
from the
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Special Servicer in the case of any REO Property or any Mortgaged Property
constituting security for a Specially Serviced Mortgage Loan). The Operating
Statement Analysis report for each Mortgaged Property (other than any such
Mortgaged Property which is REO Property or constitutes security for a Specially
Serviced Mortgage Loan) is to be updated by the Master Servicer and such updated
report delivered to the Trustee within thirty days after receipt by the Master
Servicer of updated operating statements for such Mortgaged Property. The Master
Servicer will use the "Normalized" column from the NOI Adjustment Worksheet to
update the Operating Statement Analysis report and will use any operating
statements received with respect to any Mortgaged Property (other than any such
Mortgaged Property which is REO Property or constitutes security for a Specially
Serviced Mortgage Loan) to update the Operating Statement Analysis report for
such Mortgaged Property, such updates to be completed and copies thereof sent to
the Trustee within thirty days after receipt of the necessary information.
The Special Servicer will be required pursuant to Section 3.13(g) to
deliver to the Master Servicer the information required pursuant to this Section
3.13(d) with respect to Specially Serviced Mortgage Loans and REO Mortgage
within ten days after its receipt of any operating statement for any related
Mortgaged Property or REO Property.
(e) No later than 12:00 noon Central time on the Master Servicer
Remittance Date, beginning in December 1997, the Master Servicer shall prepare
and deliver to the Trustee and the Special Servicer, a Watch List of all
Mortgage Loans that the Master Servicer has determined are in jeopardy of
becoming Specially Serviced Mortgage Loans. For this purpose, Mortgage Loans
that are in jeopardy of becoming Specially Serviced Mortgage Loans shall
include, without limitation: (i) Mortgage Loans having a current Debt Service
Coverage Ratio that is 80% or less of the Debt Service Coverage Ratio as of the
Cut-Off Date or having a Debt Service Coverage Ratio that is less than 1.00x,
(ii) Mortgage Loans with respect to which the net operating income of the
related Borrower has dropped by more than 10% for any fiscal year as compared to
the previous fiscal year, (iii) the results of any property inspection of which
the Master Servicer has knowledge and which has revealed any material damage or
deterioration or the presence of any environmental condition with respect to any
Mortgaged Property, which the Master Servicer determines can reasonably be
expected to materially adversely affect the cash flow generated by such
Mortgaged Property, (iv) any imminent or actual monetary default or other
default on a Mortgage Loan the results of which the Master Servicer, after
consultation with the Special Servicer, reasonably believes is likely to result
in the acceleration of the indebtedness due under such Mortgage Loan, (v)
Mortgage Loans which have come to the Master Servicer's attention in the
performance of its duties under this Agreement that (A) any tenant occupying 25%
or more of the space in the related Mortgaged Property has vacated (without
being replaced by a comparable tenant and lease) or been the subject of
bankruptcy or similar proceedings or (B) relate to a borrower or an affiliate
that is the subject of a bankruptcy or similar proceeding, (vi) Mortgage Loans
that are at least one Collection Period delinquent in payment, (vii) Mortgage
Loans that are within 60 days of maturity, (viii) any notice from a Borrower, or
any knowledge otherwise obtained, regarding any litigation involving such
Borrower or any related Mortgaged Property which the Master Servicer reasonably
believes is likely to have an adverse effect on the Mortgaged Property or
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the ability of such Borrower to pay the amounts due under the related Mortgage
Loan and (ix) any notice received from a Borrower, Manager or tenant of a
Mortgaged Property, or any knowledge otherwise obtained, regarding the material
default of such tenant under the terms of its lease or early termination by
either the tenant or the Borrower of such lease, the bankruptcy of such tenant
or its direct or indirect parent, the loss of a license or permit relating to
the Mortgaged Property or other material adverse tenant activity.
The Special Servicer shall report to the Master Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Mortgage Loans,
the Master Servicer and the Special Servicer shall provide to each other and to
the Trustee written notice of any event that comes to their knowledge with
respect to a Mortgage Loan or REO Property that the Master Servicer or the
Special Servicer, respectively, determines, in accordance with Servicing
Standards, would have a material adverse effect on such Mortgage Loan or REO
Property, which notice shall include an explanation as to the reason for such
material adverse effect.
(f) At least six Business Days prior to each Master Servicer
Remittance Date, the Special Servicer shall deliver, or cause to be delivered, a
preliminary copy of the reports described below and at least one Business Day
prior to each Master Servicer Remittance Date, the Special Servicer shall
deliver, or cause to be delivered, to the Master Servicer and each Rating
Agency, and upon the request of any of the Trustee or the Depositor, to such
requesting party, a final copy of the following reports with respect to the
Specially Serviced Mortgage Loans (and, if applicable, the related REO
Properties), providing the required information as of the Due Date: (i) a
Delinquent Loan Status Report; (ii) an Historical Loss Estimate Report; (iii) an
Historical Loan Modification Report; (iv) an REO Status Report; and (v)
Comparative Financial Status Reports with respect to all Specially Serviced
Mortgage Loans. Such reports shall be presented in writing and on a computer
readable magnetic medium.
(g) The Special Servicer shall deliver or cause to be delivered to
the Master Servicer and, upon the request of any of the Trustee, the Depositor
or any other Rating Agency, to such requesting party, the following materials,
in each case to the extent that such materials or the information on which they
are based have been received by the Special Servicer:
(i) Quarterly, within twenty days of the Special Servicer's
receipt of the related Borrower's operating statements and rent
rolls, commencing with the first fiscal quarter ending after March
1, 1998, with respect to each Specially Serviced Mortgage Loan and
REO Mortgage Loan, an Operating Statement Analysis for the related
Mortgaged Property or REO Property as of the end of the preceding
calendar year, together with copies of the operating statements and
rent rolls for the related Mortgaged Property or REO Property as of
the end of the preceding calendar year. The Special Servicer shall
use its best reasonable efforts to obtain said annual operating
statements and rent rolls with respect to each Mortgaged Property
constituting security for a Specially Serviced Mortgage Loan and
each REO Property, which efforts shall
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include a letter sent to the related Borrower or other appropriate party
each quarter (followed up with telephone calls) requesting such annual
operating statements and rent rolls until they are received.
(ii) Within 10 days of receipt by the Special Servicer of any
annual operating statements with respect to any Mortgaged Property
relating to a Specially Serviced Mortgage Loan, or at least six months of
operating information with respect to any REO Property, an NOI Adjustment
Worksheet for such Mortgaged Property or REO Property (with the annual
operating statements attached thereto as an exhibit).
The Special Servicer shall maintain one Operating Statement Analysis report for
each Mortgaged Property securing a Specially Serviced Mortgage Loan and REO
Property. The Operating Statement Analysis report for each Mortgaged Property
which constitutes security for a Specially Serviced Mortgage Loan or is a REO
Property is to be updated by the Special Servicer and such updated report
delivered to the Master Servicer within ten days after receipt by the Special
Servicer of updated operating statements for each such Mortgaged Property. The
Special Servicer will use the "Normalized" column from the NOI Adjustment
Worksheet to update the Operating Statement Analysis report and will use any
operating statements received with respect to any Mortgaged Property which
constitutes security for a Specially Serviced Mortgage Loan or is a REO Property
to update the Operating Statement Analysis report for such Mortgaged Property,
such updates to be completed and copies thereof sent to the Master Servicer
within ten days after receipt of the necessary information.
(h) The Trustee shall be entitled to rely conclusively on and shall not be
responsible for the content or accuracy of any information provided to it by the
Master Servicer or the Special Servicer pursuant to this Agreement.
SECTION 3.14. Annual Statement as to Compliance.
The Master Servicer and the Special Servicer (the "reporting
person") each shall deliver to the Trustee, the Depositor and to the Rating
Agencies on or before April 15 of each year, beginning with April 15, 1998, an
Officers' Certificate stating, as to each signatory thereof, (i) that a review
of the activities of the reporting person during the preceding calendar year (or
such shorter period from the Closing Date to the end of the related calendar
year) and of its performance under this Agreement has been made under such
officer's supervision, (ii) that, to the best of such officer's knowledge, based
on such review, the reporting person has fulfilled all of its obligations under
this Agreement throughout such year (or such shorter period), or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer, the nature and status thereof and what action it
proposes to take with respect thereto, (iii) that, to the best of such officer's
knowledge, each sub-servicer has fulfilled its obligations under its
sub-servicing agreement in all material respects, or, if there has been a
material default in the fulfillment of such obligations, specifying each such
default known to such officer and the nature and status thereof, (iv) that it
has maintained an effective internal control system over the servicing of
mortgage loans including the Mortgage Loans and other loans and (v) whether it
has received any notice regarding qualification, or
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challenging the status, of the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC
from the IRS or any other governmental agency or body.
Copies of the annual officer's certificate may be obtained by any
Certificateholder without charge upon written request to the Trustee.
SECTION 3.15. Annual Independent Public Accountants' Servicing
Report.
On or before April 15 of each year, beginning April 15, 1998, 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 Special Servicer) that is a member of the American Institute
of Certified Public Accountants to furnish a statement (an "Accountants
Statement") to the Trustee, the Depositor and each Rating Agency stating that
(i) it has obtained a letter of representation regarding certain matters from
the management of the Master Servicer or the Special Servicer, as the case may
be, which includes an assertion that the Master Servicer or Special Servicer, as
the case may be, 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 standards (rendered within one year of such report) with
respect to those sub-servicers.
Copies of the annual accountants' statement may be obtained by any
Certificateholder without charge upon written request to the Trustee.
SECTION 3.16. Access to Certain Documentation.
The Master Servicer and Special Servicer shall provide to any
Certificateholders that are federally insured financial institutions, the
Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder is subject,
access to the documentation regarding the Mortgage Loans required by applicable
regulations of the Federal Reserve Board, FDIC, OTS or any such governmental or
regulatory body, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the Master
Servicer or Special Servicer. Nothing in this Section 3.16 shall detract from
the obligation of the Master Servicer and Special Servicer to observe any
applicable law prohibiting disclosure of information with respect to the
Borrowers, and the failure of the Master Servicer and Special Servicer to
provide access as
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provided in this Section 3.16 as a result of such obligation shall not
constitute a breach of this Section 3.16.
SECTION 3.17. Title and Management of REO Properties.
(a) In the event that title to any Mortgaged Property is acquired
for the benefit of Certificateholders in foreclosure, by deed in lieu of
foreclosure or upon abandonment or reclamation from bankruptcy, the deed or
certificate of sale shall be taken in the name of the Trustee, or its nominee
(which shall not include the Master Servicer), or a separate trustee or
co-trustee, on behalf of the Trust Fund. The Special Servicer, on behalf of the
Trust Fund, shall dispose of any REO Property prior to the close of the third
calendar year after the year in which the Trust Fund acquires ownership of such
REO Property for purposes of Section 860G(a)(8) of the Code, unless (i) the
Special Servicer on behalf of the Lower-Tier REMIC has applied for an extension
of such period pursuant to Sections 856(e)(3) and 860G(a)(8)(A) of the Code, in
which case the Special Servicer shall sell such REO Property within the
applicable extension period or (ii) the Special Servicer seeks and subsequently
receives an Opinion of Counsel (which opinion shall be an expense of the Trust
Fund), addressed to the Special Servicer and Trustee, to the effect that the
holding by the Trust Fund of such REO Property for an additional specified
period will not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a) of
the Code) at any time that any Certificate is outstanding, in which event such
period shall be extended by such additional specified period subject to any
conditions set forth in such Opinion of Counsel. The Special Servicer, on behalf
of the Trust Fund, shall dispose of any REO Property held by the Trust Fund
prior to the last day of such period (taking into account extensions) by which
such REO Property is required to be disposed of pursuant to the provisions of
the immediately preceding sentence in a manner provided under Section 3.18
hereof. The Special Servicer shall manage, conserve, protect and operate each
REO Property for the Certificateholders solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a)).
(b) The Special Servicer shall have full power and authority,
subject only to the specific requirements and prohibitions of this Agreement, to
do any and all things in connection with any REO Property as are consistent with
the Servicing Standard and the terms of this Agreement, all on such terms and
for such period as the Special Servicer deems to be in the best interests of
Certificateholders, and, in connection therewith, the Special Servicer shall
only agree to the payment of management fees that are consistent with general
market standards or to terms that are more favorable. Consistent with the
foregoing, the Special Servicer shall cause or permit to be earned with respect
to such REO Property any "net income from foreclosure property," within the
meaning of Section 860G(c) of the Code, which is subject to tax under the REMIC
Provisions only if it has determined, and has so advised the Trustee in writing,
that the earning of such income on a net after-tax basis could reasonably be
expected to result in a greater recovery on behalf of Certificateholders than an
alternative
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method of operation or rental of such REO Property that would not be subject to
such a tax. The Special Servicer shall segregate and hold all revenues received
by it with respect to any REO Property separate and apart from its own funds and
general assets and shall establish and maintain with respect to any REO Property
a segregated custodial account (each, an "REO Account"), each of which shall be
an Eligible Account and shall be entitled "Special Servicer, in trust for
LaSalle National Bank, as Trustee, in trust for Holders of Structured Asset
Securities Corporation, Commercial Mortgage Pass-Through Certificates, Series
1997-LL I, REO Account." The Special Servicer shall be entitled to withdraw for
its account any interest or investment income earned on funds deposited in an
REO Account to the extent provided in Section 3.07(b). The Special Servicer
shall deposit or cause to be deposited in the REO Account within one Business
Day after receipt all revenues received by it with respect to any REO Property
(other than Liquidation Proceeds, which shall be remitted pursuant to Section
3.18(e) to the Collection Account), and shall withdraw therefrom funds necessary
for the proper operation, management and maintenance of such REO Property and
for other Property Protection Expenses with respect to such REO Property,
including:
(i) all insurance premiums due and payable in respect of any REO
Property;
(ii) all real estate taxes and assessments in respect of any REO Property
that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect,
maintain, manage, operate, repair and restore any REO Property; and
(iv) any taxes imposed on the Upper Tier REMIC or Lower-Tier REMIC in
respect of net income from foreclosure property in accordance with
Section 4.05.
To the extent that such REO Proceeds are insufficient for the
purposes set forth in clauses (i) through (iii) above and the Special Servicer
has provided written notice of such shortfall to the Master Servicer at least
five Business Days prior to the date that such amounts are due, the Master
Servicer shall advance the amount of such shortfall unless the Master Servicer
determines, in its good faith judgment, that such Advance would be a
Nonrecoverable Advance. If the Master Servicer does not make any such Advance in
violation of the immediately preceding sentence, the Trustee shall make such
Advance; and if the Trustee fails to make any such Advance, the Fiscal Agent
shall make such Advance, unless in either case, the Trustee or the Fiscal Agent
determines that such Advance would be a Nonrecoverable Advance. The Trustee and
the Fiscal Agent shall be entitled to rely, conclusively, on any determination
by the Master Servicer that an Advance, if made, would be a Nonrecoverable
Advance. The Trustee and the Fiscal Agent, in determining whether or not a
proposed Advance would be a Nonrecoverable Advance, shall be subject to the
standards applicable to the Master Servicer hereunder. The Master Servicer, the
Trustee or the Fiscal Agent, as applicable, shall be entitled to reimbursement
of such Advances (with interest at the Advance Rate) made pursuant to the
preceding sentence, to the extent set forth in Section 3.06. The Special
Servicer shall withdraw from each REO Account and remit to the Master Servicer
for
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deposit into the Collection Account on a monthly basis prior to the related
Master Servicer Remittance Date the Net REO Proceeds received or collected from
each REO Property, except that in determining the amount of such Net REO
Proceeds, the Special Servicer may retain in each REO Account reasonable
reserves for repairs, replacements and necessary capital improvements and other
related expenses. Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New Lease,
if the New Lease by its terms will give rise to any income that does
not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease,
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property, other than
the repair or maintenance thereof or the completion of a building or
other improvement thereon, and then only if more than ten percent 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 Person to Directly Operate any REO
Property on any date more than 90 days after its date of acquisition
by the Trust Fund, unless such Person is an Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code) at any
time that it is held by the Trust Fund, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
The Special Servicer shall be required to contract with an
Independent Contractor, the fees and expenses of which shall be an expense of
the Trust Fund and payable out of REO Proceeds, for the operation and management
of any REO Property, within 90 days of the Trust Fund's acquisition thereof
(unless the Special Servicer shall have provided the Trustee with an Opinion of
Counsel that the operation and management of any REO Property other than through
an Independent Contractor shall not cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Code Section 860G(a)(8)) (which
opinion shall be an expense of the Trust Fund), provided that:
(i) the terms and conditions of any such contract shall be reasonable
and customary for the area and type of property and shall not be
inconsistent herewith;
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(ii) any such contract shall require, or shall be administered to
require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above, and remit all related
revenues (net of such costs and expenses) to the Special Servicer as
soon as practicable, but in no event later than thirty days
following the receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.17(b) 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 to the Trust Fund or the Trustee on behalf of the
Certificateholders with respect to the operation and management of
any such REO Property; and
(iv) 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 such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(c) With respect to each REO Property, when and as necessary, and no
later than thirty days following the end of each calendar quarter, the Special
Servicer shall deliver to the Trustee a statement prepared by the Special
Servicer setting forth the amount of net income or net loss, as determined for
federal income tax purposes, resulting from the operation and management of a
trade or business on, the furnishing or rendering of a non-customary service to
the tenants of, or the receipt of any other amount not constituting Rents from
Real Property in respect of, any REO Property in accordance with Sections
3.17(a) and 3.17(b).
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO
Properties.
(a) With respect to any Specially Serviced Mortgage Loan or REO
Property which the Special Servicer has determined to sell in accordance with
Section 3.10, the Special Servicer shall deliver to the Trustee an Officers'
Certificate to the effect that, pursuant to Section 3.10, the Special Servicer
has determined to sell such Specially Serviced Mortgage Loan or REO Property in
accordance with this Section 3.18. The Special Servicer may then offer to sell
to any Person any Specially Serviced Mortgage Loan which is in default or for
which default is reasonably foreseeable or any REO Property or, subject to the
following sentence, purchase any such Specially Serviced Mortgage Loan or REO
Property (in each case at the Repurchase Price therefor), but shall, in any
event, so offer to sell any REO Property no later than the time determined by
the Special Servicer to be sufficient to result in the sale of
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such REO Property within the period specified in Section 3.17(a). The Special
Servicer shall deliver such Officers' Certificate and give the Trustee not less
than five Business Days' prior written notice of its intention to sell any
Specially Serviced Mortgage Loan or REO Property, in which case the Special
Servicer shall accept the highest offer received from any Person for any
Specially Serviced Mortgage Loan or any REO Property in an amount at least equal
to the Repurchase Price therefor or, at its option, if it has received no offer
(of at least three offers) at least equal to the Repurchase Price therefor,
purchase the Specially Serviced Mortgage Loan or REO Property at the Repurchase
Price.
In the absence of any such offer or purchase by the Special
Servicer, the Special Servicer shall accept the highest offer received from any
Person that is determined by the Special Servicer to be a fair price, as
determined in accordance with Section 3.18(b), for such Specially Serviced
Mortgage Loan or REO Property, if the highest offeror is a Person other than an
Interested Person, or if such offer is determined to be a fair price by the
Trustee in accordance with Section 3.18(b), if the highest offeror is an
Interested Person; provided, that the Trustee shall be entitled to engage, at
the expense of the Trust Fund, an Independent appraiser to determine whether the
highest offer is a fair price and, further provided, that if the highest offeror
is an Interested Person such offer shall not be accepted if it is less than the
Repurchase Price, unless the Rating Agencies have confirmed, in writing, that
such acceptance will not, in itself, result in the qualification, downgrade or
withdrawal of the then current ratings assigned to the Certificates.
Notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may make an offer or purchase any
Specially Serviced Mortgage Loan or any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such offer would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower offer if it determines, in
accordance with the Servicing Standard, that acceptance of such offer would be
in the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer are more
favorable), provided that the offeror is not the Special Servicer or an
Affiliate of the Special Servicer.
In the event that the Special Servicer determines with respect to
any REO Property that the offers being made with respect thereto are not in the
best interests of the Certificateholders and that the end of the period referred
to in Section 3.17(a) with respect to such REO Property is approaching, the
Special Servicer shall seek an extension of such period in the manner described
in Section 3.17(a); provided, however, that the Special Servicer shall use its
best efforts, consistent with the Servicing Standard, to sell each Specially
Serviced Mortgage Loan and any REO Property prior to the Rated Final
Distribution Date.
(b) In determining whether any offer received from an Interested
Person represents a fair price for any Specially Serviced Mortgage Loan or any
REO Property, the Trustee may conclusively rely on the opinion of an Independent
appraiser or other expert in
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real estate matters retained by the Trustee at the expense of the Trust Fund. In
determining whether any offer constitutes a fair price for any Specially
Serviced Mortgage Loan or any REO Property, the Special Servicer (if the highest
offeror is not an Interested Person) or the Trustee shall take into account, and
any appraiser or other expert in real estate matters shall be instructed to take
into account, as applicable, among other factors, any Updated Appraisal
previously obtained, the period and amount of any delinquency on the affected
Specially Serviced Mortgage Loan, the physical (including environmental)
condition of the related Mortgaged Property or such REO Property, the state of
the local economy and the Trust Fund's obligation to dispose of any REO Property
within the time period specified in Section 3.17(a).
(c) Subject to the provisions of Section 3.17, the Special Servicer
shall act on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Specially Serviced
Mortgage Loan or REO Property, including the collection of all amounts payable
in connection therewith. Any sale of a Specially Serviced Mortgage Loan or any
REO Property shall be without recourse to, or representation or warranty by, the
Trustee, the Fiscal Agent, the Depositor, the Master Servicer, the Special
Servicer or the Trust Fund (except that any contract of sale and assignment and
conveyance documents may contain customary warranties of title, so long as the
only recourse for breach thereof is to the Trust Fund), and, if such sale is
consummated in accordance with the duties of the Special Servicer, the Master
Servicer, the Depositor, the Fiscal Agent and the Trustee pursuant to the terms
of this Agreement, no such Person who so performed shall have any liability to
the Trust Fund or any Certificate holder with respect to the purchase price
therefor accepted by the Special Servicer, if the offeror is not an Interested
Person (or the Trustee, if an Interested Person is an offeror).
(d) The Special Servicer shall file information returns regarding
the abandonment or foreclosure of Mortgaged Properties with the IRS at the time
and in the manner required by the Code.
(e) The proceeds of any sale pursuant to this Section 3.18 after
deduction of the expenses of such sale incurred in connection therewith shall be
promptly, and in any event within one Business Day following receipt thereof,
deposited in the Collection Account in accordance with Section 3.05(a)(iv).
SECTION 3.19. Additional Obligations of the Master Servicer;
Inspections; Successor Manager.
(a) The Master Servicer (or, with respect to Specially Serviced
Mortgage Loans and REO Properties, the Special Servicer) shall inspect or cause
to be inspected each Mortgaged Property at such times and in such manner as are
consistent with the Servicing Standard, but in any event shall inspect each
Mortgaged Property (i) with an Allocated Loan Amount of (A) $5,000,000 or more
at least once every 12 months and (B) less than $5,000,000 at least once every
24 months, in each case commencing in August 1998 (or at such lesser frequency
as each Rating Agency shall have confirmed in writing to the Master Servicer
will
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not result in a downgrade, qualification or withdrawal of the then current
ratings assigned to any Class of the Certificates) and (ii) if any Mortgage Loan
(A) becomes a Specially Serviced Mortgage Loan, (B) has a debt service coverage
ratio (calculated as provided in the related Loan Documents) of less than 1.0
for the immediately preceding twelve-month period or (C) is delinquent for 60
days, the related Mortgaged Property shall be inspected by the Master Servicer
(or the Special Servicer with respect to Specially Serviced Mortgage Loans) as
soon as practicable and thereafter at least every 12 months for so long as such
condition exists. The cost of any such inspection shall be borne by the Master
Servicer unless the related Mortgage Loan is a Specially Serviced Mortgage Loan,
in which case any out-of-pocket costs incurred with respect to such inspection
shall be treated as a Property Advance and borne by the Trust Fund.
(b) With respect to each Mortgage Loan, the Master Servicer and the
Special Servicer (with respect to Specially Serviced Mortgage Loans) shall
enforce the Trustee's rights with respect to the Manager under the related Loan
Documents and Management Agreement. In the event the Master Servicer or the
Special Servicer (with respect to Specially Serviced Mortgage Loans) is entitled
to terminate or cause the related Borrower to terminate the Manager, the Master
Servicer or the Special Servicer, as the case may be, shall promptly give notice
of its right to terminate the Manager to the Trustee (who shall copy the
Certificateholders and the Rating Agencies), the related Originator, the Master
Servicer or Special Servicer, as applicable, and the Depositor. After receipt of
such notice, the most subordinate Class of Certificates then outstanding shall
have the right to recommend termination of the Manager, and if so, to recommend
a Successor Manager (meeting the requirements set forth below).
Certificateholders representing Voting Rights of greater than 50% of such
subordinate Class of Certificates will have ten Business Days from the receipt
of such notice to respond to such notice. Upon receipt of a recommendation to
terminate the Manager and appoint a Successor Manager, the Master Servicer or
the Special Servicer, as the case may be, shall give notice of such
recommendation to the Trustee (who shall copy the Certificateholders), and the
Master Servicer or Special Servicer, as applicable, shall effect such
recommendation unless: (i) within five Business Days of the receipt of notice of
such recommendation, Certificateholders representing Voting Rights of greater
than 50% of any Class of Certificates then outstanding which was assigned a
rating by any Rating Agency on the Closing Date reject such proposed Successor
Manager in which case the Master Servicer or the Special Servicer, as the case
may be, shall procure a Successor Manager as set forth in the following
sentence; or (ii) the Master Servicer or the Special Servicer, as the case may
be, determines that effecting such recommendation to terminate is not consistent
with the Servicing Standard and therefore the Master Servicer or the Special
Servicer, as the case may be, elects not to effect such recommendation. If the
Master Servicer or the Special Servicer, as the case may be, does not receive a
required response (or if the response received is inconsistent) and the Master
Servicer or Special Servicer, as the case may be, determines it is consistent
with the Servicing Standard to terminate the Manager or in the event the Manager
is otherwise terminated or resigns under the related Mortgage or Management
Agreement, the Master Servicer or the Special Servicer, as the case may be,
shall use its best efforts to retain a Successor Manager (or the recommended
Successor Manager, if any) on terms substantially similar to the Management
Agreement or, failing that, on terms as favorable to the Trust Fund
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as can reasonably be obtained. A "Successor Manager" shall be reasonably
acceptable to the Master Servicer or the Special Servicer, as the case may be,
and a professional management corporation or business entity which (i) manages,
and is experienced in managing, other comparable commercial properties, (ii)
will not result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates by each Rating Agency, as confirmed in
writing by each Rating Agency, and (iii) otherwise satisfies any criteria set
forth in the Mortgage and related Loan Documents.
SECTION 3.20. Reports to the Securities and Exchange Commission;
Available Information.
(a) The Depositor shall prepare, sign, and electronically file at
its own expense, any and all Exchange Act Reports as may be required with
respect to the Certificates pursuant to this Agreement. The Trustee, the Special
Servicer and the Master Servicer shall conform to the reporting obligations as
set forth herein and in the event the Depositor notifies the Trustee, the Master
Servicer and the Special Servicer in writing as to any change in the Exchange
Act reporting requirements applicable to the Certificates, to any such changes
as notified by the Depositor. The Master Servicer, the Special Servicer and the
Trustee agree to provide such information to the Depositor and such entity as is
designated by the Depositor pursuant to Section 3.20(f) in a timely fashion as
may be requested by the Depositor, to the extent such information has been
received by the Master Servicer, Special Servicer or the Trustee, as applicable,
in connection with such Exchange Act Reports, so that such Exchange Act Reports
may be timely filed by the Depositor. The Depositor shall retain the
manually-signed copies of each Exchange Act Report and deliver a copy to the
Trustee.
On a monthly basis, prior to the filing by the Depositor of a Form
15, the Depositor will file on behalf of the Trust Fund within 15 days after the
Distribution Date a Form 8-K that would include the following: (i) the Monthly
Distribution Statement, and (ii) certain information received from the Borrowers
under the Loan Documents to the extent received by the Depositor in electronic
format in accordance with Section 3.20(f) as follows: (a) the most recent
monthly operating statement received from each Borrower including a statement or
specific notation of capital expenditures, leasing commissions, and tenant
improvements; and (b) to the extent received since the filing of the immediately
preceding Form 8-K filed pursuant to this paragraph with respect to each
Mortgage Loan: (1) an officer's certificate of the Borrower, (2) occupancy
reports, (3) tenant sales per square foot and rent per square foot by
merchandise category, (4) all tenant notices, and (5) tenant change reports or
listing of tenants that declared bankruptcy or had lease expirations that did
not renew.
On a quarterly basis, prior to the filing by the Depositor of a Form
15, the Depositor will file a Financial Report containing the information
outlined in this paragraph, to the extent the Depositor receives the information
set forth therein in electronic format in accordance with Section 3.20(f),
within 45 days after the end of the relevant Borrower's fiscal quarter. Such
Financial Report shall be with respect to those Borrowers that represent 10% or
more of the aggregate Stated Principal Balance of the Mortgage Loans (on the
date hereof, the DDR/DRA Loan, the Courtyard Loan, the Worldwide Plaza Loan, the
Xxxxxxxx Loan and the
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Arden Loan). Such Financial Report with respect to (i) those Mortgage Loans that
represent 20% or more of the aggregate Stated Principal Balance of the Mortgage
Loans (on the date hereof, the Courtyard Loan and the DDR/DRA Loan) shall
consist of unaudited financial statements with respect to the Mortgaged
Properties securing such Mortgage Loans, and (ii) those Mortgage Loans that
represent 10% but less than 20% of the aggregate Stated Principal Balance of the
Mortgage Loans (on the date hereof, the Worldwide Plaza Loan, the Xxxxxxxx Loan
and the Arden Loan) shall consist of summarized quarterly financial information
(substantially in the form set forth in Exhibits P hereto) as described in Rule
1.02(bb) of Regulation S-X with respect to the Mortgaged Properties securing
such Mortgage Loan. In addition, to the extent received since the filing of the
immediately preceding Financial Report filed pursuant to this paragraph with
respect to the other Mortgage Loans, the Depositor shall promptly file the
quarterly financial statements for each Borrower received pursuant to the Loan
Documents.
On an annual basis, prior to the filing by the Depositor of a Form
15, the Depositor will file a Financial Report containing the information
outlined in this paragraph, to the extent the Depositor receives the information
set forth therein in electronic format in accordance with Section 3.20(f),
within 90 days after the end of the relevant Borrower's fiscal year end. Such
Financial Report shall be with respect to those Borrowers that represent 10% or
more of the aggregate Stated Principal Balance of the Mortgage Loans (on the
date hereof, the Courtyard Loan, the DDR/DRA Loan, the Worldwide Plaza Loan, the
Xxxxxxxx Loan and the Arden Loan). Such Financial Report with respect to (i)
those Mortgage Loans that represent 20% or more of the aggregate Stated
Principal Balance of the Mortgage Loans (on the date hereof, the DDR/DRA Loan
and the Courtyard Loan) shall consist of audited financial statements with
respect to the Mortgaged Properties securing such Mortgage Loans, and (ii) those
Mortgage Loans that represent 10% but less than 20% of the aggregate Stated
Principal Balance of the Mortgage Loans (on the date hereof, the Worldwide Plaza
Loan, the Xxxxxxxx Loan and the Arden Loan) shall consist of summarized annual
financial information (substantially in the form set forth in Exhibit I hereto)
as described in Rule 1.02(bb) of Regulation S-X with respect to the Mortgaged
Properties securing such Mortgage Loan. In addition, to the extent received
since the filing of the immediately preceding Financial Report filed pursuant to
this paragraph with respect to the other Mortgage Loans, the Depositor shall
promptly file the annual audited financial statements for each Borrower received
pursuant to the Loan Documents.
The Master Servicer, the Special Servicer and the Trustee hereby
agree to cooperate with the Borrowers and their accountants in obtaining any
consents of accountants that are required to be filed with any financial
statements being filed on a Form 10-K or Form 8-K.
If information for any Financial Report is incomplete by the date on
which required to be filed, the Depositor shall prepare and execute a Form
12b-25.
None of the Master Servicer, the Special Servicer or the Trustee
shall (i) file a Form ID with respect to the Depositor or (ii) cause the Trust
Fund to stop filing reports,
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statements and information with the Commission pursuant to this Section unless
directed to do so by the Depositor or the continued reporting is prohibited
under the Exchange Act or any regulations thereunder. To the extent that the
Certificates are held of record by less than 300 persons within the meaning of
Section 15(d) of the Exchange Act, the Depositor shall file on or before January
15, 1998, or within 15 days following the end of such later fiscal year in which
the Certificates are held of record by less than 300 persons within the meaning
of Section 15(d) of the Exchange Act, a Form 15 (a "Form 15") in accordance with
the provisions of Rule 12h-3 under the Exchange Act, suspending the reporting
obligations set forth herein.
(b) The Master Servicer, prior to the filing of a Form 15 by the
Depositor, shall promptly prepare and provide to the Trustee a report (each, a
"Special Event Report") reporting (i) any notice from a Borrower or insurance
company, or any knowledge otherwise obtained, regarding an upcoming voluntary or
involuntary prepayment (including that resulting from a casualty or
condemnation) or defeasance of all or part of the related Mortgage Loan
(provided that a request by a Borrower or other Person for a quotation of the
amount necessary to satisfy all obligations with respect to a Mortgage Loan
shall not, in and of itself, be deemed to be such notice); (ii) any imminent or
actual monetary default or other default on a Mortgage Loan the results of which
the Master Servicer, after consultation with the Special Servicer, reasonably
believes is likely to result in the acceleration of the indebtedness due under
such Mortgage Loan; (iii) the results of any property inspection of which the
Master Servicer has knowledge and which has revealed any material damage or
deterioration or the presence of any environmental condition with respect to any
Mortgaged Property, which the Master Servicer determines can reasonably be
expected to materially adversely affect the cash flow generated by such
Mortgaged Property; (iv) any notice from a Borrower, or any knowledge otherwise
obtained, regarding any litigation involving such Borrower or any related
Mortgaged Property which the Master Servicer reasonably believes is likely to
have an adverse effect on the Mortgaged Property or the ability of such Borrower
to pay the amounts due under the related Mortgage Loan; (v) any notice received
from a Borrower, Manager or tenant of a Mortgaged Property, or any knowledge
otherwise obtained, regarding the material default of such tenant under the
terms of its lease or early termination by either the tenant or the Borrower of
such lease, the bankruptcy of such tenant or its direct or indirect parent, the
loss of a license or permit relating to the Mortgaged Property or other material
adverse tenant activity; (vi) any amendment, modification or waiver of a
material provision of a Mortgage Loan of which the Master Servicer has
knowledge; (vii) any event of which the Master Servicer has actual knowledge
(other than an event covered by clause (i)) which would result in the release of
any part of the Mortgaged Property; (viii) Mortgage Loans which have come to the
Master Servicer's attention in the performance of its duties under this
Agreement that (A) any tenant occupying 25% or more of the space in the related
Mortgaged Property has vacated (without being replaced by a comparable tenant
and lease) or been the subject of bankruptcy or similar proceedings or (B)
relate to a borrower or an affiliate that is the subject of a bankruptcy or
similar proceeding; provided, however, that in the event that the Master
Servicer after consulting with the Depositor and the Special Servicer determines
in its good faith judgment that any of the preceding items will not materially
affect the interests of the Certificateholders, the Master Servicer shall omit
such item from the reporting obligation described above.
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With respect to any Specially Serviced Mortgage Loan or any REO
Property, the Special Servicer shall report to the Master Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Mortgage Loans,
the Master Servicer and the Special Servicer shall provide to each other and to
the Trustee written notice of any other known event with respect to a Mortgage
Loan or REO Property that the Master Servicer or the Special Servicer,
respectively, determines would have a material adverse effect on such Mortgage
Loan or REO Property, which notice shall include an explanation as to the reason
for such material adverse effect.
(c) The Master Servicer shall collect on a monthly basis all
information required pursuant to the Mortgage Loans. The Master Servicer shall
from time to time contact the Borrowers regarding the delivery of financial
information required by the Loan Documents commencing at least 15 days prior to
the date on which each Borrower is obligated to provide the Master Servicer with
quarterly and annual financial statements or reports so that such statements and
reports will be delivered to the Master Servicer in a timely fashion. The Master
Servicer will cause such information to be provided for the Depositor to enable
the Depositor to comply with the Exchange Act reporting requirements in this
Section 3.20.
(d) The Master Servicer shall, in accordance with such reasonable
rules and procedures as it may adopt (which may include the requirement that an
agreement that provides that such information shall be used solely for purposes
of evaluating the investment characteristics of the Certificates be executed to
the extent the Master Servicer deems such action to be necessary or
appropriate), also make available any additional information relating to the
Mortgage Loans, the Mortgaged Properties or the Borrowers, for review by the
Depositor, the Rating Agencies, the Certificateholders and any other Persons to
whom the Master Servicer believes such disclosure is appropriate, in each case
except to the extent doing so is prohibited by applicable law or by any related
Loan Documents related to a Mortgage Loan. Consistent with the foregoing, the
Master Servicer may, at its discretion, at the request of any of the Depositor,
the Rating Agencies, the Trustee or any Certificateholder, but is not required
to, prepare from information delivered by the Borrowers pursuant to any of the
Loan Documents one or more reports in addition to the reports that the Master
Servicer is required to furnish pursuant to this Agreement and may charge for
such service a fee to any Person requesting a copy of any such additional
report. The Master Servicer may, but is not required to, make information which
is otherwise available to the public available on the Internet.
(e) The Trustee shall deliver a copy of each Operating Statement
Analysis and Annual Compliance Report to each Rating Agency. The Trustee shall
also deliver a copy of each Special Event Report to each Rating Agency,
Certificateholder, Beneficial Owner, if known, and the Depositor within one
Business Day of receipt. The Trustee shall so deliver the foregoing information
and reports and the Depositor shall file such Operating Statement Analysis and
Annual Compliance Reports annually on Form 10-K and shall file such Special
Event Reports on Form 8-K promptly upon the occurrence of the applicable event,
in each case unless the Trust Fund is no longer filing Exchange Act Reports.
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The Master Servicer and the Special Servicer shall make available at
its offices during normal business hours, or send to the requesting party at the
expense of each such requesting party (other than the Rating Agencies) for
review by the Depositor, the Trustee, the Rating Agencies, any
Certificateholder, any Person identified to the Master Servicer or the Special
Servicer, as applicable, by a Certificateholder as a prospective transferee of a
Certificate and any other Persons to whom the Master Servicer or the Special
Servicer, as applicable, believes such disclosure to be appropriate the
following items: (i) all financial statements, occupancy information, rent rolls
and similar information received by the Master Servicer or the Special Servicer,
as applicable, from each Borrower, (ii) the inspection reports prepared by or on
behalf of the Master Servicer or the Special Servicer, as applicable, in
connection with the property inspections pursuant to Section 3.19, (iii) any and
all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into by the Master Servicer or the Special Servicer, as applicable, and
(iv) any and all officer's certificates and other evidence delivered to the
Trustee and the Depositor to support the Master Servicer's determination that
any Advance was, or if made would be, a Nonrecoverable Advance. The Master
Servicer may require that such party execute a reasonable confidentiality
agreement customary in the industry (and approved by the Depositor) with respect
to such information.
Copies of any and all of the foregoing items shall be available from
the Master Servicer or the Special Servicer, as applicable, or the Trustee, as
applicable, upon request at the requesting party's expense.
(f) The Depositor shall designate, and pay the expenses of, a
financial printer or other entity (which may be the Trustee) to prepare the
materials required to be filed pursuant to this Section 3.20 for filing via the
XXXXX system, and the Master Servicer and Special Servicer shall each cooperate
fully with such entity and the Master Servicer and the Special Servicer shall
provide the information required hereunder, to the extent made available by the
related Borrowers, in a timely manner in order to allow the Depositor to file
such materials at the times required hereunder.
SECTION 3.21. Lock-Box Accounts, Escrow Accounts and Reserve
Accounts.
The Master Servicer shall administer each Lock-Box Account, Escrow
Account and Reserve Account in accordance with the related Mortgage or Loan
Agreement or Lock-Box Agreement, if any, and administer any letters of credit
pursuant to the related letter of credit agreement and the Loan Documents.
SECTION 3.22. Property Advances.
(a) The Master Servicer (or, to the extent provided in Section
3.22(b), the Trustee or the Fiscal Agent or, to the extent specifically provided
for in this Agreement, the Special Servicer) shall make any Property Advances as
and to the extent otherwise required pursuant to the terms hereof.
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For purposes of distributions to Certificateholders and compensation
to the Master Servicer, Special Servicer or Trustee, Property Advances shall not
be considered to increase the principal balance of any Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so provide.
(b) The Master Servicer shall notify the Trustee and the Fiscal
Agent, and the Special Servicer shall notify the Master Servicer, the Trustee
and the Fiscal Agent, in writing promptly upon, and in any event within one
Business Day after, becoming aware that it will be unable to make any Property
Advance required to be made pursuant to the terms hereof, and in connection
therewith, shall set forth in such notice the amount of such Property Advance,
the Person to whom it will be paid, and the circumstances and purpose of such
Property Advance, and shall set forth therein information and instructions for
the payment of such Property Advance, and, on the date specified in such notice
for the payment of such Property Advance, or, if the date for payment has passed
or if no such date is specified, then within five Business Days following such
notice, the Trustee (or with respect to a Property Advance required to be made
by the Special Servicer, the Master Servicer, and if the Master Servicer so
fails, the Trustee), subject to the provisions of Section 3.22(c), shall pay the
amount of such Property Advance in accordance with such information and
instructions. If the Trustee fails to make any Property Advance required to be
made under this Section 3.22, the Fiscal Agent, subject to the provisions of
Section 3.22(c), shall make such Advance on the same day the Trustee was
required to make such Property Advance and, thereby, the Trustee shall not be in
default under this Agreement.
(c) None of the Master Servicer, the Trustee, the Fiscal Agent or
the Special Servicer shall be obligated to make a Property Advance as to any
Mortgage Loan or REO Property if the Master Servicer, the Trustee, the Fiscal
Agent or the Special Servicer, as applicable, determines that such Advance will
be a Nonrecoverable Advance. The Trustee and the Fiscal Agent (or the Master
Servicer with respect to a Property Advance required to be made by the Special
Servicer) shall be entitled to rely, conclusively, on any determination by the
Master Servicer or Special Servicer, as applicable, that a Property Advance, if
made, would be a Nonrecoverable Advance. The Trustee, the Fiscal Agent and the
Special Servicer, in determining whether or not a Property Advance previously
made is, or a proposed Property Advance, if made, would be, a Nonrecoverable
Advance shall be subject to the standards applicable to the Master Servicer
hereunder.
(d) The Master Servicer, the Special Servicer, the Trustee and/or
the Fiscal Agent, as applicable, shall be entitled to the reimbursement of
Property Advances made by any of them to the extent permitted pursuant to
Section 3.06(ii) of this Agreement, together with any related Advance Interest
Amount in respect of such Property Advances, and the Master Servicer and Special
Servicer hereby covenant and agree to promptly seek and effect the reimbursement
of such Property Advances from the related Borrowers to the extent permitted by
applicable law and the related Loan Documents.
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SECTION 3.23. Appointment of Special Servicer.
(a) The Master Servicer is hereby appointed as the initial Special
Servicer to service each Specially Serviced Mortgage Loan.
(b) Certificateholders representing greater than 50% of the
Percentage Interests of the most subordinate Class of Certificates outstanding
at any time shall be entitled to remove the Special Servicer with or without
cause and to appoint a successor Special Servicer entitled to the same servicing
compensation as its predecessor, provided that each Rating Agency confirms to
the Trustee in writing that such appointment, in and of itself, would not have
caused a downgrade, qualification or withdrawal of the then current ratings
assigned to any Class of Certificates. If there is a Special Servicer Event of
Default, the Special Servicer shall be removed and replaced pursuant to Sections
7.01(c) and 7.02. The Special Servicer may be removed by Certificateholders as
aforesaid with respect to only one or more Mortgage Loans and remain the Special
Servicer with respect to the remainder of the Mortgage Loans; provided that a
successor Special Servicer is appointed, in respect of the Mortgage Loans that
the Special Servicer would no longer be servicing, as provided in this Section
3.23.
(c) The appointment of any such successor Special Servicer, shall
not relieve the Master Servicer, the Trustee or the Fiscal Agent of their
respective obligations to make Advances as set forth herein; provided, however,
the initial Special Servicer specified in Section 3.23(a) above shall not be
liable for any actions or any inaction of such successor Special Servicer. Any
termination fee payable to the terminated Special Servicer (and it is
acknowledged that there is no such fee payable in the event of a termination of
the Master Servicer as Special Servicer following the occurrence of an Event of
Default hereunder) shall be paid by the Certificateholders so terminating the
Special Servicer and shall not in any event be an expense of the Trust Fund.
(d) No termination of the Special Servicer and appointment of a
successor Special Servicer shall be effective until the successor Special
Servicer has assumed all of its responsibilities, duties and liabilities
hereunder pursuant to a writing satisfactory to the Trustee and each Rating
Agency, as evidenced in writing and the Trustee has received written
confirmation from each Rating Agency that such appointment would not cause any
Rating Agency to qualify, withdraw or downgrade any of its then current ratings
on any Certificates.
(e) Any successor Special Servicer shall be deemed to make the
representations and warranties provided for in Section 2.04(b) mutatis mutandis
as of the date of its succession.
SECTION 3.24. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that any Mortgage Loan has become a Specially
Serviced Mortgage Loan, the Master Servicer shall immediately give notice
thereof to the Special Servicer and shall use its best efforts to provide the
Special Servicer with all
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information, documents (but excluding the original documents constituting the
Mortgage File) and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably
requested by the Special Servicer to enable it to assume its duties hereunder
with respect thereto without acting through a sub-servicer. The Master Servicer
shall use its best efforts to comply with the preceding sentence within five
Business Days of the date such Mortgage Loan became a Specially Serviced
Mortgage Loan and in any event shall continue to act as Master Servicer and
administrator of such Mortgage Loan until the Special Servicer has commenced the
servicing of such Mortgage Loan, which shall occur upon the receipt by the
Special Servicer of the information, documents and records referred to in the
preceding sentence. With respect to each Mortgage Loan that becomes a Specially
Serviced Mortgage Loan, the Master Servicer shall instruct the related Borrower
to continue to remit all payments in respect of such Mortgage Loan to the Master
Servicer. If GMAC Commercial Mortgage Corporation ceases to be the Master
Servicer or the Special Servicer, the then current Master Servicer and Special
Servicer may agree that, notwithstanding the preceding sentence, with respect to
each Mortgage Loan that became a Specially Serviced Mortgage Loan, the Master
Servicer shall instruct the related Borrower to remit all payments in respect of
such Mortgage Loan to the Special Servicer, provided that the payee in respect
of such payments shall remain the Master Servicer. The Special Servicer shall
remit to the Master Servicer any such payments received by it pursuant to the
preceding sentence within one Business Day of receipt. The Master Servicer shall
forward any notices it would otherwise send to the Borrower of a Specially
Serviced Mortgage Loan to the Special Servicer who shall send such notice to the
related Borrower.
Upon determining that no event has occurred and is continuing with
respect to a Mortgage Loan that causes such Mortgage Loan to be a Specially
Serviced Mortgage Loan, the Special Servicer shall immediately give notice
thereof to the Master Servicer and, upon giving such notice, such Mortgage Loan
shall cease to be a Specially Serviced Mortgage Loan in accordance with the
first proviso of the definition of Specially Serviced Mortgage Loans, the
Special Servicer's obligation to service such Mortgage Loan shall terminate and
the obligations of the Master Servicer to service and administer such Mortgage
Loan as a Mortgage Loan that is not a Specially Serviced Mortgage Loan shall
resume. In addition, if the related Borrower has been instructed, pursuant to
the preceding paragraph, to make payments to the Special Servicer, upon such
determination, the Special Servicer shall instruct the related Borrower to remit
all payments in respect of such Specially Serviced Mortgage Loan directly to the
Master Servicer.
(b) In servicing any Specially Serviced Mortgage Loan, the Special
Servicer shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Master Servicer as well as copies of any
analysis or internal review prepared by or for the benefit of the Special
Servicer.
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(c) Not later than the Business Day preceding each date on which the
Master Servicer is required to furnish a report under Section 3.13(a) to the
Trustee, the Special Servicer shall deliver to the Master Servicer a written
statement describing, on a Mortgage Loan by Mortgage Loan basis, (i) the amount
of all payments on account of interest received on each Specially Serviced
Mortgage Loan, the amount of all payments on account of principal, including
Principal Prepayments, on each Specially Serviced Mortgage Loan, the amount of
Net Insurance Proceeds and Net Liquidation Proceeds received with respect to
each Specially Serviced Mortgage Loan, and the amount of net income or net loss,
as determined from management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
rental income that does not constitute Rents from Real Property with respect to
the REO Property relating to each applicable Specially Serviced Mortgage Loan,
in each case in accordance with Section 3.17 and (ii) such additional
information relating to the Specially Serviced Mortgage Loans as the Master
Servicer or Trustee reasonably requests to enable it to perform its duties under
this Agreement.
(d) Notwithstanding the provisions of the preceding subsection (c),
the Master Servicer shall maintain ongoing payment records with respect to each
of the Specially Serviced Mortgage Loans and shall provide the Special Servicer
with any information reasonably required by the Special Servicer to perform its
duties under this Agreement. The Special Servicer shall maintain accurate
records with respect to the Specially Serviced Mortgage Loans and shall provide
the Master Servicer with any information reasonably required by the Master
Servicer to perform its duties under this Agreement.
SECTION 3.25. Interest Reserve Account.
The Trustee shall establish and maintain the Interest Reserve
Account in the Trustee's name for the benefit of the Certificateholders. The
Interest Reserve Account shall be established and maintained as an Eligible
Account. On each Master Servicer Remittance Date occurring in February and on
any Master Servicer Remittance Date occurring in January in a year which is not
a leap year, the Master Servicer shall remit to the Trustee, in respect of the
DDR/DRA Loan, the Xxxxxxxx Loan, the Arden Loan, the Xxxxx Xxxxxx Loan and the
Sun Communities Loan, for deposit into the Interest Reserve Account, an amount
equal to one day's interest at the related Mortgage Rate on the Stated Principal
Balance of each such Mortgage Loan or Worldwide Component as of the Due Date in
the month preceding the month in which such Master Servicer Remittance Date
occurs, to the extent a Scheduled Payment or P&I Advance is made in respect
thereof (all amounts so deposited in any consecutive January (if applicable) and
February, "Withheld Amounts").
SECTION 3.26. Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to Specific
Mortgage Loans.
(a) Notwithstanding anything contained elsewhere in this Agreement
to the contrary, the Master Servicer or Special Servicer, as applicable, shall
be subject to the
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following limitations or authorizations, as applicable, with respect to the
specific Mortgage Loans identified below.
(i) Upon the occurrence of an event of default under the Loan
Documents with respect to the Worldwide Plaza Loan, the Master Servicer
shall apply all funds received with respect to the Worldwide Plaza Loan in
the following order: (a) to fund the tax and insurance escrow fund in
accordance with the Servicing Standard, (b) to interest on the Worldwide
Plaza Fixed Component A at the Mortgage Rate for the Worldwide Plaza Fixed
Component A, (c) to interest on the Worldwide Plaza LIBOR Component at the
Mortgage Rate for the Worldwide Plaza LIBOR Component, (d) to interest on
the Worldwide Plaza Fixed Component B at the Mortgage Rate for the
Worldwide Plaza Fixed Component B, (e) to principal on the Worldwide Plaza
Fixed Component A, until the principal balance thereof is reduced to zero,
(f) to principal on the Worldwide Plaza LIBOR Component, until the
principal balance thereof is reduced to zero, (g) to principal on the
Worldwide Plaza Fixed Component B, until the principal balance thereof is
reduced to zero, (h) to Default Interest due with respect to the Worldwide
Plaza Loan, and (i) to any other amounts due under the Worldwide Plaza
Loan documents.
(ii) In the event that the Worldwide Plaza Loan is the subject of an
Appraisal Reduction Event, the Master Servicer shall apply any P&I
Advances with respect to the Worldwide Plaza Loan in the following manner:
(i) the interest portion of any such P&I Advance shall be applied first to
the Worldwide Plaza Fixed Component A, second, to the Worldwide Plaza
LIBOR Component and finally to the Worldwide Plaza Fixed Component B, and
(ii) the principal portion of any such P&I Advance shall be applied first
to the Worldwide Plaza Fixed Component A to the extent outstanding,
second, to the Worldwide Plaza LIBOR Component to the extent outstanding,
and finally to the Worldwide Plaza Fixed Component B.
(iii) With respect to the Worldwide Plaza Loan, the Master Servicer
shall not consent to any material financial modification to the leases for
Cravath, Swaine & Xxxxx and Ogilvy & Xxxxxxx without written confirmation
from the Rating Agencies that such modification will not result in a
downgrade, qualification or withdrawal of the then current ratings of the
Certificates.
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(iv) In the event that the Interest Rate Cap Provider is delinquent
in making any of the payments required pursuant to the Interest Rate Cap
Agreement, the Master Servicer shall immediately notify the Trustee and
each Rating Agency of such delinquency.
(v) With respect to the Sun Communities Loan, the Master Servicer
shall not consent to the transfer of any interest in the borrower or the
general partner of such borrower which results in the transferee owning
more than a 49% interest in the borrower or general partner of the
borrower (unless such transferee owned more than a 49% interest prior to
such transfer) unless the Rating Agencies confirm that such transfer will
not result in a qualification, downgrade or withdrawal of the ratings then
applicable to the Certificates.
(vi) With respect to the Sun Communities Loan, the Master Servicer
shall not consent to the replacement of the property manager unless the
Rating Agencies confirm that such transfer will not result in a
qualification, downgrade or withdrawal of the ratings then applicable to
the Certificates.
(b) With respect to any Mortgage Loan which permits the related
Borrower, with the consent or grant of a waiver by mortgagee, to incur
additional indebtedness or to amend or modify the related Borrower's
organizational documents, then the Master Servicer or the Special Servicer, as
the case may be, may only consent to either such action, or grant a waiver with
respect thereto, if the Master Servicer or the Special Servicer determines that
such consent or waiver is likely to result in a greater recovery on a present
value basis (discounted at the related Mortgage Rate) than would not consenting
to such action and the Master Servicer or the Special Servicer first obtains
written confirmation from each Rating Agency that such consent or grant of a
waiver would not, in and of itself, result in a downgrade, qualification or
withdrawal of any of the then current ratings assigned to the Certificates. Any
such consent or waiver shall also satisfy the criteria set forth in Section 3.09
(b), to the extent applicable.
(c) In the event that Rating Agency confirmation is required in
connection with any exercise of rights by the Master Servicer or the Special
Servicer, as applicable, under any Mortgage Loan, the Master Servicer or Special
Servicer, as the case may be, shall use its reasonable best efforts to cause the
related Borrower to pay any fee required by the applicable Rating Agency for
such confirmation. If the related Borrower does not pay such fee, and the
Mortgage Loan is a Specially Serviced Mortgage Loan, such fee shall be paid by
the Master Servicer or Special Servicer, as the case may be, as an Advance and
shall be borne by the Trust Fund. If the Borrower does not pay such fee, and the
Mortgage Loan is not a Specially Serviced Mortgage Loan, the Depositor shall pay
such fee. Notwithstanding the reimbursement of any such amounts by the Trust
Fund, the Master Servicer and the Special Servicer shall continue consistent
with the Servicing Standard to endeavor to collect any such amounts from the
related Borrower.
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(d) Prior to taking any enforcement action with respect to a
Mortgage Loan secured in whole or in part by Mortgaged Properties located in a
"one-action" state, the Master Servicer or Special Servicer, as applicable,
shall consult with legal counsel admitted to practice in the relevant
jurisdiction, the fees and expenses of which shall be an expense of the Trust
Fund.
(e) With respect to all Mortgage Loans that provide that the holder
of the related Note may apply the monthly payment against principal, interest
and any other sums due in the order as the holder shall determine, the Master
Servicer shall apply such Scheduled Payment to interest (other than Excess
Interest or Default Interest) under the related Mortgage Loan prior to
application to principal or any other sums due.
(f) With respect to each Mortgage Loan, neither the Master Servicer
nor the Special Servicer (including in its capacity as a Certificateholder, if
applicable), shall take any enforcement action with respect to the payment of
Excess Interest or principal in excess of the principal component of the
constant Scheduled Payment, other than requests for collection, until the
Maturity Date of the related Mortgage Loan; provided, that the Master Servicer
or Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Loan Documents.
(g) The obligations of the Master Servicer and Special Servicer set
forth in this Section 3.26 shall be subject to the operative documents with
respect to the related Mortgage Loan, and the failure or inability of the
related Borrower to comply with the Master Servicer's or the Special Servicer's
direction shall not be deemed to be an Event of Default of the Master Servicer
or the Special Servicer hereunder.
(h) The Master Servicer or the Special Servicer, as applicable,
shall be permitted, in its discretion, to waive all or any accrued Excess
Interest if, prior to the related Maturity Date, the related Borrower has
requested the right to prepay the Mortgage Loan in full together with all
payments required by the Mortgage Loan in connection with such prepayment except
for all or a portion of accrued Excess Interest, provided that the Master
Servicer or the Special Servicer, as applicable, determines (taking into account
the value and revenues of the related Mortgaged Property and the ability of the
Borrower to pay the Mortgage Loan (including such Excess Interest)) that (1) in
the absence of the waiver of such Excess Interest, there is a reasonable
likelihood that the Mortgage Loan will not be paid in full on the related
Maturity Date and (2) the waiver of the right to such accrued Excess Interest is
reasonably likely to produce a larger (and not equivalent) payment in the
aggregate to Certificateholders on a present value basis than a refusal to waive
the right to such Excess Interest. The Master Servicer shall have no liability
to the Trust Fund, the Certificateholders or any other person so long as such
determination is based on such criteria. In no event shall such waiver of such
Excess Interest be effective prior to the date of actual prepayment in full
(other than such waived Excess Interest), and such waiver shall in no event be
effective if such prepayment is not made.
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(i) The Master Servicer shall send written notice to each Borrower
and the related Manager and clearing bank that, if applicable, the Master
Servicer and/or the Trustee has been appointed as the "Designee" of the "Lender"
(or equivalent terminology) under any related Lock-Box Agreement.
(j) For any Mortgage Loan and with respect to which, under the terms
of the related Loan Documents, the mortgagee may, in its discretion, apply
Insurance Proceeds, condemnation awards or escrowed funds to the prepayment of
such loan prior to the expiration of the related Lock-out Period, the Master
Servicer or Special Servicer, as applicable, may only require such a prepayment
if the Master Servicer or Special Servicer, as applicable, has determined in
accordance with the Servicing Standard that such prepayment is in the best
interests of the Certificateholders.
SECTION 3.27. Modifications.
(a) During the term of a Mortgage Loan, the Special Servicer, may,
consistent with the Servicing Standard, agree to modify a Specially Serviced
Mortgage Loan to reduce the amount of principal (but, except as provided in this
Section 3.27, not interest) payable monthly on such Mortgage Loan, provided that
(a) a material default in respect of payment on such Mortgage Loan has occurred
or, in the Special Servicer's reasonable and good faith judgment, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable, and such
modification is reasonably likely to produce a greater recovery to
Certificateholders, on a net present value basis, than would liquidation, such
determination to be evidenced by an Officer's Certificate delivered to the
Rating Agencies and accompanied by the Special Servicer's calculation of such
net present value and any other documentation supporting such determination, (b)
the Special Servicer terminates the related manager (unless the Special Servicer
determines that retaining such manager is conducive to maintaining the value of
the related Mortgaged Properties); and (c) the Special Servicer may only agree
to reductions of monthly payments of principal lasting a period of no more than
twelve consecutive months and, in the aggregate, to no more than three
reductions of twelve months or less each; provided, however, Certificateholders
representing greater than 66-2/3% of all Voting Rights may direct the Special
Servicer not to agree to any such modification. The Special Servicer shall
promptly provide a copy of such proposed modification to the Master Servicer,
the Rating Agencies and the Trustee. The Trustee shall, within two Business
Days, notify, in writing, all of the Certificateholders that have Voting Rights
of such proposed modification. For purposes of determining whether
Certificateholders representing 66-2/3% of all Voting Rights have directed the
Special Servicer not to agree to such modification, each Certificateholder shall
have 15 days following the date of the Trustee's notice to respond to such
notice, and any Certificateholder that has not responded within such time period
shall be deemed to have consented to such modification.
Additionally, the Special Servicer may, consistent with the
Servicing Standard, agree to any modification, waiver or amendment of any term
or forgive or defer interest on and principal of, and/or add collateral for, any
Mortgage Loan with the consent of Certificateholders representing 66-2/3% of the
Percentage Interests of the most subordinate
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Class of Certificates then outstanding (or if the Certificate Principal Amount
of such Class is less than 25% of the initial Certificate Principal Amount
thereof, the next most subordinate Class) (the "Directing Class"), subject,
however, to each of the following limitations, conditions and restrictions: (a)
a material default in respect of such Mortgage Loan has occurred or, in the
Special Servicer's reasonable and good faith judgment, a default in respect of
payment on such Mortgage Loan is reasonably foreseeable, and such modification,
waiver, amendment or other action is reasonably likely to produce a greater
recovery to Certificateholders, on a net present value basis, than would
liquidation, such determination to be evidenced by an Officer's Certificate
delivered to the Rating Agencies and accompanied by the Special Servicer's
calculation of such net present value and any other documentation supporting
such determination; (b) no reduction in the scheduled monthly payment of
interest on any Mortgage Loan as a result of such modification, waiver or
amendment may result in an Interest Shortfall to any Class other than the
Directing Class, determined as of the date of such modification, waiver or
amendment; (c) any reduction in the scheduled monthly payment of principal
and/or interest on any Mortgage Loan must require that all cash flow on all
related Mortgaged Properties in excess of amounts required to operate and
maintain such Mortgaged Properties be applied to payments of principal and
interest on such Mortgage Loan; (d) the Special Servicer may only agree to
reductions of principal and/or interest lasting a period of no more than twelve
consecutive months and, in the aggregate, to no more than three periods of
twelve months or less each; (e) the Special Servicer may not reduce any
Prepayment Premium or Lock-out Period other than in connection with the default
of the related Mortgage Loan; (f) the Special Servicer may not at any time
forgive principal of a Mortgage Loan to the extent that the amount forgiven,
together with all amounts of principal previously forgiven pursuant to this
paragraph would be in excess of (i) the Certificate Principal Amount of the
Directing Class less the sum of (ii) the aggregate amount of Appraisal Reduction
Amounts then outstanding and (iii) the aggregate amount of Interest Shortfalls
then outstanding (other than with respect to the Directing Class with respect to
Interest Shortfalls); and (g) the Special Servicer shall not permit any Borrower
to add any real property collateral unless the Special Servicer has first
determined in accordance with the Servicing Standard, based upon an
environmental assessment prepared by an Independent Person who regularly
conducts environmental assessments, at the expense of the Borrower, that such
additional real property collateral is in compliance with applicable
environmental laws and regulations and that there are no circumstances or
conditions present with respect to such new collateral relating to the use,
management or disposal of any Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation would be required
under any then applicable environmental laws and/or regulations. Notwithstanding
the foregoing, the Trustee shall promptly upon request provide the Special
Servicer with such information as is in its possession and as is reasonably
necessary to enable the Special Servicer to make the determinations required by
clauses (b) and (f) above. If the Certificateholders representing 100% of the
Percentage Interests of the second most subordinate Class of Certificates then
outstanding consent to such modification, waiver or amendment, the Directing
Class for purposes of the determinations made in clauses (b) and (f) shall
include the second most subordinate Class of Certificates and the amount by
which principal can be reduced shall not be in excess of 80% of the aggregate
principal balance of both such Classes less the items
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specified in clause (f)(ii) and (f)(iii). A modification pursuant to this
paragraph is not subject to the veto of Certificateholders set forth in the
preceding paragraph of this Section.
(b) Notwithstanding Section 3.27(a), the Master Servicer or the
Special Servicer, as applicable, shall be permitted to modify, waive or amend
any term of a Mortgage Loan that is not in default or as to which default is not
reasonably foreseeable, but only if such modification, waiver or amendment (a)
would not be "significant" as such term is defined in Code Section 1001, or
Treasury Regulations Section 1.860G-2(b)(3), as determined by the Master
Servicer or Special Servicer (and the Master Servicer or Special Servicer may
rely on an Opinion of Counsel in making such determination), (b) would be in
accordance with the Servicing Standard and (c) would not adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The consent thereto of the majority of Percentage Interests of each Class of
Certificates affected thereby or written confirmation from each Rating Agency
that such modification, waiver or amendment will not result in a qualification,
withdrawal or downgrading of the then current ratings assigned to the
Certificates shall not be required but shall be conclusive evidence that such
modification, waiver or amendment would not adversely affect in any material
respect the interest of any Certificateholder not consenting thereto.
(c) The Master Servicer or Special Servicer, as applicable, shall
provide copies of any modifications, waivers or amendments pursuant to this
Section 3.27 to each Rating Agency and to the Depositor.
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ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, to the extent of Available Funds and
Prepayment Premiums, amounts held in the Lower-Tier Distribution Account shall
be withdrawn and distributed on the Lower-Tier REMIC Regular Interests as
follows:
(i) The amounts and timing of principal and interest payments on
each Class of Lower-Tier REMIC Regular Interest will be identical to such
amounts and timing on the corresponding Class of Related Certificates for
such Distribution Date, except that, solely for this purpose, all
calculations with respect to the Related Certificates shall be made as
though (a) (I) the Class A-1, Class A-2, Class A-3, Class B, Class C-1,
Class D, Class E and Class F Certificate Interest Rates were equal to the
Group 1 WAC Rate and (II) the Class C-2 Certificate Interest Rate were
equal to the Net Mortgage Rate of the Worldwide Plaza LIBOR Component, and
(b) the Notional Amounts of the Class X-1 and Class X-2 Certificates were
zero at all times. The Certificate Principal Amount of each Class of
Lower-Tier Regular Interests shall at all times be equal to the
Certificate Principal Amount of its Class of Related Certificates, and the
interest rate of each Class of Lower-Tier Regular Interests (other than
the Class LC-2 Interest) shall be the Group 1 WAC Rate, and the interest
rate of the Class LC-2 Interest shall be the Net Mortgage Rate of the
Worldwide Plaza LIBOR Component.
(ii) Any Prepayment Premium that is to be paid on a Regular
Certificate on such Distribution Date shall be distributed pro rata to the
Lower-Tier Regular Interests in proportion to their Certificate Balances
outstanding as of such date.
(iii) Realized Losses and other amounts specified in Section 4.01(g)
shall be allocated to, and shall reduce the Certificate Principal Amount
of, each Class of Lower-Tier Regular Interests without distribution on any
Distribution Date, to the extent that the Certificate Principal Amount of
such Class exceeds the Certificate Principal Amount of the corresponding
Class of Related Certificates because of Realized Losses and other amounts
specified in Section 4.01(g) allocated to such Related Certificates.
Amounts recovered in respect of any amounts previously written off as
Realized Losses and other amounts specified in Section 4.01(g) will be
distributed on the Related Lower-Tier Regular Interests, to the extent
that amounts recovered in respect of any amounts previously written off as
Realized Losses and other amounts specified in Section 4.01(g) are
distributed on the corresponding Related Certificates.
(iv) On each Distribution Date, any amounts remaining in the
Lower-Tier Distribution Account after the distributions set forth above in
this Section 4.01(a)(i)-(iii) shall be distributed to the Class LR
Certificates.
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(b) On each Distribution Date, amounts distributed on the Lower-Tier
Regular Interests shall be deposited in the Upper-Tier Distribution Account. On
each Distribution Date, Holders of each Class of Group 1 Certificates (and the
Class R Certificates) shall receive distributions from amounts on deposit in the
Upper-Tier Distribution Account in respect of interest and principal, to the
extent of Available Funds with respect to the Group 1 Loans, in the amounts and
in the order of priority set forth below:
(i) First, pro rata, in respect of interest, to the Class A-1, Class
A-2, Class A-3 and Class X-1 Certificates, up to an amount equal to, and
pro rata as among such Classes in accordance with, the aggregate Interest
Distribution Amounts of such Classes;
(ii) Second, to the Class A-1 Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount with respect to Loan Group 1, until the
Certificate Principal Amount thereof is reduced to zero;
(iii) Third, to the Class A-2 Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount with respect to Loan Group 1 less the
portion of such Principal Distribution Amount distributed pursuant to the
prior clause, until the Certificate Principal Amount thereof is reduced to
zero;
(iv) Fourth, to the Class A-3 Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount with respect to Loan Group 1 less the
portion of such Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Principal Amount thereof is reduced
to zero;
(v) Fifth, to the Class B Certificates, in respect of interest, up
to an amount equal to the Interest Distribution Amount of such Class;
(vi) Sixth, to the Class B Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount with respect to Loan Group 1 less the
portion of such Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Principal Amount thereof is reduced
to zero;
(vii) Seventh, to the Class B Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount with respect to Loan Group 1 less the portion of such
Principal Distribution Amount distributed pursuant to all prior clauses,
an amount equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class, plus interest thereon at the
Certificate Interest Rate for such Class compounded monthly from the date
the related Realized Loss was allocated to such Class;
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(viii) Eighth, to the Class C-1 Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount of
such Class;
(ix) Ninth, to the Class C-1 Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount with respect to Loan Group 1 less the
portion of such Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Principal Amount thereof is reduced
to zero;
(x) Tenth, to the Class C-1 Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount with respect to Loan Group 1 less the portion of such
Principal Distribution Amount distributed pursuant to all prior clauses,
an amount equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class, plus interest thereon at the
Certificate Interest Rate for such Class compounded monthly from the date
the related Realized Loss was allocated to such Class;
(xi) Eleventh, to the Class D Certificates in respect of interest,
up to an amount equal to the Interest Distribution Amount of such Class;
(xii) Twelfth, to the Class D Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount with respect to Loan Group 1 less the
portion of such Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Principal Amount thereof is reduced
to zero;
(xiii) Thirteenth, to the Class D Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount with respect to Loan Group 1 less the portion of such
Principal Distribution Amount distributed pursuant to all prior clauses,
an amount equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class, plus interest thereon at the
Certificate Interest Rate for such Class compounded monthly from the date
the related Realized Loss was allocated to such Class;
(xiv) Fourteenth, to the Class E Certificates in respect of
interest, up to an amount equal to the Interest Distribution Amount of
such Class;
(xv) Fifteenth, to the Class E Certificates in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount with respect to Loan Group 1 less the
portion of such Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Principal Amount thereof is reduced
to zero;
(xvi) Sixteenth, to the Class E Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount with respect to Loan Group 1 less the portion of such
Principal Distribution Amount
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distributed pursuant to all prior clauses, an amount equal to the
aggregate of such unreimbursed Realized Losses previously allocated to
such Class, plus interest thereon at the Certificate Interest Rate for
such Class compounded monthly from the date the related Realized Loss was
allocated to such Class;
(xvii) Seventeenth, to the Class F Certificates in respect of
interest, up to an amount equal to the Interest Distribution Amount of
such Class;
(xviii) Eighteenth, to the Class F Certificates in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount with respect to Loan Group 1 less the
portion of such Principal Distribution Amount distributed pursuant to all
prior clauses, until the Certificate Principal Amount thereof is reduced
to zero;
(xix) Nineteenth, to the Class F Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount with respect to Loan Group 1 less the portion of such
Principal Distribution Amount distributed pursuant to all prior clauses,
an amount equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class, plus interest thereon at the
Certificate Interest Rate for such Class compounded monthly from the date
the related Realized Loss was allocated to such Class; and
(xx) Twentieth, to the Class R Certificates, any amounts relating to
the Group 1 Loans remaining in the Upper-Tier Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring
on and after the Cross-over Date, regardless of the allocation of principal
payments described in priorities Second, Third and Fourth above, an amount equal
to the aggregate of the Principal Distribution Amount will be distributed,
first, to the Class A-1 Certificates, Class A-2 Certificates and Class A-3
Certificates, pro rata, based on their respective Certificate Principal Amounts,
in reduction of their respective Certificate Principal Amounts, until the
Certificate Principal Amount of each such Class is reduced to zero, and, second,
to the Class A-1 Certificates, Class A-2 Certificates and Class A-3 Certificates
for unreimbursed amounts of Realized Losses previously allocated to such
Classes, plus interest thereon at the Certificate Interest Rate for such Classes
compounded monthly from the date the Realized Loss was allocated to such
Classes, pro rata, in accordance with the amount of such unreimbursed Realized
Losses so allocated.
On each Distribution Date, Holders of each Class of Group 2
Certificates (and the Class R Certificates) shall receive distributions from
amounts on deposit in the Upper-Tier Distribution Account in respect of interest
and principal, to the extent of Available Funds with respect to the Group 2 Loan
in the amounts and in the priority set forth below:
(i) First, (a) through and including the Distribution Date in July
2004, pro rata, (I) to the Class C-2 Certificates, in respect of interest, up to
an amount equal to the Interest Distribution Amount of such Class and (II) to
the Class X-2 Certificates, in respect of
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interest, up to an amount equal to the Interest Distribution Amount of such
Class and (b) after the Distribution Date in July 2004, to the Class C-2
Certificates, in respect of interest, up to an amount equal to the Interest
Distribution Amount of such Class;
(ii) Second, to the Class C-2 Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the Principal
Distribution Amount with respect to Loan Group 2, until the Certificate
Principal Amount thereof is reduced to zero;
(iii) Third, to the Class C-2 Certificates for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount with respect to Loan Group 2 less the portion of such
Principal Distribution Amount distributed as described in clause Second above,
an amount equal to the aggregate of such unreimbursed Realized Losses previously
allocated to such Class, plus interest thereon at the Certificate Interest Rate
for such Class compounded monthly from the date the related Realized Loss was
allocated to such Class; and
(iv) Fourth, to the Class R Certificates, any amounts relating to
Group 2 Loan remaining in the Upper-Tier Distribution Account.
All references to "pro rata" in the preceding clauses with respect
to interest shall mean pro rata based on the amount distributable pursuant to
such clauses, with respect to distributions of principal other than in
reimbursement of Realized Losses shall mean pro rata based on Certificate
Principal Amount, and with respect to distributions in reimbursement of Realized
Losses shall mean pro rata based on the amount of unreimbursed Realized Losses
previously allocated to the applicable Classes.
(c) On any Distribution Date, Prepayment Premiums collected during
the related Collection Period shall be distributed on the related Distribution
Date to the holders of each Class of Group 1 Certificates entitled to
distributions of principal on such Distribution Date in an aggregate amount up
to the product of (a) such Prepayment Premium and (b) the Discount Rate Fraction
for such Class of Certificates. The "Discount Rate Fraction" is a fraction (a)
the numerator of which is equal to the excess of (x) the Certificate Interest
Rate for such Class of Certificates over (y) the relevant Discount Rate and (b)
the denominator of which is equal to the excess of (x) the Mortgage Rate of the
related Mortgage Loan over (y) the relevant Discount Rate; provided, that if
there are two or more of such Classes of Certificates entitled to principal
distributions on such Distribution Date, the Certificate Interest Rate for
purposes of clause (a)(x) above will be the Certificate Interest Rate for the
Class with the earlier payment priority and the portion of the Prepayment
Premium calculated as described above, will be allocated among such Classes of
Certificates entitled to principal distributions on a pro rata basis in
accordance with the relative amount of principal distributions made thereto on
such Distribution Date. The portion of the Prepayment Premium remaining after
the payment of the amount calculated as described above shall be distributed to
the holders of the Class X-1 Certificates.
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(d) On each Distribution Date the Trustee shall withdraw the amount
of any Net Default Interest received in the related Collection Period from the
Class T Distribution Account and shall distribute such amount to the holders of
the Class T Certificates.
(e) On each Distribution Date, any Excess Interest received during
the related Collection Period shall be distributed to holders of Certificates as
follows: (i) any Excess Interest received with respect to the Arden Loan and the
Worldwide Fixed Components, to the holders of the Class A-2, Class A-3, Class B,
Class C-1, Class D, Class E and Class F Certificates, pro rata, based on their
initial Certificate Principal Amounts, (ii) any Excess Interest received with
respect to the Xxxxxxxx Loan, the Xxxxx Xxxxxx Loan and the Valley View Loan, to
the holders of the Class A-3, Class B, Class C-1, Class D, Class E and Class F
Certificates, pro rata, based on their initial Certificate Principal Amounts,
(iii) any Excess Interest received with respect to the Sun Communities Loan, to
the holders of the Class C-1, Class D, Class E and Class F Certificates, pro
rata, based on their initial Certificate Principal Amounts, (v) any Excess
Interest received with respect to the Courtyard Loan, to the holders of the
Class D, Class E and Class F Certificates, pro rata, based on their initial
Certificate Principal Amounts, and (vi) any Excess Interest received with
respect to the Worldwide Plaza LIBOR Component, to the holders of the Class C-2
Certificates.
(f) The Certificate Principal Amount of each Class of P&I
Certificates entitled to distributions of principal will be reduced without
distribution on any Distribution Date, as a write-off, to the extent of any
Realized Loss allocated to such Class on such Distribution Date. Any Group 1
Realized Losses will be applied to the Classes of Group 1 Certificates in the
following order, until each is reduced to zero: first, to the Class F
Certificates; second, to the Class E Certificates; third, to the Class D
Certificates; fourth, to the Class C-1 Certificates; fifth, to the Class B
Certificates and, finally, pro rata, to the Class A-1, Class A-2 and Class A-3
Certificates, based on their respective Certificate Principal Amounts. Any Group
2 Realized Losses to be applied on any Distribution Date will be applied
directly to the Class C-2 Certificates until the Certificate Principal Amount
thereof has been reduced to zero. Any amounts recovered in respect of any
amounts previously written off as Realized Losses will be distributed to the
Classes of Certificates described above in the reverse order of allocation of
Realized Losses thereto.
(g) Shortfalls in Available Funds resulting from additional
servicing compensation other than the Servicing Fee and Additional Trust Fund
Expenses shall be allocated to each Class of Certificates in the following
order, until each is reduced to zero: first, to the Class F Certificates;
second, to the Class E Certificates; third, to the Class D Certificates; fourth,
pro rata, to the Class C-1 and Class C-2 Certificates, based on their respective
Certificate Principal Amounts; fifth, to the Class B Certificates and, finally,
pro rata, to the Class A-1, Class A-2 and Class A-3 Certificates, based on their
respective Certificate Principal Amounts.
(h) Excess Prepayment Interest Shortfalls with respect to Loan Group
1 will be allocated to each Class of Group 1 Certificates, pro rata, based upon
the amount of interest which would have otherwise been distributed to each such
Class. Excess Prepayment Interest
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Shortfalls with respect to the Group 2 Loan will be allocated to each Class of
Group 2 Certificates, pro rata, based upon the amount of interest that would
otherwise be distributable to each such Class.
(i) All amounts distributable, or reductions allocable on account of
Realized Losses, to a Class of Certificates pursuant to this Section 4.01 on
each Distribution Date shall be allocated pro rata among the outstanding
Certificates in each such Class based on their respective Percentage Interests.
Such distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
(a) by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity located in the United States and
having appropriate facilities therefor, if such Certificateholder provides the
Trustee with wiring instructions no less than five Business Days prior to the
related Record Date, or otherwise (b) by check mailed to such Certificateholder.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate Registrar
acting as such agent) that is specified in the notice to Certificateholders of
such final distribution.
(j) Except as otherwise provided in Section 9.01 with respect to an
Anticipated Termination Date, the Trustee shall, no later than the fifteenth day
of the month in the month preceding the month in which the final distribution
with respect to any Class of Certificates is expected to be made, mail to each
Holder of such Class of Certificates, on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon information
previously provided to it 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
Trustee therein specified, and
(B) if such final distribution is made on such Distribution
Date, no interest shall accrue on such Certificate, or
on the Related Lower-Tier Regular Interests from and
after such Distribution Date;
provided, however, that the Class T, Class R and Class LR Certificates shall
remain outstanding until there is no other Class of Certificates outstanding.
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
in trust for the benefit of the appropriate non-tendering Holder or Holders. If
any Certificates as to which notice has been given pursuant to this Section
4.01(j) 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 to receive the final distribution with respect thereto. If within
one year after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may,
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directly or through an agent, take appropriate steps to contact the remaining
non-tendering Certificateholders concerning surrender of their Certificates. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee hereunder and the transfer of such amounts to a successor Trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class R Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust hereunder or by the Trustee as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with this Section 4.01(j). Any funds not
distributed on such Distribution Date shall be set aside and held uninvested in
trust for the benefit of Certificateholders not presenting and surrendering
their Certificates in the aforesaid manner.
(k) Appraisal Reduction Amounts with respect to the Group 1 Loans
will be allocated to the Group 1 Certificates in the following order of
priority: first, to the Class F Certificates, until the Certificate Principal
Amount thereof has been reduced to zero; second, to the Class E Certificates,
until the Certificate Principal Amount thereof has been reduced to zero; third,
to the Class D Certificates, until the Certificate Principal Amount thereof has
been reduced to zero; fourth, to the Class C-1 Certificates, until the
Certificate Principal Amount thereof has been reduced to zero; and finally to
the Class B Certificates, until the Certificate Principal Amount thereof has
been reduced to zero. Appraisal Reduction Amounts with respect to the Worldwide
Plaza LIBOR Component will be allocated to the Class C-2 Certificates.
SECTION 4.02. Statements to Certificateholders; Available
Information; Information Furnished to Financial Market
Publisher.
(a) On each Distribution Date, the Trustee shall, based on
information provided by the Master Servicer or provided by the Special Servicer
to the Master Servicer (with respect to a Specially Serviced Mortgage Loan, an
REO Property or the servicing responsibilities of the Special Servicer set forth
herein including the Special Servicer's obligation to make Advances) and subject
to receipt thereof, prepare and forward by mail to each Holder of a Certificate,
with copies to the Depositor, the Paying Agent, the Master Servicer, the Special
Servicer, the Underwriter, the Rating Agencies, prospective investors in the
Certificates (upon request) and up to three market reporting services designated
by the Depositor, a statement as to such distribution (a "Monthly Distribution
Statement") setting forth the information set forth on Exhibit H hereto, and
including among other things, for each Class, as applicable:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates (other than
the Class R and Class LR Certificates) applied to reduce the respective
Certificate Principal Amounts thereof;
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(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates allocable
to (A) the Interest Accrual Amount less any Excess Prepayment Interest
Shortfalls and/or (B) Prepayment Premiums;
(iii) the aggregate Certificate Principal Amount or Notional Amount,
as the case may be, of each Class of Certificates, before and after giving
effect to the distributions made on such Distribution Date, separately
identifying any reduction in the aggregate Certificate Principal Amount
(or, if applicable, the aggregate Notional Amount) of each such Class due
to Realized Losses, Additional Trust Fund Expenses and/or and any other
shortfalls in Available Funds set forth in Section 4.01(g);
(iv) the Certificate Interest Rate applicable to each Class of
Certificates for such Distribution Date;
(v) the number of outstanding Mortgage Loans and the Stated
Principal Balance of each Mortgage Loan and Worldwide Component at the
close of business on the related Due Date;
(vi) the number and aggregate Stated Principal Balance of Mortgage
Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent
90 days or more, (D) that are Specially Serviced Mortgage Loans that are
not delinquent, or (E) as to which foreclosure proceedings have been
commenced;
(vii) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the preceding calendar
month, the scheduled principal balance and the Stated Principal Balance of
such Mortgage Loan as of the date such Mortgaged Property became an REO
Property;
(viii) as to any Mortgage Loan repurchased by the Depositor or the
Mortgage Loan Seller or otherwise liquidated or disposed of during the
related Collection Period, (A) the Loan Number of the related Mortgage
Loan and (B) the amount of proceeds of any repurchase of a Mortgage Loan,
Liquidation Proceeds and/or other amounts, if any, received thereon during
the related Collection Period and the portion thereof included in the
Available Funds for such Distribution Date;
(ix) with respect to any REO Property included in the Trust Fund at
the close of business on the related Due Date (A) the Loan Number of the
related Mortgage Loan, (B) the value of such REO Property based on the
most recent appraisal or valuation, and (C) the aggregate amount of Net
Income and other revenues collected by the Special Servicer with respect
to such REO Property during the related Collection Period and the portion
thereof included in the Available Funds for such Distribution Date;
(x) with respect to any REO Property sold or otherwise disposed of
during the related Collection Period and for which a Final Recovery
Determination has been
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made, (A) the Loan Number of the related Mortgage Loan, (B) the Realized
Loss attributable to such Mortgage Loan, (C) the amount of sale proceeds
and other amounts, if any, received in respect of such REO Property during
the related Collection Period and the portion thereof included in the
Available Funds for such Distribution Date and (D) the date of the Final
Recovery Determination;
(xi) the aggregate amount of Principal Prepayments (other than
Liquidation Proceeds and Insurance Proceeds) made during the related
Collection Period and any Excess Prepayment Interest Shortfall for such
Distribution Date;
(xii) the aggregate amount of Property Advances and P&I Advances
outstanding (net of reimbursed Advances) which have been made by the
Master Servicer, the Special Servicer the Trustee, and the Fiscal Agent;
(xiii) the aggregate amount of Servicing Fees, Special Servicing
Fees, Liquidation Fees, Special Servicer Rehabilitation Fees and other
servicing or special compensation retained by or paid to the Master
Servicer and the Special Servicer during the related Collection
Period;
(xiv) the amount of any Appraisal Reduction Amounts allocated during
the related Collection Period on a loan-by-loan basis; the total Appraisal
Reduction Amounts allocated during the related Collection Period; and the
total Appraisal Reduction Amounts as of such Distribution Date on a
loan-by-loan basis; and
(xv) the amount of Realized Losses, Additional Trust Fund Expenses,
Interest Shortfalls, if any, with respect to the Mortgage Loans and any
other shortfalls in Available Funds set forth in Section 4.01(g) incurred
during the related Collection Period and in the aggregate for all prior
Collection Periods (except to the extent reimbursed or paid).
In the case of information furnished pursuant to subclauses (i),
(ii) and (xi) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per $1,000 of
original Certificate Principal Amount or Notional Amount, as the case may be.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate (except for a Class R or Class LR
Certificate) a statement containing the information set forth in subclauses (i)
and (ii) above, aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder 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 held by persons other than
holders exempted from the reporting requirements and information regarding the
expenses of the Trust Fund. Such obligation of the Trustee shall be deemed to
have been satisfied to the extent that it provided
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substantially comparable information pursuant to any requirements of the Code as
from time to time in force.
On each Distribution Date, the Trustee shall forward to each Holder
of a Class R or Class LR Certificate a copy of the reports forwarded to the
other Certificateholders on such Distribution Date and a statement setting forth
the amounts, if any, actually distributed with respect to the Class R or Class
LR Certificates on such Distribution Date. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time to
time in force.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Class R or Class LR Certificate a statement
containing the information provided pursuant to the previous paragraph
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time to
time in force.
(b) On each Distribution Date, the Trustee shall deliver or cause to
be delivered by first class mail to each Certificateholder, each prospective
investor in a Certificate (upon request), the Depositor, the Master Servicer,
the Special Servicer, the Underwriter, and each Rating Agency a report
containing information regarding the Mortgage Loans as of the end of the related
Collection Period (after giving effect to Principal Prepayments and other
collections of principal required to be distributed on such Distribution Date),
which report shall contain substantially the categories of information regarding
the Mortgage Loans set forth in the Prospectus under the caption "Mortgage Pool
Characteristics--Certain Characteristics of the Mortgage Loans" (calculated,
where applicable, on the basis of the most recent relevant information provided
by the Borrowers 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 such information shall be presented in a tabular format
substantially similar to the format in the Prospectus and shall include a
loan-by-loan listing (in descending balance order) showing loan name, property
type, location, unpaid principal balance, Mortgage Rate, paid through date,
maturity date, net interest portion of the Scheduled Payment, principal portion
of the Scheduled Payment and any Prepayment Premium. Such loan-by loan listing
shall be made available electronically in the form of the standard CSSA loan
file and standard CSSA property file; provided, however, that the Trustee will
provide Certificateholders with a written copy of such listing upon written
request.
(c) On each Distribution Date, the Trustee shall deliver or shall
cause to be delivered by first class mail to each Certificateholder, each
prospective investor in a Certificate (upon request), Beneficial Owner (if
known), the Depositor, the Underwriter and each Rating Agency a copy of the
Comparative Financial Status Report, the Delinquent Loan Status Report, the
Historical Loss Estimate Report, the Historical Loan Modification Report, the
REO Status Report and a Watch List (indicating those Mortgage Loans that the
Master Servicer has
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determined are in jeopardy of becoming Specially Serviced Mortgage Loans)
provided by the Master Servicer to the Trustee pursuant to Section 3.13(c) and
3.13(e) on the Master Servicer Remittance Date. The information that pertains to
Specially Serviced Mortgage Loans and REO Properties reflected in such reports
shall be based solely upon the reports delivered by the Special Servicer to the
Master Servicer at least one Business Day prior to the related Master Servicer
Remittance Date. 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 Borrower or third party that is included in any reports,
statements, materials or information prepared or provided by the Master
Servicer, the Special Servicer or the Trustee, as applicable, (ii) the Trustee
shall not be responsible for the accuracy or completeness of any information
supplied to it by the Master Servicer or Special Servicer that is included in
any reports, statements, materials or information prepared or provided by the
Master Servicer or Special Servicer, as applicable, and (iii) the Trustee shall
be entitled to conclusively rely upon the Master Servicer's reports and the
Special Servicer's reports without any duty or obligation to recompute, verify
or re-evaluate any of the amounts or other information stated therein.
(d) Upon request, the Trustee shall deliver a copy of each Operating
Statement Analysis report and NOI Adjustment Worksheet that it receives from the
Master Servicer and Special Servicer to the Depositor, the Underwriter, the
Special Servicer and to any Certificateholder. In addition, the Trustee shall
deliver a copy of each Operating Statement Analysis report and NOI Adjustment
Worksheet that it receives from the Master Servicer and Special Servicer to each
Rating Agency and on September 30 of each year, commencing September 30, 1998,
the Trustee shall deliver copies of the Operating Statement Analysis for each
Mortgaged Property or REO Property that were prepared over the course of the
previous four fiscal quarters (or with respect to September 1998, all of such
statements prepared since the Closing Date) to each Rating Agency.
(e) The Trustee shall make available at its offices, during normal
business hours, upon not less than two Business Day's prior notice, for review
by any Certificateholder, any prospective investor in a Certificate, the
Depositor, the Master Servicer, the Special Servicer, either Rating Agency, and
any other Person to whom the Depositor believes such disclosure is appropriate,
originals or copies of documents relating to the Mortgage Loans and any related
REO Properties to the extent in its possession, including, without limitation,
the following items (except to the extent prohibited by applicable law or by the
terms of any of the Mortgage Documents): (i) this Agreement and any amendments
thereto; (ii) all Monthly Distribution Statements delivered to the
Certificateholders since the Closing Date; (iii) all annual Officers'
Certificates and all accountants' reports delivered by the Master Servicer or
Special Servicer to the Trustee since the Closing Date regarding compliance with
the relevant agreements; (iv) the most recent property inspection report
prepared by or on behalf of the Master Servicer or the Special Servicer in
respect of each Mortgaged Property; (v) the most recent annual (or more
frequent, if available) operating statements, rent rolls (to the extent such
rent rolls have been made available by the related Borrower) and/or lease
summaries and retail sales information, if any, collected by or on behalf of the
Master Servicer or the Special Servicer in respect to each Mortgaged Property;
(vi) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Master Servicer and/or the
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Special Servicer; (vii) any and all Officers' Certificates and other evidence
delivered to or by the Trustee to support the Master Servicer's, the Trustee's
or the Fiscal Agent's, as the case may be, determination that any Advance, if
made, would be a Nonrecoverable Advance; (viii) all Special Event Reports; and
(ix) any other materials relating in any manner to the Mortgage Loans, the
Mortgaged Properties (including REO Properties) or the Certificates and not
otherwise required to be provided hereunder that are in the possession of the
Trustee. Copies of any and all of the foregoing items will be available from the
Trustee upon request. The Trustee will be permitted to require payment by the
requesting party (other than a Rating Agency) of a sum sufficient to cover the
reasonable costs and expenses of making such information available and providing
any copies thereof. The Trustee's obligation under this Section 4.02(e) to make
available any document is subject to the Trustee's receipt of such document.
(f) On each Distribution Date, the Trustee shall make available to
the Financial Market Publisher and the Underwriter, using the format and media
mutually agreed upon by the Trustee, the Financial Market Publisher and the
Underwriter, the following information regarding each Mortgage Loan and any
other information reasonably requested by the Underwriter and available to the
Trustee:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
In addition, on or within two Business Days following each
Distribution Date, the Trustee shall make (x) certain information contained in
the Monthly Distribution Statement available to Certificateholders through its
ASAP System by Certificateholders dialing telephone number (000) 000-0000 and
requesting statement No. 283.
(g) The Trustee shall only be obligated to deliver or make available
the statements, reports and information contemplated by Sections 4.02(a) through
4.02(f) to the extent it receives the necessary underlying information from the
Master Servicer or the Special 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 and, if the Master
Servicer is not the Special Servicer, the Master Servicer shall not be liable
for any failure of the Special Servicer to provide 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 Borrower and the failure of the Trustee, the Master Servicer
or the Special Servicer to disseminate information for such reason shall not be
a breach hereof.
SECTION 4.03. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying
Agent shall comply with all federal withholding requirements with respect to
payments to
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Certificateholders of interest or original issue discount that the Paying Agent
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Certificateholder that is a non-U.S.
Person that has furnished or caused to be furnished (i) an effective Form W-8 or
Form W-9 or an acceptable substitute form or a successor form and who is not a
"10-percent shareholder" within the meaning of Code Section 871(h)(3)(B) or a
"controlled foreign corporation" described in Code Section 881(c)(3)(C) with
respect to the Trust Fund or the Depositor, or (ii) an effective Form 4224 or an
acceptable substitute form or a successor form. In the event the Paying Agent or
its agent withholds any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
SECTION 4.04. REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC and the
Lower-Tier REMIC shall constitute, and that the affairs of each of the
Upper-Tier REMIC and the Lower-Tier REMIC shall be conducted so as to qualify it
as, a "real estate mortgage investment conduit" as defined in, and in accordance
with, the REMIC Provisions, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Trustee
shall, to the extent permitted by applicable law, act as agent, and is hereby
appointed to act as agent, of each of the Upper-Tier REMIC and the Lower-Tier
REMIC and shall on behalf of each of the Upper-Tier REMIC and the Lower-Tier
REMIC: (i) prepare, sign and file, or cause to be prepared and filed, all
required Tax Returns for each of the Upper-Tier REMIC and the Lower-Tier REMIC,
using a calendar year as the taxable year for each of the Upper-Tier REMIC and
the Lower-Tier REMIC when and as required by the REMIC Provisions and other
applicable federal, state or local income tax laws; (ii) make an election, on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC, to be treated
as a REMIC on Form 1066 for its first taxable year, in accordance with the REMIC
Provisions; (iii) prepare and forward, or cause to be prepared and forwarded, to
the Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code and Section
4.07; (iv) if the filing or distribution of any documents of an administrative
nature not addressed in clauses (i) through (iii) of this Section 4.05(a) is
then required by the REMIC Provisions in order to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the Person
that the holders of the Certificates may contact for tax information relating
thereto (and the Trustee shall act as the representative of each of the
Upper-Tier REMIC and the Lower-Tier
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REMIC for this purpose), together with such additional information as may be
required by such Form, and shall update such information at the time or times
and in the manner required by the Code (and the Depositor agrees within 10
Business Days of the Closing Date to provide any information reasonably
requested by the Master Servicer or the Trustee and necessary to make such
filing); and (vi) maintain such records relating to each of the Upper-Tier REMIC
and the Lower-Tier REMIC as may be necessary to prepare the foregoing returns,
schedules, statements or information, such records, for federal income tax
purposes, to be maintained on a calendar year and on an accrual basis. The
Holder of the largest Percentage Interest in the Class R or Class LR
Certificates shall be the tax matters person of the Upper-Tier REMIC or the
Lower-Tier REMIC, respectively, pursuant to Treasury Regulations Section
1.860F-4(d). If more than one Holder should hold an equal Percentage Interest in
the Class R or Class LR Certificates larger than that held by any other Holder,
the first such Holder to have acquired such Class R or Class LR Certificates
shall be such tax matters person. The Trustee shall act as attorney-in-fact and
agent for the tax matters person of each of the Upper-Tier REMIC and Lower-Tier
REMIC, and each Holder of a Percentage Interest in the Class R or Class LR
Certificates, by acceptance hereof, is deemed to have consented to the Trustee's
appointment in such capacity and agrees to execute any documents required to
give effect thereto, and any fees and expenses incurred by the Trustee in
connection with any audit or administrative or judicial proceeding shall be paid
by the Trust Fund. The Trustee shall not intentionally take any action or
intentionally omit to take any action if, in taking or omitting to take such
action, the Trustee knows that such action or omission (as the case may be)
would cause the termination of the REMIC status of the Upper-Tier REMIC or the
Lower-Tier REMIC or the imposition of tax on the Upper-Tier REMIC or the
Lower-Tier REMIC (other than a tax on income expressly permitted or contemplated
to be received by the terms of this Agreement). Notwithstanding any provision of
this paragraph to the contrary, the Trustee shall not be required to take any
action that the Trustee in good faith believes to be inconsistent with any other
provision of this Agreement, nor shall the Trustee be deemed in violation of
this paragraph if it takes any action expressly required or authorized by any
other provision of this Agreement, and the Trustee shall have no responsibility
or liability with respect to any act or omission of the Depositor or the Master
Servicer which does not enable the Trustee to comply with any of clauses (i)
through (vi) of the fifth preceding sentence or which results in any action
contemplated by clauses (i) through (iii) of the next succeeding sentence. In
this regard the Trustee shall (i) exercise reasonable care not to allow the
occurrence of any "prohibited transactions" within the meaning of Code Section
860F(a), unless the party seeking such action shall have delivered to the
Trustee an Opinion of Counsel (at such party's expense) that such occurrence
would not (A) result in a taxable gain, (B) otherwise subject the Upper-Tier
REMIC or Lower-Tier REMIC to tax (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property), or (C) cause any of
the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC; and (ii)
exercise reasonable care not to allow any of the Trust REMICs to receive income
from the performance of services or from assets not permitted under the REMIC
Provisions to be held by a REMIC (provided, however, that the receipt of any
income expressly permitted or contemplated by the terms of this Agreement shall
not be deemed to violate this clause) and (iii) not permit the creation of any
"interests," within the meaning of the REMIC Provisions, in the Upper-Tier REMIC
other than the Regular Certificates and the Class R Certificates or in the
Lower-Tier REMIC other than the Lower-
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Tier Regular Interests and the Class LR Certificates. None of the Master
Servicer, the Special Servicer or the Depositor shall be responsible or liable
for any failure by the Trustee to comply with the provisions of this Section
4.04. The Depositor, the Master Servicer and the Special Servicer shall
cooperate in a timely manner with the Trustee in supplying any information
within the Depositor's, the Master Servicer's or the Special Servicer's control
(other than any confidential information) that is reasonably necessary to enable
the Trustee to perform its duties under this Section 4.04.
(b) The tax matter person, the Master Servicer and the Special
Servicer each hereby covenants to perform its duties hereunder so as to maintain
the status of the Trust REMICs as REMICs under the REMIC Provisions (and the
Master Servicer and the Special Servicer shall assist the Trustee to the extent
reasonably requested by the Trustee and to the extent of information within the
Master Servicer's or the Special Servicer's possession or control). None of the
tax matters person, the Master Servicer or the Special Servicer shall knowingly
take (or cause the applicable REMIC to take) any action or fail to take (or fail
to cause to be taken) any action within their respective control and the scope
of their respective duties under this Agreement that, under the REMIC
provisions, if taken or not taken, as the case may be, would (i) endanger the
status of either Trust REMIC as a REMIC, or (ii) result in the imposition of a
tax upon either Trust REMIC (including, but not limited to the tax on prohibited
transactions as defined in Section 860F(a) of the Code) (any such endangerment
or imposition, an "Adverse REMIC Event") unless the Trustee has received an
Opinion of Counsel (at the expense of the party requesting such action) to the
effect that the contemplated action will not result in an Adverse REMIC Event.
In addition, prior to taking any action with respect to either Trust REMIC, or
causing either Trust REMIC to take any action, that is not expressly permitted
under the terms of this Agreement, the tax matters person, the Master Servicer
and the Special Servicer shall consult with the Trustee or its designee, in
writing, with respect to whether such action would cause an Adverse REMIC Event
to occur.
(c) The following assumptions are to be used for purposes of
determining the anticipated payments of principal and interest for calculating
the original yield to maturity and original issue discount with respect to the
Regular Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans will prepay in accordance with
the Prepayment Assumption; (ii) none of the Master Servicer, the Depositor and
the Class LR Certificateholders will exercise the right described in Section
9.01 of this Agreement to cause early termination of the Trust Fund; and (iii)
no Mortgage Loan is repurchased by the Mortgage Loan Seller or the Depositor
pursuant to Article II hereof.
SECTION 4.05. Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or
assessments, additional amounts or additions to tax, is imposed on the
Upper-Tier REMIC or Lower-Tier REMIC, such tax shall be charged against amounts
otherwise distributable to the Holders of the Certificates; provided, that any
taxes imposed on any net income from foreclosure property pursuant to Code
Section 860G(d) or any similar tax imposed by a state or local jurisdiction
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shall instead be treated as an expense of the related REO Property in
determining Net REO Proceeds with respect to the REO Property (and until such
taxes are paid, the Special Servicer from time to time shall withdraw from the
REO Account and transfer to the Trustee amounts reasonably determined by the
Trustee to be necessary to pay such taxes, which the Trustee shall maintain in a
separate, non-interest-bearing account, and the Trustee shall deposit in the
Collection Account the excess determined by the Trustee from time to time of the
amount in such account over the amount necessary to pay such taxes) and shall be
paid therefrom; provided that any such tax imposed on net income from
foreclosure property that exceeds the amount in any such reserve shall be
retained from Available Funds as provided in Section 3.06(vi) and the next
sentence. Except as provided in the preceding sentence, the Trustee is hereby
authorized to and shall retain or cause to be retained from the Collection
Account in determining the amount of Available Funds sufficient funds to pay or
provide for the payment of, and to actually pay, such tax as is legally owed by
the Upper-Tier REMIC or Lower-Tier REMIC (but such authorization shall not
prevent the Trustee from contesting, at the expense of the Trust Fund, any such
tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Trustee is
hereby authorized to and shall segregate or cause to be segregated, into a
separate non-interest bearing account, (i) the net income from any "prohibited
transaction" under Code Section 860F(a) or (ii) the amount of any contribution
to the Upper-Tier REMIC or Lower-Tier REMIC after the Startup Day that is
subject to tax under Code Section 860G(c) and use such income or amount, to the
extent necessary, to pay such tax (and return the balance thereof, if any, to
the Lower-Tier Distribution Account or the Upper-Tier Distribution Account, as
the case may be). To the extent that any such tax is paid to the Internal
Revenue Service, the Trustee shall retain an equal amount from future amounts
otherwise distributable to the Holders of the Class R or the Class LR
Certificates, as the case may be, and shall distribute such retained amounts to
the Holders of Regular Certificates or to the Trustee in respect of the
Lower-Tier Regular Interests, as applicable, until they are fully reimbursed and
then to the Holders of the Class R Certificates or the Class LR Certificates, as
applicable. Neither the Master Servicer, the Special Servicer nor the Trustee
shall be responsible for any taxes imposed on the Upper-Tier REMIC or Lower-Tier
REMIC except to the extent such tax is attributable to a breach of a
representation or warranty of the Master Servicer, the Special Servicer or the
Trustee or an act or omission of the Master Servicer, the Special Servicer or
the Trustee in contravention of this Agreement in both cases, provided, further,
that such breach, act or omission could result in liability under Section 6.03,
in the case of the Master Servicer or Section 4.04 or 8.01, in the case of the
Trustee. Notwithstanding anything in this Agreement to the contrary, in each
such case, the Master Servicer or the Special Servicer shall not be responsible
for Trustee's breaches, acts or omissions, and the Trustee shall not be
responsible for the breaches, acts or omissions of the Master Servicer or the
Special Servicer.
SECTION 4.06. Remittances; P&I Advances.
(a) "Applicable Scheduled Payment" shall mean, for any Mortgage Loan
with respect to any month, (A) if such Mortgage Loan has been extended (other
than pursuant to Section 3.27) in accordance with the terms and conditions
otherwise set forth in this Agreement, the lesser of (1) the Extended Scheduled
Payment and (2) the Scheduled Payment
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on the Mortgage Loan prior to such extensions, and (B) if such Mortgage Loan is
not described by the preceding clause (A) (including any such Mortgage Loan as
to which the related Mortgaged Property has become an REO Property), the
Scheduled Payment; provided, however, that for purposes of calculating the
amount of any P&I Advance required to be made by the Master Servicer, the
Trustee or the Fiscal Agent, notwithstanding the amount of such Applicable
Scheduled Payment, interest shall be calculated at the Net Mortgage Rate plus
the portion of the Trustee Fee related to such Mortgage Loan; and provided
further that for purposes of determining the amount of any P&I Advance, the
Scheduled Payment shall be as reduced pursuant to any modification of a Mortgage
Loan pursuant to Section 3.27.
(b) On the Master Servicer Remittance Date immediately preceding
each Distribution Date, the Master Servicer (or the Trustee with respect to item
(iv) below) shall:
(i) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to the Prepayment Premiums received by the
Master Servicer in the Collection Period preceding such Distribution
Date;
(ii) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to the Available Funds (other than the
amounts referred to in clauses (iii) and (iv) below);
(iii) make a P&I Advance, by deposit into the Lower-Tier Distribution
Account, in an amount equal to the sum of the Applicable Scheduled
Payments for each Mortgage Loan to the extent such amounts were not
received on such Mortgage Loan prior to 10:00 A.M. (New York City
time), on the Master Servicer Remittance Date (and therefore are not
included in the remittance described in the preceding clause (ii));
(iv) if such Master Servicer Remittance Date occurs in March, remit to
the Trustee for deposit in the Lower-Tier Distribution Account by
withdrawal from the Interest Reserve Account an amount equal to the
amounts described in clause (iii) of the definition of Available
Funds.
(c) The Master Servicer shall not be required or permitted to make
an advance for Excess Interest, Default Interest, Prepayment Premiums or Balloon
Payments. The amount required to be advanced in respect of Applicable Scheduled
Payments on Mortgage Loans that have been subject to an Appraisal Reduction
Event will equal (i) the amount required to be advanced by the Master Servicer,
without giving effect to such Appraisal Reduction Amounts less (ii) an amount
equal to the product of (x) the amount required to be advanced by the Master
Servicer in respect to delinquent payments of interest without giving effect to
such Appraisal Reduction Amounts, and (y) a fraction, the numerator of which is
the Appraisal Reduction Amount with respect to such Mortgage Loan and the
denominator of which is the Stated Principal Balance as of the last day of the
related Collection Period.
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(d) Any amount advanced by the Master Servicer pursuant to Section
4.06(b)(iii) shall constitute a P&I Advance for all purposes of this Agreement
and the Master Servicer shall be entitled to reimbursement (with interest at the
Advance Rate) thereof to the full extent as otherwise set forth in this
Agreement.
(e) If as of 11:00 A.M., New York City time, on any Distribution
Date the Master Servicer shall not have made the P&I Advance required to have
been made on the related Master Servicer Remittance Date pursuant to Section
4.06(b)(iii), the Trustee shall immediately notify the Fiscal Agent by telephone
promptly confirmed in writing, and the Trustee shall no later than 1:00 p.m.,
New York City time, on such Business Day deposit into the Lower-Tier
Distribution Account in immediately available funds an amount equal to the P&I
Advances otherwise required to have been made by the Master Servicer. If the
Trustee fails to make any P&I Advance required to be made under this Section
4.06, the Fiscal Agent shall make such P&I Advance not later than 2:00 p.m., New
York City time, on such Business Day and, thereby, the Trustee shall not be in
default under this Agreement.
(f) None of the Master Servicer, the Trustee or the Fiscal Agent
shall be obligated to make a P&I Advance as to any Scheduled Payment or Extended
Scheduled Payment on any date on which a P&I Advance is otherwise required to be
made by this Section 4.06 if the Master Servicer, the Trustee or Fiscal Agent,
as applicable, determines that such advance will be a Nonrecoverable Advance.
The Master Servicer shall be required to provide notice to the Trustee and the
Fiscal Agent on or prior to the Master Servicer Remittance Date of any such
non-recoverability determination made on or prior to such date. 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
Advance would be a Nonrecoverable Advance, the Trustee or Fiscal Agent, as
applicable, shall make such advance within the time periods required by Section
4.06(e) unless the Trustee or the Fiscal Agent, in good faith, makes a
determination prior to the times specified in Section 4.06(e) that such advance
would be a Nonrecoverable Advance. The Trustee and the Fiscal Agent, in
determining whether or not an Advance previously made is, or a proposed Advance,
if made, would be, a Nonrecoverable Advance shall be subject to the standards
applicable to the Master Servicer hereunder.
(g) The Master Servicer, the Trustee or the Fiscal Agent, as
applicable, shall be entitled to the reimbursement of P&I Advances it makes to
the extent permitted pursuant to Section 3.06(ii) of this Agreement together
with any related Advance Interest Amount in respect of such P&I Advances to the
extent permitted pursuant to Section 3.06(ii) and the Master Servicer and
Special Servicer hereby covenant and agree to promptly seek and effect the
reimbursement of such Advances from the related Borrowers to the extent
permitted by applicable law and the related Mortgage Loan.
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SECTION 4.07. Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of
(i) the Default Interest, proceeds therefrom and the Class T Distribution
Account, and (ii) Excess Interest, proceeds therefrom and the Excess Interest
Distribution Account shall constitute, and that the affairs of the Trust Fund
(exclusive of the Trust REMICs) shall be conducted so as to qualify such portion
as, a "grantor trust" under Subpart E, Part I of Subchapter J of the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall furnish or cause to be
furnished to Certificateholders and shall file or cause to be filed with the
Internal Revenue Service together with Form 1041 or such other form as may be
applicable, (i) to the Holders of the Class T Certificates, income with respect
to their allocable share of Default Interest and the amount of any interest paid
on unreimbursed Advances to the Master Servicer, the Trustee and the Fiscal
Agent, as applicable, therefrom pursuant to Section 3.06(ii) at the time or
times and in the manner required by the Code and (ii) to the Holders of the
Classes of Regular Certificates entitled thereto as set forth in Section
2.06(b), income with respect to their allocable share of Excess Interest at the
time or times and in the manner required by the Code.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
The Certificates consist of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3 Certificates, the Class X-1 Certificates, the
Class B Certificates, the Class C-1 Certificates, the Class C-2 Certificates,
the Class X-2 Certificates, the Class D Certificates, the Class E Certificates,
the Class F Certificates, the Class T Certificates, the Class R Certificates and
the Class LR Certificates.
The Class A-1, Class A-2, Class A-3, Class X-1, Class B, Class C-1,
Class C-2, Class D, Class E, Class F, Class T, Class R and Class LR Certificates
will be substantially in the forms annexed hereto as Exhibits A-1 through A-14,
respectively. The Certificates of each Class (other than the Class T, Class LR
and Class R Certificates) will be issuable in registered form only, in minimum
denominations of authorized initial Certificate Principal Amount or Notional
Amount, as applicable, as described in the succeeding table, and multiples of $1
in excess thereof. With respect to any Certificate or any beneficial interest in
a Certificate, the "Denomination" thereof shall be (i) the amount (A) set forth
on the face thereof or (B) in the case of any Global Certificate, set forth on a
schedule attached thereto or, in the case of any beneficial interest in a Global
Certificate, the product of the Percentage Interest represented by such
beneficial interest and the amount set forth on such schedule of the related
Global Certificate, (ii) expressed in terms of initial Certificate Principal
Amount or Notional Amount, as applicable, and (iii) be in an authorized
denomination, as set forth below. With respect to the Class F Certificates, on
the Closing Date, the Trustee or the Authenticating Agent shall execute and
authenticate and the Certificate Registrar shall deliver (i) Rule 144A global
Class F Certificates (the "Private Global Certificates") in definitive, fully
registered form without interest coupons, or (ii) one or more, if any,
Individual Certificates, in each case substantially in the form of Exhibit A-11
hereto, respectively. Each Certificate will share ratably in all rights of the
related Class. The Class T, Class R and LR Certificates will each be issuable in
one or more Individual Certificates in minimum denominations of 5% Percentage
Interests and integral multiples of a 1% Percentage Interest in excess thereof
and together aggregating the entire 100% Percentage Interest in each such Class.
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Aggregate
Denominations
of all Certificates
Minimum of Class
Certificate (in Initial Denomination
Class Principal Amount or Notional Amount)
----- ---------------- -------------------
A-1 $ 10,000.00 612,000,000
A-2 $ 10,000.00 204,000,000
A-3 $ 10,000.00 168,434,000
B $ 10,000.00 114,138,000
C-1 $ 10,000.00 49,870,000
C-2 $ 10,000.00 50,000,000
D $ 10,000.00 114,137,000
E $ 10,000.00 42,802,000
F $ 10,000.00 71,336,068
X-1 $ 250,000.00 1,376,717,068
X-2 $ 250,000.00 50,000,000
The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above. The Global Certificates shall in
all respects be entitled to the same benefits under this Agreement as Individual
Certificates authenticated and delivered hereunder.
Except insofar as pertains to any Individual Certificate, the Trust
Fund, the Paying Agent and the Trustee may for all purposes (including the
making of payments due on the Global Certificates and the giving of notice to
Holders thereof) deal with the Depository as the authorized representative of
the Beneficial Owners with respect to the Global Certificates for the purposes
of exercising the rights of Certificateholders hereunder; provided, however,
that, for purposes of providing information pursuant to Section 3.20 or
transmitting communications pursuant to Section 5.05(a), to the extent that the
Depositor has provided the Trustee with the names of Beneficial Owners, the
Trustee shall provide such information to such Beneficial Owners directly. The
rights of Beneficial Owners with respect to Global Certificates shall be limited
to those established by law and agreements between such Beneficial Owners and
the Depository and Depository Participants. Except in the limited circumstances
described below, Beneficial Owners of Public Global Certificates shall not be
entitled to physical certificates for the Public Global Certificates as to which
they are the Beneficial Owners. Requests and directions from, and votes of, the
Depository as Holder of the Global Certificates shall not be deemed inconsistent
if they are made with respect to different Beneficial Owners. Subject to the
restrictions on transfer set forth in Section 5.02 and
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Applicable Procedures, a Beneficial Owner of a Private Global Certificate may
request that the Depositor, or an agent thereof, cause the Depository (or any
Agent Member) to notify the Certificate Registrar and the Certificate Custodian
in writing of a request for transfer or exchange of such beneficial interest for
an Individual Certificate or Certificates. Upon receipt of such a request and
payment by the related Beneficial Owner of any attendant expenses, the Depositor
shall cause the issuance and delivery of such Individual Certificates. The
Certificate Registrar may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and give notice
to the Depository of such record date. Without the written consent of the
Depositor and the Certificate Registrar, no Global Certificate may be
transferred by the Depository except to a successor Depository that agrees to
hold the Global Certificates for the account of the Beneficial Owners.
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 Global Certificates (i) shall be delivered by the Certificate Registrar to
the Depository or, pursuant to the Depository's instructions on behalf of the
Depository to, and deposited with, the Certificate Custodian, and in either case
shall be registered in the name of Cede & Co. and (ii) shall bear a legend
substantially to the following effect:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Certificate Registrar for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein."
The Global Certificates may be deposited with such other Depository
as the Certificate Registrar may from time to time designate, and shall bear
such legend as may be appropriate.
If (i) the Depository advises the Trustee in writing that the
Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Depositor is unable to locate a
qualified successor, (ii) the Depositor or the Trustee, at its sole option,
elects to terminate the book-entry system through the Depository with respect to
all or any portion of any Class of Certificates or (iii) after the occurrence of
an Event of Default, Beneficial Owners owning not less than a majority in
Certificate Principal Amount or Notional Amount, as applicable, of the Global
Certificate for any Class then outstanding advise the Depository through
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interest of the Beneficial Owner
or Owners of such Global Certificate, the Trustee shall notify the affected
Beneficial Owners
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through the Depository of the occurrence of such event and the availability of
Individual Certificates to such Beneficial Owner or Owners requesting them. Upon
surrender to the Trustee of Global Certificates by the Depository, accompanied
by registration instructions from the Depository for registration of transfer,
the Trustee shall issue the Individual Certificates. Neither the Trustee, the
Fiscal Agent, the Certificate Registrar, the Master Servicer, the Special
Servicer nor the Depositor shall be liable for any actions taken by the
Depository or its nominee, including, without limitation, any delay in delivery
of such instructions. Upon the issuance of Individual Certificates, the Trustee,
the Fiscal Agent, the Certificate Registrar, the Master Servicer, the Special
Servicer, and the Depositor shall recognize the Holders of Individual
Certificates as Certificateholders hereunder.
If the Trustee, its agents or the Master Servicer or Special
Servicer has instituted or has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee, the Master Servicer or the Special Servicer has
been advised by counsel that in connection with such proceeding it is necessary
or appropriate for the Trustee, the Master Servicer or the Special Servicer to
obtain possession of the Certificates, the Trustee, the Master Servicer or the
Special Servicer may in its sole discretion determine that the Certificates
represented by the Global Certificates shall no longer be represented by such
Global Certificates. In such event, the Trustee or the Authenticating Agent will
execute and authenticate and the Certificate Registrar will deliver, in exchange
for such Global Certificates, Individual Certificates (and if the Trustee or the
Certificate Custodian has in its possession Individual Certificates previously
executed, the Authenticating Agent will authenticate and the Certificate
Registrar will deliver such Certificates) in a Denomination equal to the
aggregate Denomination of such Global Certificates.
If the Trust Fund ceases to be subject to Section 13 or 15(d) of the
Exchange Act, the Trustee shall make available to each Holder of a Class F,
Class T, Class R or Class LR Certificate, upon request of such a Holder,
information substantially equivalent in scope to the information currently filed
by the Master Servicer and/or the Trustee with the Commission pursuant to the
Exchange Act, plus such additional information required to be provided for
securities qualifying for resales under Rule 144A under the Act which
information shall be provided on a timely basis to the Trustee by the Master
Servicer.
Each Certificate may be printed or in typewritten or similar form,
and each Certificate shall, upon original issue, be executed and authenticated
by the Trustee or the Authenticating Agent and delivered to the Depositor. All
Certificates shall be executed by manual or facsimile signature on behalf of the
Trustee or Authenticating Agent by an authorized officer or signatory.
Certificates bearing the signature of an individual who was at any time the
proper officer or signatory of the Trustee or Authenticating Agent shall bind
the Trustee or Authenticating Agent, notwithstanding that such individual has
ceased to hold such office or position prior to the delivery of such
Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-14 executed by the
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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, Transfer and Exchange of Certificates.
(a) The Trustee shall keep or cause to be kept at the Corporate
Trust Office books (the "Certificate Register") for the registration, transfer
and exchange of Certificates (the Trustee, in such capacity, being the
"Certificate Registrar"). The names and addresses of all Certificateholders and
the names and addresses of the transferees of any Certificates shall be
registered in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of the individual participants holding beneficial interests in the Trust
Fund through the Depository. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Certificate Registrar, the Master
Servicer, the Trustee, any Paying Agent and any agent of any of them shall not
be affected by any notice or knowledge to the contrary. An Individual
Certificate is transferable or exchangeable only upon the surrender of such
Certificate to the Certificate Registrar at the Corporate Trust Office together
with an assignment and transfer (executed by the Holder or his duly authorized
attorney), subject to the applicable requirements of this Section 5.02. Upon
request of the Trustee, the Certificate Registrar shall provide the Trustee with
the names, addresses and Percentage Interests of the Holders.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the applicable requirements of this Section 5.02, the
Trustee shall execute and the Authenticating Agent shall duly authenticate in
the name of the designated transferee or transferees, one or more new
Certificates in Denominations of a like aggregate Denomination as the Individual
Certificate being surrendered. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e). Each Certificate
surrendered for registration of transfer shall be canceled and subsequently
destroyed by the Certificate Registrar. Each new Certificate issued pursuant to
this Section 5.02 shall be registered in the name of any Person as the
transferring Holder may request, subject to the applicable provisions of this
Section 5.02.
(c) In addition to the applicable provisions of this Section 5.02
and the rules of the Depository, the exchange, transfer and registration of
transfer of Individual Certificates or beneficial interests in the Private
Global Certificates shall be subject to the following restrictions.
(i) Transfers between Holders of Individual Certificates. With respect
to the transfer and registration of transfer of an Individual
Certificate representing an interest in the Class F or Class T
Certificates to a transferee that takes delivery in the form of an
Individual Certificate:
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(A) The Certificate Registrar shall register the transfer of an
Individual Certificate if the requested transfer is being made
by a transferee who has provided the Certificate Registrar
with an Investment Representation Letter substantially in the
form of Exhibit D-1 hereto (an "Investment Representation
Letter"), to the effect that the transfer is being made to a
Qualified Institutional Buyer in accordance with Rule 144A;
and
(B) The Certificate Registrar shall register the transfer of an
Individual Certificate if prior to the transfer such
transferee furnishes to the Certificate Registrar (a) an
Investment Representation Letter to the effect that the
transfer is being made to an Institutional Accredited Investor
in accordance with an applicable exemption under the Act, (b)
an opinion of counsel acceptable to the Certificate Registrar
that such transfer is in compliance with the Act and (c) the
Certificate Registrar shall register the transfer of an
Individual Certificate only if prior to the transfer the
transferee furnishes to the Certificate Registrar a written
undertaking by the transferor to reimburse the Trust for any
costs incurred by it in connection with the proposed transfer.
(ii) Transfers from the Private Global Certificates to Individual
Certificates. Any and all transfers from a Private Global
Certificate to a transferee wishing to take delivery in the form of
an Individual Certificate will require the transferee to take
delivery subject to the restrictions on the transfer of such
Individual Certificate described on the face of such Certificate,
and such transferee agrees that it will transfer such Individual
Certificate only as provided therein and herein. No such transfer
shall be made and the Certificate Registrar shall not register any
such transfer unless such transfer is made in accordance with this
Section 5.02(c)(ii).
(A) Transfers of a beneficial interest in a Private Global
Certificate to an Institutional Accredited Investor will
require delivery in the form of an Individual Certificate and
the Certificate Registrar shall register such transfer only
upon compliance with the provisions of Section 5.02(c)(i)(B).
(B) Transfers of a beneficial interest in a Private Global
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of an Individual Certificate will be
registered by the Certificate Registrar only upon compliance
with the provisions of Sections 5.02(c)(i)(A).
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(C) Upon acceptance for exchange or transfer of a beneficial
interest in a Private Global Certificate for an Individual
Certificate, as provided herein, the Certificate Registrar
shall endorse on the schedule affixed to the related Private
Global Certificate (or on a continuation of such schedule
affixed to such Private Global Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of
such Private Global Certificate equal to the Denomination of
such Individual Certificate issued in exchange therefor or
upon transfer thereof. Unless the Certificate Registrar has
received an Opinion of Counsel stating that in accordance with
applicable law the Securities Legend is not necessary (the
cost of such Opinion of Counsel to be borne by the party
requesting the removal of the Securities Legend), an
Individual Certificate issued upon transfer of or exchange for
a beneficial interest in the Private Global Certificate shall
bear the Securities Legend.
(iii) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual Certificate wishes at any
time to transfer such Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Private Global Certificate, such transfer may be effected only in
accordance with all applicable rules and procedures of the
Depository applicable to transfers by their respective participants
(the "Applicable Procedures"), and this Section 5.02(c)(iii). Upon
receipt by the Certificate Registrar at the Corporate Trust Office
of (1) the Individual Certificate to be transferred with an
assignment and transfer pursuant to Section 5.02(a), (2) written
instructions given in accordance with the Applicable Procedures from
an Agent Member directing the Certificate Registrar to credit or
cause to be credited to another specified Agent Member's account a
beneficial interest in such Private Global Certificate, as the case
may be, in an amount equal to the Denomination of the Individual
Certificate to be so transferred, (3) a written order given in
accordance with the Applicable Procedures containing information
regarding the account of the Agent Member to be credited with such
beneficial interest, and (4) an Investment Representation Letter
from the transferee to the effect that such transferee is a
Qualified Institutional Buyer, the Certificate Registrar shall
cancel such Individual Certificate, execute and deliver a new
Individual Certificate for the Denomination of the Individual
Certificate not so transferred, registered in the name of the
Holder, and the Certificate Registrar shall instruct the Depository
or the Certificate Custodian, as applicable, to increase the
Denomination of the Private Global Certificate, as the case may be,
by the Denomination of the Individual Certificate to be so
transferred, and to credit or cause to be
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credited to the account of the Person specified in such instructions
a corresponding Denomination of the Private Global Certificate.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified
Institutional Buyer take delivery in the form of a beneficial
interest in a Private Global Certificate.
(iv) All Transfers. An exchange of a beneficial interest in a Private
Global Certificate for an Individual Certificate or Certificates, an
exchange of an Individual Certificate or Certificates for a
beneficial interest in the Private Global Certificate and an
exchange of an Individual Certificate or Certificates for another
Individual Certificate or Certificates (in each case, whether or not
such exchange is made in anticipation of subsequent transfer, and in
the case of the Private Global Certificates, so long as the Private
Global Certificates remain outstanding and are held by or on behalf
of the Depository), may be made only in accordance with this Section
5.02 and in accordance with the rules of the Depository and
Applicable Procedures.
(d) If Certificates are issued upon the transfer, exchange or
replacement of Certificates not bearing the Securities Legend, the Certificates
so issued shall not bear the Securities Legend. If Certificates are issued upon
the transfer, exchange or replacement of Certificates bearing the Securities
Legend, or if a request is made to remove the Securities Legend on a
Certificate, the Certificates so issued shall bear the Securities Legend, or the
Securities Legend shall not be removed, as the case may be, unless there is
delivered to the Certificate Registrar such satisfactory evidence, which may
include an opinion of counsel (at the expense of the party requesting the
removal of such legend) familiar with United States securities laws, as may be
reasonably required by the Certificate Registrar, that neither the Securities
Legend nor the restrictions on transfers set forth therein are required to
ensure that transfers of any Certificate comply with the provisions of Rule 144A
or Rule 144 under the Act or that such Certificate is not a "restricted
security" within the meaning of Rule 144 under the Act. Upon provision of such
satisfactory evidence, the Certificate Registrar shall execute and deliver a
Certificate that does not bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Individual Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized Denomination) by surrendering such Certificate at the Corporate Trust
Office or at the office of any transfer agent appointed as provided under this
Agreement, together with an instrument of assignment or transfer (executed by
the Holder or its duly authorized attorney), in the case of transfer, and a
written request for exchange in the case of exchange. Following a proper request
for transfer or exchange, the Certificate Registrar shall, within five Business
Days of such request if made at such Corporate Trust Office, or within ten
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at the Corporate Trust Office
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or at the office of such transfer agent, as the case may be, to the transferee
(in the case of transfer) or Holder (in the case of exchange) or send by first
class mail (at the risk of the transferee in the case of transfer or Holder in
the case of exchange) to such address as the transferee or Holder, as
applicable, may request, an Individual Certificate or Certificates, as the case
may require, for a like aggregate Denomination and in such Denomination or
Denominations as may be requested. The presentation for transfer or exchange of
any Individual Certificate shall not be valid unless made at the Corporate Trust
Office or at the office of a transfer agent by the registered Holder in person,
or by a duly authorized attorney-in-fact. The Certificate Registrar may decline
to accept any request for an exchange or registration of transfer of any
Certificate during the period of fifteen days preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual Certificate
issued in exchange for a beneficial interest in a Public Global Certificate
pursuant to Section 5.01) or a beneficial interest in a Private Global
Certificate may only be transferred to Eligible Investors in accordance with the
provisions set forth herein. In the event that a Responsible Officer of the
Certificate Registrar becomes aware that such an Individual Certificate or
beneficial interest in a Private Global Certificate is being held by or for the
benefit of a Person who is not an Eligible Investor, or that such holding is
unlawful under the laws of a relevant jurisdiction, then the Certificate
Registrar shall have the right to void such transfer, if permitted under
applicable law, or to require the investor to sell such Individual Certificate
or beneficial interest in a Private Global Certificate to an Eligible Investor
within fourteen days after notice of such determination and each
Certificateholder by its acceptance of a Certificate authorizes the Certificate
Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding
transfer and exchange, transfers of the Global Certificates shall be limited to
transfers of such Global Certificates in whole, but not in part, to nominees of
the Depository or to a successor of the Depository or such successor's nominee.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 other than for transfers to
Institutional Accredited Investors, as provided herein. In connection with any
transfer to an Institutional Accredited Investor, the transferor shall reimburse
the Trust Fund for any costs (including the cost of the Certificate Registrar's
counsel's review of the documents and any legal opinions, submitted by the
transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
(i) The Certificate Registrar may as a condition of the registration
of any transfer of the Class F, Class T, Class R and Class LR Certificates
require the transferor to furnish other certifications, legal opinions or other
information (at the transferor's expense) as it may reasonably require to
confirm that the proposed transfer is being made pursuant to an
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exemption from, or in a transaction not subject to, the registration
requirements of the Act and other applicable laws.
(j) Neither the Depositor, the Master Servicer, the Trustee nor the
Certificate Registrar is obligated to register or qualify the Class F, Class T,
Class R or Class LR Certificates under the Act or any other securities law or to
take any action not otherwise required under this Agreement to permit the
transfer of such Certificates without registration or qualification. Any such
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Depositor, the Master Servicer, the Trustee and the
Certificate Registrar against any loss, liability or expense that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
(k) No transfer of any Class B, Class C-1, Class C-2, Class X-2,
Class D, Class E, Class F, Class T, Class R or Class LR Certificate (each, a
"Restricted Certificate") shall be made to (i) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a Xxxxx
plan, which is subject to Title I of ERISA or Section 4975 of the Code, or a
governmental plan (as defined in Section 3(32) of ERISA) that is subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or
(ii) a collective investment fund in which such Plans are invested, an insurance
company that is using assets of separate accounts or general accounts which
include assets of Plans (or which are deemed pursuant to ERISA or Similar Law to
include assets of Plans) or other Person acting on behalf of any such Plan or
using the assets of any such Plan to acquire any such Restricted Certificate,
other than (with respect to any transfer of a Restricted Certificate that is a
Class B, Class C-1, Class C-2, Class X-2, Class D, Class E or Class F
Certificate) an insurance company investing the assets of its general account
under circumstances whereby the purchase and holding of such Restricted
Certificate by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and Section 4975 of the Code under Prohibited
Transaction Class Exemption 95-60. Each prospective transferee of a Restricted
Certificate that takes the form of an Individual Certificate shall either (1)
deliver to the Depositor, the Certificate Registrar and the Trustee a
representation letter, substantially in the form of Exhibit D-2 hereto, stating
that the prospective transferee is not a Person referred to in (i) or (ii) above
or (2) in the event the transferee is such a Person, except in the case of a
Residual Certificate, which may not be transferred unless the transferee
represents it is not such a Person, the prospective transferee shall provide to
the Depositor, the Trustee and the Certificate Registrar an opinion of counsel
which establishes to the satisfaction of the Depositor, the Trustee and the
Certificate Registrar that the purchase or holding of the Restricted
Certificates by or on behalf of a Plan will not result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to Title I of ERISA,
Section 4975 of the Code or Similar Law, will not constitute or result in a
prohibited transaction within the meaning of ERISA or Section 4975 of the Code,
or a materially similar characterization under any Similar Law, and will not
subject the Master Servicer, the Special Servicer, the Depositor, the Trustee or
the Certificate Registrar to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any Similar Law) in
addition to those set forth in this Agreement, which opinion of counsel shall
not be an expense of the Trustee, the Trust Fund, the Master Servicer, the
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Special Servicer, the Certificate Registrar or the Depositor. The Certificate
Registrar shall not register the transfer of an Individual Certificate that is a
Restricted Certificate unless the transferee has provided the representation
letter or opinion of counsel referred to in the preceding sentence. The
transferee of a beneficial interest in a Global Certificate that is a Restricted
Certificate shall be deemed to represent that it is not a Person or entity
referred to in (i) or (ii) above. Any transfer of a Restricted Certificate that
would result in a prohibited transaction under ERISA or Section 4975 of the
Code, or a materially similar characterization under any Similar Law, shall be
deemed absolutely null and void ab initio.
(l) Each Person who has or acquires any Ownership Interest shall be
deemed by the acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the following provisions and the rights of each Person
acquiring any Ownership Interest are expressly subject to the following
provisions:
(i) Each Person acquiring or holding any Ownership Interest shall be a
Permitted Transferee and shall not acquire or hold such Ownership
Interest as agent (including a broker, nominee or other middleman)
on behalf of any Person that is not a Permitted Transferee. Any such
Person shall promptly notify the Certificate Registrar of any change
or impending change in its status (or the status of the beneficial
owner of such Ownership Interest) as a Permitted Transferee. Any
acquisition described in the first sentence of this Section 5.02(l)
by a Person who is not a Permitted Transferee or by a Person who is
acting as an agent of a Person who is not a Permitted Transferee
shall be void and of no effect, and the immediately preceding owner
who was a Permitted Transferee shall be restored to registered and
beneficial ownership of the Ownership Interest as fully as possible.
(ii) No Ownership Interest may be Transferred, and no such Transfer shall
be registered in the Certificate Register, without the express
written consent of the Certificate Registrar, and the Certificate
Registrar shall not recognize the Transfer, and such proposed
Transfer shall not be effective, without such consent with respect
thereto. In connection with any proposed Transfer of any Ownership
Interest, the Certificate Registrar shall, as a condition to such
consent, (x) require delivery to it in form and substance
satisfactory to it, and the proposed transferee shall deliver to the
Certificate Registrar and to the proposed transferor an affidavit in
substantially the form attached as Exhibit C-1 (a "Transferee
Affidavit") of the proposed transferee (A) that such proposed
transferee is a Permitted Transferee and (B) stating that (i) the
proposed transferee historically has paid its debts as they have
come due and intends to do so in the future, (ii) the proposed
transferee understands that, as the holder of an Ownership Interest,
it may incur liabilities in excess of cash flows generated by the
residual interest, (iii) the proposed transferee intends to pay
taxes associated with holding the Ownership Interest as they become
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due, (iv) the proposed transferee will not transfer the Ownership
Interest to any Person that does not provide a Transferee Affidavit
or as to which the proposed transferee has actual knowledge that
such Person is not a Permitted Transferee or is acting as an agent
(including a broker, nominee or other middleman) for a Person that
is not a Permitted Transferee, and (v) the proposed transferee
expressly agrees to be bound by and to abide by the provisions of
this Section 5.02(e) and (y) other than in connection with the
initial issuance of the Class R and Class LR Certificates, require a
statement from the proposed transferor substantially in the form
attached as Exhibit C-2 (the "Transferor Letter"), that the proposed
transferor has no actual knowledge that the proposed transferee is
not a Permitted Transferee and has no actual knowledge or reason to
know that the proposed transferee's statements in the preceding
clauses (x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a proposed
transferee under clause (ii) above, if a Responsible Officer of the
Certificate Registrar has actual knowledge that the proposed
transferee is not a Permitted Transferee, no Transfer to such
proposed transferee shall be effected and such proposed Transfer
shall not be registered on the Certificate Register; provided,
however, that the Certificate Registrar shall not be required to
conduct any independent investigation to determine whether a
proposed transferee is a Permitted Transferee. Upon notice to the
Certificate Registrar that there has occurred a Transfer to any
Person that is a Disqualified Organization or an agent thereof
(including a broker, nominee, or middleman) in contravention of the
foregoing restrictions, and in any event not later than 60 days
after a request for information from the transferor of such
Ownership Interest, or such agent, the Certificate Registrar and the
Trustee agree to furnish to the IRS and the transferor of such
Ownership Interest or such agent such information necessary to the
application of Section 860E(e) of the Code as may be required by the
Code, including, but not limited to, the present value of the total
anticipated excess inclusions with respect to such Class R or Class
LR Certificate (or portion thereof) for periods after such Transfer.
At the election of the Certificate Registrar and the Trustee, the
Certificate Registrar and the Trustee may charge a reasonable fee
for computing and furnishing such information to the transferor or
to such agent referred to above; provided, however, that such
Persons shall in no event be excused from furnishing such
information.
SECTION 5.03. 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
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Certificate, and (ii) there is delivered to the Certificate Registrar such
security or indemnity as may be required by it to save it, the Trustee and the
Master Servicer harmless, then, in the absence of actual knowledge by a
Responsible Officer of the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Trustee or the Authenticating Agent shall
execute and authenticate and the Certificate Registrar shall deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and of like tenor and
Percentage Interest. Upon the issuance of any new Certificate under this Section
5.03, 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
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04. Appointment of Paying Agent.
The Trustee may appoint a paying agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Master Servicer, to
execute and deliver to the Master Servicer and the Trustee an instrument in
which such Paying Agent shall agree with the Master Servicer and the Trustee
that such Paying Agent will hold all sums held by it for the payment to
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums have been paid to the Certificateholders or disposed of
as otherwise provided herein. The initial Paying Agent shall be the Trustee.
Except for LaSalle National Bank, as the initial Paying Agent, the Paying Agent
shall at all times be an entity having a long-term unsecured debt rating of at
least "A" by S&P and DCR and "AA2" by Xxxxx'x, or shall be otherwise acceptable
to each Rating Agency.
SECTION 5.05. Access to Certificateholders' Names and Addresses.
(a) If any Certificateholder (for purposes of this Section 5.05, an
"Applicant") applies in writing to the Certificate Registrar, and such
application states that the Applicant desires to communicate with other
Certificateholders, the Certificate Registrar shall furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as of the most recent Record Date, at the expense of the
Applicant.
(b) Every Certificateholder, by receiving and holding its
Certificate, agrees with the Trustee that the Trustee and the Certificate
Registrar shall not be held accountable in any way by reason of the disclosure
of any information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
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SECTION 5.06. Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, when required, to the Depositor or the Master
Servicer. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee, the Depositor and the Master Servicer, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of
any such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind every Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be done,
by the Trustee, the Depositor or the Master Servicer in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such additional
proof of any matter referred to in this Section 5.06 as it shall deem necessary.
SECTION 5.07. Authenticating Agent.
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Depositor and must be a corporation organized and doing business under the laws
of the United States of America or any state, having a principal office and
place of business in a state and city acceptable to the Depositor, having a
combined capital and surplus of at least $15,000,000, authorized under such laws
to do a trust business and subject to supervision or examination by federal or
state authorities. The Trustee shall serve as the initial Authenticating Agent
and the Trustee hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall 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.
The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at
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any time terminate the agency of the Authenticating Agent by giving written
notice of termination to the Authenticating Agent and the Depositor. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time the Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 5.07, the Trustee promptly shall appoint a successor
Authenticating Agent, which shall be acceptable to the Depositor, and shall mail
notice of such appointment to all Certificateholders. 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 herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section 5.07.
The Authenticating Agent shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee. Any
compensation paid to the Authenticating Agent shall be an unreimbursable expense
of the Trustee.
SECTION 5.08. Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or a
portion of the Mortgage Files as agent for the Trustee, by entering into a
Custodial Agreement. The Trustee agrees to comply with the terms of each
Custodial Agreement and to enforce the terms and provisions thereof against the
Custodian for the benefit of the Certificateholders. Each Custodian shall be a
depository institution subject to supervision by federal or state authority,
shall have a combined capital and surplus of at least $10,000,000, shall have a
long-term debt rating of at least "BBB" from DCR and "Baa2" from Xxxxx'x, unless
the Trustee shall have received prior written confirmation from each Rating
Agency that the appointment of such Custodian would not cause such Rating Agency
to withdraw, qualify or downgrade any of its then-current ratings on the
Certificates, and shall be qualified to do business in the jurisdiction in which
it holds any Mortgage File. Each Custodial Agreement may be amended only as
provided in Section 10.07. Any compensation paid to the Custodian shall be an
unreimbursable expense of the Trustee. The Trustee shall serve as the initial
Custodian. The Custodian, if the Custodian is not the Trustee, shall maintain a
fidelity bond in the form and amount that are customary for securitizations
similar to the securitization evidenced by this Agreement, with the Trustee
named as loss payee. The Custodian shall be deemed to have complied with this
provision if one of its respective Affiliates has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Custodian. In addition, the Custodian shall keep in force during
the term of this Agreement a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its obligations hereunder in the form and amount that are
customary for securitizations similar to the securitization evidenced by this
Agreement, with the Trustee named as loss payee. All fidelity bonds and policies
of errors and omissions insurance obtained under this Section 5.08 shall be
issued by a Qualified Insurer, or by any other insurer, that, as confirmed by
each Rating Agency in writing to the Trustee, would not in and of itself result
in the downgrade, withdrawal or qualification of any of the ratings assigned to
any Class of Certificates.
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Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer imposed under Article V of this Agreement or under
applicable law with respect to any transfer of any Certificate, or any interest
therein, other than to require delivery of the certification(s), letters,
affidavits and/or Opinions of Counsel described in Article V applicable with
respect to changes in registration of record ownership of Certificates in the
Certificate Register. The Trustee and the Certificate Registrar shall have no
liability for transfers, including transfers made through the book-entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer and
the Special Servicer.
The Depositor, the Master Servicer and the Special Servicer each
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed by this Agreement. Each of the Master Servicer and the
Special Servicer shall indemnify the Depositor, and any employee, director or
officer of the Depositor, and the Trust Fund and hold the Depositor and any
employee, director or officer of the Depositor, and the Trust Fund harmless
against any loss, liability or expense incurred by such parties (i) in
connection with any willful misconduct, bad faith, fraud or negligence in the
performance of duties of the Master Servicer or the Special Servicer, as the
case may be, or by reason of negligent disregard of the Master Servicer's or
Special Servicer's, as the case may be, obligations or duties hereunder, or (ii)
as a result of the breach by the Master Servicer or the Special Servicer, as the
case may be, of any of its representations or warranties contained herein.
SECTION 6.02. Merger or Consolidation of the Master Servicer.
Subject to the following paragraph, the Master Servicer will keep in
full effect its existence, rights and good standing as a corporation under the
laws of the State of California and will not jeopardize its ability to do
business in each state in which the Mortgaged Properties are located or 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.
The Master Servicer may be merged or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which it
shall be a party, or any Person succeeding to its business, shall be the
successor of the Master Servicer hereunder, and shall be deemed to have assumed
all of the liabilities of the Master Servicer hereunder, if each of the Rating
Agencies has confirmed in writing that such merger or consolidation or transfer
of assets and succession, in and of itself, will not cause a downgrade,
qualification or withdrawal of the then current ratings assigned by such Rating
Agency to any Class of Certificates.
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer and Others.
Subject to Section 6.01, neither the Depositor, the Master Servicer,
the Special Servicer nor any of the directors, officers, employees or agents of
the Depositor or the Master Servicer or the Special Servicer shall be under any
liability to the Trust Fund or the Certificateholders for any action taken, or
for refraining from the taking of any action, in good
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faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Depositor or the Master Servicer or
the Special Servicer or any such Person against liability which would be imposed
by reason of (i) any breach of warranty or representation, or other specific
liability provided herein, with respect to such respective party or (ii) any
willful misconduct, bad faith, fraud or negligence in the performance of duties
or by reason of negligent disregard of obligations or duties hereunder with
respect to such respective party. The Depositor, the Master Servicer, the
Special Servicer and any director, officer, employee or agent of the Depositor,
the Master Servicer or the Special Servicer may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any appropriate Person respecting any matters arising hereunder. The Depositor,
the Master Servicer, the Special Servicer and any director, officer, employee or
agent of the Depositor or the Master Servicer or the Special Servicer shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with, or relating to, this Agreement or the
Certificates, other than any loss, liability or expense (including legal fees
and expenses) (i) incurred by reason of willful misconduct, bad faith, fraud or
negligence in the performance of duties hereunder or by reason of negligent
disregard of obligations or duties hereunder, in each case by the Person being
indemnified; (ii) imposed by any taxing authority if such loss, liability or
expense is not specifically reimbursable pursuant to the terms of this Agreement
or (iii) with respect to any such party, resulting from the breach by such party
of any of its representations or warranties contained herein. Neither the
Depositor nor the Master Servicer nor 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 in its opinion does
not expose it to any expense or liability; provided, however, that the Depositor
or the Master Servicer or the Special Servicer may in its discretion undertake
any such action related to its obligations hereunder which it may deem necessary
or desirable with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action 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 Collection Account as provided in Section 3.06 of
this Agreement.
SECTION 6.04. Limitation on Resignation of the Master Servicer or
Special Servicer.
(a) Each of the Master Servicer and the Special Servicer may assign
its respective rights and delegate its respective duties and obligations under
this Agreement, provided that: (i) the purchaser or transferee accepting such
assignment and delegation (A) shall be satisfactory to the Trustee and to the
Depositor, (B) shall be an established mortgage finance institution, bank or
mortgage servicing institution, organized and doing business under the laws of
any state of the United States or the District of Columbia, authorized under
such laws to perform the duties of a servicer of mortgage loans or a Person
resulting from a merger, consolidation or succession that is permitted under
Section 6.02, and (C) shall execute and deliver to the Trustee an agreement, in
form and substance reasonably satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance
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and observance of each covenant and condition to be performed or observed by the
Master Servicer or the Special Servicer, as the case may be, under this
Agreement from and after the date of such agreement; (ii) as confirmed by a
letter from each Rating Agency delivered to the Trustee, each Rating Agency's
rating or ratings of the Regular Certificates in effect immediately prior to
such assignment, sale, transfer or delegation will not be qualified, downgraded
or withdrawn as a result of such assignment, sale, transfer or delegation; (iii)
the Master Servicer or the Special Servicer shall not be released from its
obligations under this Agreement that arose prior to the effective date of such
assignment and delegation under this Section 6.04; and (iv) the rate at which
the Servicing Fee or Special Servicing Compensation, as applicable (or any
component thereof) is calculated shall not exceed the rate then in effect. Upon
acceptance of such assignment and delegation, the purchaser or transferee shall
be the successor Master Servicer or Special Servicer, as applicable, hereunder.
(b) Except as provided in this Section 6.04, the Master Servicer and
the Special Servicer shall not resign from their respective obligations and
duties hereby imposed on them except upon determination that such duties
hereunder are no longer permissible under applicable law. Any such determination
permitting the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel (obtained at the
resigning Master Servicer's or Special Servicer's expense) to such effect
delivered to the Trustee.
No resignation or removal of the Master Servicer or the Special
Servicer as contemplated herein shall become effective until the Trustee or a
successor Master Servicer or Special Servicer shall have assumed the Master
Servicer's or the Special Servicer's responsibilities, duties, liabilities and
obligations hereunder. If no successor Master Servicer or Special Servicer can
be obtained to perform such obligations for the same compensation to which the
terminated Master Servicer or Special Servicer would have been entitled,
additional amounts payable to such successor Master Servicer or Special Servicer
shall be allocated to each Class of Certificates in the manner set forth in
Section 4.01(g).
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of
the Master Servicer and Special Servicer.
The Master Servicer and the Special Servicer shall afford the
Depositor, the Trustee and the Rating Agencies, upon reasonable notice, during
normal business hours access to all records maintained by it in respect of its
rights and obligations hereunder and access to its officers responsible for such
obligations. Upon request, the Master Servicer and the Special Servicer shall
furnish to the Depositor, the Master Servicer, the Special Servicer and the
Trustee its most recent annual financial statements and such other information
in its possession regarding its business, affairs, property and condition,
financial or otherwise as the party requesting such information, in its
reasonable judgment, determines to be relevant to the performance of the
obligations hereunder of the Master Servicer and the Special Servicer. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer or the Special Servicer hereunder which are in default and may, but is
not obligated to, perform, or cause a designee to perform, any defaulted
obligation of such Person hereunder or exercise its
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rights hereunder, provided that the Master Servicer and the Special Servicer
shall not be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee. In the event the Depositor or its
designee undertakes any such action it will be reimbursed by the Trust Fund from
the Collection Account as provided in Section 3.06 and Section 6.03 hereof to
the extent not recoverable from the Master Servicer or Special Servicer, as
applicable. Neither the Depositor nor the Trustee and neither the Master
Servicer, with respect to the Special Servicer, nor the Special Servicer, with
respect to the Master Servicer, shall have any responsibility or liability for
any action or failure to act by the Master Servicer or the Special Servicer and
neither such Person is obligated to monitor or supervise the performance of the
Master Servicer or the Special Servicer under this Agreement or otherwise.
Neither the Master Servicer nor the Special Servicer shall be under
any obligation to disclose confidential or proprietary information pursuant to
this Section.
SECTION 6.06. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
(or with respect to a Global Certificate, Beneficial Owner) of any Certificate
with the same rights it would have if it were not the Master Servicer or the
Special Servicer or an Affiliate thereof, except as otherwise expressly provided
herein. 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 or
Beneficial Owner of any Certificate, the Master Servicer or the Special Servicer
proposes to take action (including for this purpose, omitting to take action)
that (i) is not expressly prohibited by the terms hereof and would not, in the
Master Servicer's or the Special Servicer's good faith judgment, violate the
Servicing Standard, and (ii) 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, the Master Servicer or the Special
Servicer may seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (i) states that it is delivered
pursuant to this Section 6.06, (ii) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or the Special
Servicer or an Affiliate of the Master Servicer or the Special Servicer, and
(iii) 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) shall have consented in writing to the
proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice, such action shall
be deemed to comply with the Servicing Standard. The Trustee shall be entitled
to reimbursement from the Master Servicer or the Special Servicer, as
applicable, of the reasonable expenses of the Trustee incurred pursuant to this
paragraph. It is not the intent of the foregoing provision that
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the Master Servicer or the Special Servicer be permitted to invoke the procedure
set forth herein with respect to routine servicing matters arising hereunder,
except in the case of unusual circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Master Servicer Event of Default", wherever used herein, means
any one of the following events:
(i) any failure by the Master Servicer to remit to the Collection
Account or any failure by the Master Servicer to remit to the
Trustee for deposit into the Lower-Tier Distribution Account,
Upper-Tier Distribution Account, Excess Interest Distribution
Account, Interest Reserve Account or the Class T Distribution
Account, any amount required to be so remitted by the Master
Servicer (including a P&I Advance) pursuant to, and at the time
specified by the terms of this Agreement, which failure is not
remedied by 11:00 a.m., New York City time, on the related
Distribution Date (provided, however, that the Master Servicer will
pay the Trustee interest on such late payment at the prime rate
until such late payment is received by the Trustee); or
(ii) any failure on the part of the Master Servicer duly to observe or
perform in any material respect any of its other covenants or
agreements, or the material breach of its representations or
warranties on the part of the Master Servicer contained in this
Agreement, which continues unremedied for a period of 30 days (or 10
days in the case of a failure to maintain any insurance policy
required to be maintained pursuant to this Agreement) after the date
on which written notice of such failure or breach, requiring the
same to be remedied, shall have been given to the Master Servicer by
the Depositor or the Trustee, or to the Master Servicer, the
Depositor and the Trustee by the Holders of Certificates evidencing
Percentage Interests of at least 25% of any Class affected thereby;
provided that if such default is not capable of being cured within
such 30 day period (or 10 day period, as applicable) and the Master
Servicer is diligently pursuing such cure, the Master Servicer shall
be entitled to an additional 30 day period; provided further that
the failure of the Master Servicer to perform any covenant or
agreement contained herein (other than as provided in clause (i)
above) as a result of an inconsistency between this Agreement and
any Loan Document shall not be a Master Servicer Event of Default
hereunder; or
(iii) confirmation in writing by any Rating Agency that not terminating
the Master Servicer would, in and of itself, cause the then-current
rating
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assigned to any Class of Certificates to be qualified, withdrawn, or
downgraded; or
(iv) 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 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
Master Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(v) the Master Servicer 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 the Master Servicer, or of or
relating to all or substantially all of its property; or
(vi) the Master 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 insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(vii) the Master Servicer shall fail to make any Property Advance required
to be made by the Master Servicer hereunder (whether or not the
Trustee or the Fiscal Agent makes such Property Advance), which
failure continues unremedied for a period of fifteen (15) days after
the date on which such Advance was first due (or for any shorter
period as may be required, if applicable, to avoid any lapse in
insurance coverage required under any Mortgage or this Agreement
with respect to any Mortgaged Property or to avoid any foreclosure
or similar action with respect to any Mortgaged Property by reason
of a failure to pay real estate taxes and assessments); provided,
however, that in the event the Trustee or the Fiscal Agent makes a
required Property Advance pursuant to Section 3.22(b) due to the
Master Servicer's failure to make a required Property Advance, such
Event of Default shall occur immediately upon the making of such
Property Advance by the Trustee or the Fiscal Agent;
then, and in each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Master Servicer; provided, however, that if an
Event of Default as described in clauses (iv) through (vi) above
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occurs, the rights and obligations of the Master Servicer under this Agreement
shall be automatically terminated.
In the event that the Master Servicer is also the Special Servicer
and the Master Servicer is terminated as provided in this Section 7.01, the
Master Servicer shall also be terminated as Special Servicer.
(b) "Special Servicer Event of Default", wherever used herein, means
any one of the following events:
(i) any failure by the Special Servicer to remit to the Collection
Account any amount required to be so deposited by the Special
Servicer pursuant to, and at the time specified, and in accordance
with the terms of this Agreement; or
(ii) any failure on the part of the Special Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements, or the material breach of any representations or
warranties on the part of the Special Servicer contained in this
Agreement, which continues unremedied for a period of 30 days after
the date on which written notice of such failure or breach,
requiring the same to be remedied, shall have been given to the
Special Servicer by the Master Servicer, the Depositor, the Trustee
or by the Holders of Certificates evidencing Percentage Interests of
at least 25% of any Class affected thereby; or
(iii) confirmation in writing by any Rating Agency that failure to remove
the Special Servicer would, in and of itself, cause a downgrade,
qualification or withdrawal of the then current ratings assigned to
any Class of Certificates; or
(iv) 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 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
Special Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(v) the Special Servicer 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 the Special Servicer, or of or
relating to all or substantially all of its property; or
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(vi) 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 insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations;
then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Special Servicer; provided, however, that if
an Event of Default as described in clauses (iv) through (vi) above occurs, the
rights and obligations of the Special Servicer under this Agreement shall be
automatically terminated.
(c) In the event that the Master Servicer or the Special Servicer is
terminated pursuant to this Section 7.01, the Trustee shall, by notice in
writing to the Master Servicer or the Special Servicer, as the case may be (the
"Terminated Party"), terminate all of its rights and obligations under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
any rights the Master Servicer or Special Servicer may have hereunder as a
Certificateholder and any rights or obligations that accrued prior to the date
of such termination (including the right to receive all amounts accrued or owing
to it under this Agreement, plus interest at the Advance Rate on such amounts
until received to the extent such amounts bear interest as provided in this
Agreement, with respect to periods prior to the date of such termination and the
right to the benefits of Section 6.03 notwithstanding any such termination). On
or after the receipt by the Terminated Party of such written notice, all of its
authority and power under this Agreement, whether with respect to the
Certificates (except that the Terminated Party shall retain its rights as a
Certificateholder in the event and to the extent that it is a Certificateholder)
or the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this Section and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of and at the
expense of the Terminated 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 agrees that, in the event it is terminated pursuant to
this Section 7.01, to promptly (and in any event no later than ten Business Days
subsequent to such notice) provide, at its own expense, the Trustee with all
documents and records requested by the Trustee to enable the Trustee to assume
its functions hereunder, and to cooperate with the Trustee and the successor to
its responsibilities hereunder in effecting the termination of its
responsibilities and rights hereunder, including, without limitation, the
transfer to the successor Master Servicer or successor Special Servicer or the
Trustee, as applicable, for administration by it of all cash amounts which shall
at the time be or should have been credited by the Master Servicer or the
Special Servicer to the Collection Account, any REO Account or Lock-Box Account
shall thereafter be received with respect to the Mortgage Loans, and shall
promptly provide the Trustee or such successor Master Servicer or Special
Servicer (which may include the Trustee), as applicable, all documents and
records reasonably requested by it,
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such documents and records to be provided in such form as the Trustee or such
successor Master Servicer or Special Servicer shall reasonably request
(including electromagnetic form), to enable it to assume the Master Servicer's
or Special Servicer's function hereunder. All reasonable costs and expenses of
the Trustee or the successor Master Servicer or successor Special Servicer
incurred in connection with transferring the Mortgage Files to the successor
Master Servicer or Special Servicer and amending this Agreement to reflect such
succession as successor Master Servicer or successor Special Servicer pursuant
to this Section 7.01 shall be paid by the predecessor Master Servicer or the
Special Servicer, as applicable, upon presentation of reasonable documentation
of such costs and expenses. If the predecessor Master Servicer or Special
Servicer (as the case may be) has not reimbursed the Trustee or the successor
Master Servicer or Special Servicer for such expenses within 90 days after the
presentation of reasonable documentation, such expense shall be reimbursed by
the Trust Fund; provided that the Terminated Party shall not thereby be relieved
of its liability for such expenses.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
receives a notice of termination pursuant to Section 7.01, the Trustee shall be
its successor in all respects in its capacity as Master Servicer or Special
Servicer under this Agreement and the transactions set forth or provided for
herein and, except as provided herein, shall be subject to all the
responsibilities, duties, limitations on liability and liabilities relating
thereto and arising thereafter placed on the Master Servicer or Special Servicer
by the terms and provisions hereof; provided, however, that (i) the Trustee
shall have no responsibilities, duties, liabilities or obligations with respect
to any act or omission of the Master Servicer or Special Servicer and (ii) any
failure to perform, or delay in performing, such duties or responsibilities
caused by the Terminated Party's failure to provide, or delay in providing,
records, tapes, disks, information or monies shall not be considered a default
by such successor hereunder. The Trustee, as successor Master Servicer or
successor Special Servicer, shall be indemnified to the full extent provided the
Master Servicer or Special Servicer, as applicable, under this Agreement prior
to the Master Servicer's or the Special Servicer's termination. The appointment
of a successor Master Servicer or successor Special Servicer shall not affect
any liability of the predecessor Master Servicer or Special Servicer which may
have arisen prior to its termination as Master Servicer or Special Servicer. The
Trustee shall not be liable for any of the representations and warranties of the
Master Servicer or Special Servicer herein or in any related document or
agreement, for any acts or omissions of the predecessor Master Servicer or
predecessor Special Servicer or for any losses incurred in respect of any
Permitted Investment by the Master Servicer pursuant to Section 3.07 hereunder
nor shall the Trustee be required to purchase any Mortgage Loan hereunder. As
compensation therefor, the Trustee as successor Master Servicer or successor
Special Servicer shall be entitled to the Servicing Fee or Special Servicing
Compensation, as applicable, and all funds relating to the Mortgage Loans that
accrue after the date of the Trustee's succession to which the Master Servicer
or Special Servicer would have been entitled if the Master Servicer or Special
Servicer, as applicable, had continued to act hereunder. In the event any
Advances made by the Master Servicer, the Special Servicer and the Trustee or
the Fiscal Agent shall at any time be outstanding, or any
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amounts of interest thereon shall be accrued and unpaid, all amounts available
to repay Advances and interest hereunder shall be applied entirely to the
Advances made by the Trustee or the Fiscal Agent (and the accrued and unpaid
interest thereon), until such Advances and interest shall have been repaid in
full. Notwithstanding the above, the Trustee may, if it shall be unwilling to so
act, or shall, if it is unable to so act, or if the Holders of Certificates
entitled to at least 25% of the aggregate Voting Rights so request in writing to
the Trustee, or if neither the Trustee nor the Fiscal Agent is rated by each
Rating Agency in one of its two highest long-term debt rating categories or if
the Rating Agencies do not provide written confirmation that the succession of
the Trustee, as Master Servicer or Special Servicer, as applicable, will not
cause a downgrade, qualification or withdrawal of the then current ratings
assigned to the Certificates, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
with a net worth of at least $15,000,000, the appointment of which will not
result in a downgrade, qualification or withdrawal of the then current rating or
ratings assigned to any Class of Certificates as evidenced in writing by each
Rating Agency, as the successor to the Master Servicer or Special Servicer, as
applicable, hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer or Special
Servicer hereunder. No appointment of a successor to the Master Servicer or
Special Servicer hereunder shall be effective until the assumption by such
successor of all the Master Servicer's or Special Servicer's responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Master Servicer (or the Special Servicer if the Special Servicer is also the
Master Servicer) hereunder, unless the Trustee shall be prohibited by law from
so acting, the Trustee shall act in such capacity as herein above provided.
Pending the appointment of a successor to the Special Servicer, unless the
Master Servicer is also the Special Servicer, the Master Servicer shall act in
such capacity. In connection with such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the Terminated Party hereunder, provided, further, that if no
successor to the Terminated Party can be obtained to perform the obligations of
such Terminated Party hereunder, additional amounts shall be paid to such
successor and such amounts in excess of that permitted the Terminated Party
shall be treated as Realized Losses. The Depositor, the Trustee, the Master
Servicer or Special Servicer and such successor 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 termination pursuant to Section 7.01 above or
appointment of a successor to the Master Servicer or the Special Servicer, the
Trustee shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register and to each Rating
Agency.
(b) Within 30 days after the occurrence of any Event of Default of
which a Responsible Officer of the Trustee has actual knowledge, the Trustee
shall transmit by mail to all Holders of Certificates and to each Rating Agency
notice of such Event of Default, unless such Event of Default shall have been
cured or waived.
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SECTION 7.04. Other Remedies of Trustee.
During the continuance of any Master Servicer Event of Default or a
Special Servicer Event of Default when the Master Servicer is also serving as
Special Servicer, so long as such Master Servicer Event of Default or Special
Servicer Event of Default, if applicable, 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 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 filing of proofs of claim
and debt in connection therewith). In such event, the legal fees, expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account as provided in Section 3.06. In
addition, Holders of Certificates evidencing not less than 25% of the aggregate
outstanding principal amount of all Classes of Certificates may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred upon that Trustee. However,
the Trustee will not be under any obligation to pursue any such remedy or to
exercise any of such trusts or powers unless such Certificateholders have
offered the Trustee reasonable security or indemnity against the cost, expenses
and liabilities which may be incurred by the Trustee therein or thereby. Also,
the Trustee may decline to follow any such direction if the Trustee determines
that the action or proceeding so directed may not lawfully be taken or would
involve it in personal liability or be unjustly prejudicial to the nonassenting
Certificateholders. 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 Master Servicer
Event of Default or Special Servicer Event of Default, if applicable.
SECTION 7.05. Waiver of Past Events of Default; Termination.
The Holders of Certificates evidencing not less than 66-2/3% of the
aggregate Voting Rights of the Certificates may, on behalf of all Holders of
Certificates, waive any default by the Master Servicer or Special Servicer in
the performance of its obligations hereunder and its consequences, except a
default in making any required deposits (including P&I Advances) to or payments
from the Collection Account or the Lower-Tier Distribution Account or in
remitting payments as received, in each case in accordance with this Agreement.
Upon any such waiver of a past default, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon. Any costs and expenses
incurred by the Trustee in connection with such default and prior to such waiver
shall be reimbursed by the Master Servicer or the Special Servicer, as
applicable, promptly upon demand therefor and if not reimbursed to the Trustee
within 90 days of such demand, from the Trust Fund; provided, that the Trust
Fund shall be
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reimbursed by the Master Servicer or the Special Servicer, as applicable, to the
extent such amounts are reimbursed to the Trustee from the Trust Fund.
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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 of
which a Responsible Officer of the Trustee has actual knowledge 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 and no permissive right of the Trustee shall be construed as a duty.
During the continuance of an Event of Default of which a Responsible Officer of
the Trustee has actual knowledge, the Trustee, subject to the provisions of
Sections 7.02 and 7.04, 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 person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) The Trustee, upon receipt of any 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, shall examine them to determine whether they
conform on their face to the requirements of this Agreement to the extent
specifically set forth herein; provided, however, that, the Trustee shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument provided to it
hereunder. If any such instrument is found not to conform on its face to the
requirements of this Agreement in a material manner, the Trustee shall request a
corrected instrument, and if the instrument is not corrected to the Trustee's
reasonable satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor any of its officers, directors,
employees, agents or "control" persons within the meaning of the Act shall have
any liability arising out of or in connection with this Agreement, provided,
that, subject to Section 8.02, no provision of this Agreement shall be construed
to relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, and after
the curing or waiver 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
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the truth of the statements and the correctness of the opinions
expressed therein, upon any resolutions, certificates, statements,
reports, opinions, documents, orders or other instruments furnished
to the Trustee that conform on their face to the requirements of
this Agreement without responsibility for investigating the contents
thereof;
(ii) The Trustee shall not be personally liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers,
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
greater than 50% of the Percentage Interests (or such other
percentage as is specified herein) of each affected Class, or of the
aggregate Voting Rights of the Certificates, relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement;
(iv) Neither the Trustee nor any of its respective directors, officers,
employees, agents or control persons shall be responsible for any
act or omission of any Custodian, Paying Agent or Certificate
Registrar that is not an Affiliate of the Trustee and that is
selected other than by the Trustee, performed or omitted in
compliance with any custodial or other agreement, or any act or
omission of the Master Servicer, Special Servicer, the Depositor or
any other third Person, including, without limitation, in connection
with actions taken pursuant to this Agreement;
(v) The Trustee shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its
respective duties as Trustee in accordance with this Agreement (and,
if it does, all legal expenses and costs of such action shall be
expenses and costs of the Trust Fund), and the Trustee shall be
entitled to be reimbursed therefor from the Collection Account,
unless such legal action arises out of the negligence or bad faith
of the Trustee or any breach of an obligation, representation,
warranty or covenant of the Trustee contained herein; and
(vi) The Trustee shall not be charged with knowledge of any act, failure
to act or breach of any Person upon the occurrence of which the
Trustee may be required to act, unless a Responsible Officer of the
Trustee obtains actual knowledge of such failure. The Trustee shall
be deemed to have actual knowledge of the Master Servicer's or the
Special Servicer's failure to provide scheduled reports,
certificates and
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statements when and as required to be delivered to the Trustee
pursuant to this Agreement.
None of the provisions contained in this Agreement shall require
either the Trustee, in its capacity as Trustee, or the Fiscal Agent, to expend
or risk its own funds, or otherwise incur financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if in the opinion of the Trustee or the Fiscal Agent, respectively, the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee to perform, or be responsible
for the manner of performance of, any of the obligations of the Master Servicer
or the Special Servicer under this Agreement, except during such time, if any,
as the Trustee shall be the successor to, and be vested with the rights, duties,
powers and privileges of, the Master Servicer or the Special Servicer in
accordance with the terms of this Agreement. Neither the Trustee nor the Fiscal
Agent shall be required to post any surety or bond of any kind in connection
with its performance of its obligations under this Agreement and neither the
Trustee nor the Fiscal Agent shall be liable for any loss on any investment of
funds pursuant to this Agreement (other than any funds invested with it in its
commercial capacity).
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be
protected in acting or refraining from acting upon any
resolution, Officers' Certificate, certificate of
auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties and
the Trustee shall have no responsibility to ascertain or
confirm the genuineness of any such document;
(ii) The Trustee may consult with counsel and the advice of
such counsel and 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 with such advice or
Opinion of Counsel;
(iii) (A) The Trustee shall be under no obligation 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
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which may be incurred therein or thereby; (B) the right
of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a
duty, and the Trustee shall not be answerable for other
than its negligence or willful misconduct in the
performance of any such act; and (C) provided, that
subject to the foregoing clause (A), nothing contained
herein shall relieve the Trustee of the obligations,
upon the occurrence of an Event of Default (which has
not been cured or waived) of which a Responsible Officer
of the Trustee has actual knowledge, 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 person would exercise or use
under the circumstances in the conduct of such person's
own affairs;
(iv) Neither the Trustee nor any of its directors, officers,
employees, Affiliates, agents or "control" persons
within the meaning of the Act shall be personally liable
for any action taken, suffered or omitted by it in good
faith and reasonably believed by the Trustee to be
authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) 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% (or
such other percentage as is specified herein) of the
Percentage Interests of any affected Class; provided,
however, that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability
as a condition to taking any such action. The reasonable
expense of every such investigation shall be paid by the
Master Servicer or the Special Servicer, as applicable,
if an Event of Default shall have occurred and be
continuing relating to the Master Servicer, or the
Special Servicer, respectively, and otherwise by the
Certificateholders requesting the investigation; and
(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 but shall
not be relieved of its obligations hereunder.
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(b) Following the Start-up Day, the Trustee shall not, except as
expressly required by any provision of this Agreement, accept any contribution
of assets to the Trust Fund unless the Trustee shall have received an Opinion of
Counsel (the costs of obtaining such opinion to be borne by the Person
requesting such contribution) to the effect that the inclusion of such assets in
the Trust Fund will not cause any of the Upper-Tier REMIC or the Lower-Tier
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding or subject any of the Upper-Tier REMIC or the Lower-Tier REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall have no duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the repurchase of
any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility
of any Mortgage Loan for purposes of this Agreement.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall not be
taken as the statements of the Trustee, the Fiscal Agent, the Master Servicer,
or the Special Servicer, and the Trustee, the Fiscal Agent, the Master Servicer
and Special Servicer assume no responsibility for their correctness. The
Trustee, the Fiscal Agent, the Master Servicer and Special Servicer make no
representations or warranties as to the validity or sufficiency of this
Agreement, of the Certificates or any prospectus used to offer the Certificates
for sale or the validity, enforceability or sufficiency of any Mortgage Loan or
related document. Neither the Trustee nor the Fiscal Agent shall at any time
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage, any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders under this Agreement. Without limiting the foregoing, neither
the Trustee nor the Fiscal Agent shall be liable or responsible for: the
existence, condition and ownership of any Mortgaged Property; the existence of
any hazard or other insurance thereon (other than if the Trustee shall assume
the duties of the Master Servicer or the Special Servicer pursuant to Section
7.02) or the enforceability thereof; the existence of any Mortgage Loan or the
contents of the related Mortgage File on any computer or other record thereof
(other than if the Trustee shall assume the duties of the Master Servicer or the
Special Servicer pursuant to Section 7.02); the validity of the assignment of
any Mortgage Loan to the Trust Fund or of any intervening assignment; the
completeness of any Mortgage File (except for its review thereof pursuant to
Section 2.02); the performance or enforcement of any Mortgage Loan (other than
if the Trustee shall assume the duties of the Master Servicer or the Special
Servicer pursuant to Section 7.02); the compliance by the
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Depositor, the Master Servicer or the Special Servicer with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation prior to the Trustee's receipt
of notice or other discovery of any non-compliance therewith or any breach
thereof; any investment of monies by or at the direction of the Master Servicer
or any loss resulting therefrom (other than if the Trustee shall assume the
duties of the Master Servicer or the Special Servicer pursuant to Section 7.02),
it being understood that the Trustee shall remain responsible for any Trust Fund
property that it may hold in its individual capacity; the acts or omissions of
any of the Depositor, the Master Servicer or the Special Servicer (other than if
the Trustee shall assume the duties of the Master Servicer or Special Servicer
pursuant to Section 7.02) or any sub-Master Servicer or any Borrower; any action
of the Master Servicer or Special Servicer (other than if the Trustee shall
assume the duties of the Master Servicer or the Special Servicer pursuant to
Section 7.02) or any sub-Master Servicer taken in the name of the Trustee,
except to the extent such action is taken at the express written direction of
the Trustee; the failure of the Master Servicer or the Special Servicer or any
sub-Master Servicer to act or perform any duties required of it on behalf of the
Trust Fund or the Trustee hereunder; or any action by or omission of the Trustee
taken at the instruction of the Master Servicer or the Special Servicer (other
than if the Trustee shall assume the duties of the Master Servicer or the
Special Servicer pursuant to Section 7.02) unless the taking of such action is
not permitted by the express terms of this Agreement; provided, however, that
the foregoing shall not relieve the Trustee of its obligation to perform its
duties as specifically set forth in this Agreement. Neither the Trustee nor the
Fiscal Agent shall be accountable for the use or application by the Depositor,
the Master Servicer or the Special Servicer of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor, the Master Servicer or the Special Servicer in respect of the
assignment of the Mortgage Loans or deposited in or withdrawn from the
Collection Account, Lower-Tier Distribution Account, Upper-Tier Distribution
Account, Class T Distribution Account, Excess Interest Distribution Account,
Lock Box Account, Reserve Accounts, Interest Reserve Account or any other
account maintained by or on behalf of the Master Servicer or the Special
Servicer, other than any funds held by the Trustee or Fiscal Agent, as
applicable. Neither the Trustee nor the Fiscal Agent shall have responsibility
for filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security interest
or lien granted to it hereunder (unless the Trustee shall have become the
successor Master Servicer) or to record this Agreement. In making any
calculation hereunder which includes as a component thereof the payment or
distribution of interest for a stated period at a stated rate "to the extent
permitted by applicable law," the Trustee shall assume that such payment is so
permitted unless a Responsible Officer of the Trustee has actual knowledge, or
receives an Opinion of Counsel (at the expense of the Person asserting the
impermissibility) to the effect that such payment is not permitted by applicable
law.
SECTION 8.04. Trustee May Own Certificates.
The Trustee, the Fiscal Agent and any agent of the Trustee or Fiscal
Agent in its individual capacity or any other capacity may become the owner or
pledgee of Certificates,
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and may deal with the Depositor and the Master Servicer in banking transactions,
with the same rights it would have if it were not Trustee, Fiscal Agent or such
agent.
SECTION 8.05. Payment of Trustee Fees and Expenses; Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on each
Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Master Servicer or the Special Servicer hereunder
pursuant to or otherwise arising from the resignation or removal of the Master
Servicer or the Special Servicer, the Trustee shall be entitled to the
compensation to which the Master Servicer or the Special Servicer, as the case
may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or
reimbursed by the Trust Fund upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee or the Fiscal Agent
pursuant to and in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) to the extent such
payments are "unanticipated expenses" as described in clause (d) below, except
any such expense, disbursement or advance as may arise from its negligence or
bad faith; provided, however, that, subject to the last paragraph of Section
8.01, neither the Trustee nor the Fiscal Agent shall refuse to perform any of
its duties hereunder solely as a result of the failure to be paid the Trustee
Fee and the Trustee's expenses or any sums due to the Fiscal Agent.
The Master Servicer and the Special Servicer covenant and agree to
pay or reimburse the Trustee for the reasonable out-of-pocket expenses incurred
or made by the Trustee in connection with any transfer of the servicing
responsibilities of the Master Servicer or the Special Servicer, respectively,
hereunder, pursuant to or otherwise arising from the resignation or removal of
the Master Servicer or the Special Servicer, in accordance with any of the
provisions of this Agreement (and including the reasonable fees and expenses and
disbursements of its counsel and all other persons not regularly in its employ),
except any such expense, disbursement or advance as may arise from the
negligence or bad faith of the Trustee.
(c) Each of the Paying Agent, the Certificate Registrar, the
Custodian, the Depositor, the Master Servicer and the Special Servicer (each, an
"Indemnifying Party") shall indemnify the Trustee and the Fiscal Agent and their
respective Affiliates and each of the directors, officers, employees and agents
of the Trustee, the Fiscal Agent and their respective Affiliates (each, an
"Indemnified Party"), and hold each of them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees and expenses that
the Indemnified Party may sustain in connection with this Agreement (including,
without limitation, reasonable fees
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and disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) related to each such
Indemnifying Party's respective willful misconduct, bad faith, fraud and/or
negligence in the performance of each of its respective duties hereunder or by
reason of negligent disregard of its respective obligations and duties hereunder
(including in the case of the Master Servicer, any agent of the Master Servicer
or sub-Master Servicer).
(d) The Trust Fund shall indemnify each Indemnified Party from, and
hold it harmless against, any and all losses, liabilities, damages, claims or
unanticipated expenses (including, without limitation, reasonable fees and
disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) arising in respect of
this Agreement or the Certificates, in each case to the extent and only to the
extent, such payments are expressly reimbursable under this Agreement, or are
unanticipated expenses (as defined below), other than (i) those resulting from
the negligence, fraud, bad faith or willful misconduct of the Indemnified Party
and (ii) those as to which such Indemnified Party is entitled to indemnification
pursuant to Section 8.05(c). The term "unanticipated expenses" shall include any
fees, expenses and disbursement of any separate trustee or co-trustee appointed
hereunder, only to the extent such fees, expenses and disbursements were not
reasonably anticipated as of the Closing Date, and the losses, liabilities,
damages, claims or incremental expenses (including reasonable attorneys' fees)
incurred or advanced by an Indemnified Party in connection with (i) a default
under any Mortgage Loan and (ii) any litigation arising out of this Agreement,
including, without limitation, under Section 2.03, Section 3.10, the third
paragraph of Section 3.11, Section 4.05 and Section 7.01. The right of
reimbursement of the Indemnified Parties under this Section 8.05(d) shall be
senior to the rights of all Certificateholders.
(e) Notwithstanding anything herein to the contrary, this Section
8.05 shall survive the termination or maturity of this Agreement or the
resignation or removal of the Trustee or the Fiscal Agent, as the case may be,
as regards rights accrued prior to such resignation or removal and (with respect
to any acts or omissions during their respective tenures) the resignation,
removal or termination of the Master Servicer, the Special Servicer, the Paying
Agent, the Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include, but
not be limited to, such indemnities, compensation, expenses, disbursements,
advances, losses, liabilities, damages and the like, as may pertain or relate to
any environmental law or environmental matter.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate trust
powers and to accept the trust conferred
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under this Agreement, having a combined capital and surplus of at least
$50,000,000 and a rating on its unsecured long-term debt of at least "BBB" by
DCR and "Baa2" by Xxxxx'x (or at any time when there is no Fiscal Agent
appointed and acting hereunder or any such Fiscal Agent so appointed has a
rating on its long-term unsecured debt that is lower than "AA" by S&P and XXX,
"Xx0" by Xxxxx'x the rating on the unsecured long term debt of the Trustee must
be at least "AA" by S&P and DCR, and "Aa2" by Xxxxx'x, or meet different
standards provided that each Rating Agency shall have confirmed in writing that
such different standards would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates) and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of the Master Servicer (except during
any period when the Trustee has assumed the duties of the Master Servicer
pursuant to Section 7.02); provided that, notwithstanding that the long-term
unsecured debt of LaSalle National Bank and ABN AMRO Bank N.V. are not rated by
S&P and DCR, LaSalle National Bank shall not fail to qualify as Trustee solely
by virtue of the lack of such ratings until such time as either S&P or DCR shall
notify the Trustee, the Master Servicer and the Special Servicer in writing that
LaSalle National Bank is no longer exempt from the foregoing rating requirements
imposed by this sentence. If a corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for purposes of this Section
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In the event that the place of business from which the Trustee
administers the Trust Fund is a state or local jurisdiction that imposes a tax
on the Trust Fund or the net income of a REMIC (other than a tax corresponding
to a tax imposed under the REMIC Provisions) the Trustee shall elect either to
(i) resign immediately in the manner and with the effect specified in Section
8.07, (ii) pay such tax from its own funds and continue as Trustee or (iii)
administer the Trust Fund from a state and local jurisdiction that does not
impose such a tax. In case 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.
SECTION 8.07. Resignation and Removal of the Trustee.
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 and each Rating Agency. Upon such notice of resignation, the Fiscal
Agent shall also be deemed to have been removed and, accordingly, the Master
Servicer shall promptly appoint a successor Trustee, the appointment of which
would not, as evidenced in writing, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates, and a successor Fiscal Agent (if necessary to satisfy the
requirements contained in Section 8.06), the appointment of which, if the
successor Trustee is not rated by each Rating Agency in one of its two highest
long-term debt rating categories, would not, as evidenced in writing, in and of
itself, result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates, by written instrument, in triplicate,
which instrument shall be delivered to the resigning Trustee, with a copy to the
Fiscal Agent deemed removed, and the successor Trustee and successor Fiscal
Agent. If no successor Trustee and successor Fiscal
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Agent shall have been so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Trustee and the
Fiscal Agent may petition any court of competent jurisdiction for the
appointment of a successor Trustee and successor Fiscal Agent.
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 Master Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if a tax is imposed or threatened with respect to the Trust Fund
by any state in which the Trustee or the Trust Fund is located, and the Trustee
has not elected to act pursuant to clauses (i), (ii) or (iii) of the penultimate
sentence of Section 8.06, or upon a confirmation in writing by any Rating Agency
that not terminating the Trustee, or the Fiscal Agent, as applicable, would, in
and of itself, cause the then-current rating assigned to any Class of
Certificates to be qualified, withdrawn or downgraded, then the Depositor may
remove the Trustee and the Fiscal Agent and promptly appoint a successor Trustee
and successor Fiscal Agent by written instrument, which shall be delivered to
the Trustee and the Fiscal Agent so removed and to the successor Trustee and the
successor Fiscal Agent. The Holders of Certificates entitled to at least 50% of
the Voting Rights of all of the Certificates may at any time remove the Trustee
and the Fiscal Agent (and any removal of the Trustee shall be deemed to be a
removal also of the Fiscal Agent) and appoint a successor Trustee and, if
necessary, successor Fiscal Agent by written instrument or instruments delivered
thirty days prior to the date of such removal, in seven originals, signed by
such Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered to the Depositor, one complete set to the
Master Servicer, one complete set to the Trustee so removed, one complete set to
the Fiscal Agent deemed removed, one complete set to the successor Trustee so
appointed and one complete set to any successor Fiscal Agent so appointed. Upon
any succession of the Trustee or the Fiscal Agent under this Agreement, the
predecessor Trustee or Fiscal Agent, as the case may be, shall be entitled to
the payment of compensation and reimbursement agreed to under this Agreement for
services rendered and expenses incurred.
In the event of removal of the Trustee, the Fiscal Agent shall be
deemed to have been removed.
In the event that the Trustee or Fiscal Agent is terminated or
removed pursuant to this Section 8.07, all of its 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
accrued or owing to it under this Agreement, plus interest at the Advance Rate
on all such amounts until received to the extent such amounts bear interest as
provided in this Agreement, with respect to periods prior to the date of such
termination or removal).
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Any resignation or removal of the Trustee and Fiscal Agent and
appointment of a successor Trustee and, if such trustee is not rated by each
Rating Agency in one of its two highest long-term debt rating categories, a
successor Fiscal Agent pursuant to any of the provisions of this Section 8.07
shall not become effective until acceptance of appointment by the successor
Trustee and, if necessary, successor Fiscal Agent as provided in Section 8.08.
SECTION 8.08. Successor Trustee and Fiscal Agent.
(a) Any successor Trustee and any successor Fiscal Agent appointed
as provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, the Master Servicer and to the predecessor Trustee and predecessor
Fiscal Agent, as the case may be, instruments accepting their appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
and predecessor Fiscal Agent shall become effective and such successor Trustee
and successor Fiscal Agent, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee or
Fiscal Agent herein, provided that the appointment of such successor Trustee and
successor Fiscal Agent shall not, as evidenced in writing by each Rating Agency,
result in a downgrade, qualification or withdrawal of the then current ratings
assigned to the Certificates. The predecessor Trustee shall deliver to the
successor Trustee all Mortgage Files and related documents and statements held
by it hereunder, and the Depositor and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor Trustee all
such rights, powers, duties and obligations. 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.
The Fiscal Agent may not resign except in the event of the
resignation or removal of the Trustee, upon determination that it may no longer
perform such obligations and duties under applicable law or upon written
confirmation from the Rating Agencies that such resignation, without the
appointment of a successor Fiscal Agent, will not in and of itself result in a
downgrade qualification or withdrawal of the then current rating of any Class of
Certificates. Any such determination is required to be evidenced by an opinion
of counsel to such effect delivered to the Depositor and the Trustee. No
resignation or removal of the Fiscal Agent shall become effective until a
successor fiscal agent, if required by the Rating Agencies, acceptable to each
Rating Agency, as evidenced in writing (which may be Trustee) shall have assumed
the Fiscal Agent's obligations and duties under this Agreement.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
Trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Depositor fails to mail such notice within 10
days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Depositor.
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(b) Any successor Trustee or Fiscal Agent appointed pursuant to this
Agreement shall satisfy the eligibility requirements set forth in Section 8.06
hereof.
SECTION 8.09. Merger or Consolidation of Trustee or Fiscal Agent.
Any corporation into which the Trustee or Fiscal Agent may be merged
or converted or with which it may be consolidated or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee or business of the Fiscal Agent, shall
be the successor of the Trustee hereunder, provided that such corporation shall
be eligible under the provisions of Section 8.06, 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.
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
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act (at the expense of the Trustee) 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 Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not be in existence or shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
case an Event of Default shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. Except as required by
applicable law, the appointment of a co-trustee or separate trustee shall not
relieve the Trustee of its responsibilities, obligations and liabilities
hereunder. 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.
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 (it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act), 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 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
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thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee solely at the direction of the Trustee.
No trustee under this Agreement shall be personally liable by reason
of any act or omission of any other trustee under this Agreement. The Depositor
and the Trustee acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee, or if the separate trustee or
co-trustee is an employee of the Trustee, the Trustee acting alone may accept
the resignation of or remove any separate trustee or co-trustee.
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. Every such instrument shall be filed with the Trustee.
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. In no
event shall any such separate trustee or co-trustee be entitled to any provision
relating to the conduct of, affecting the liability of, or affording protection
to, such separate trustee or co-trustee that imposes a standard of conduct less
stringent than that imposed on the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the initial
Fiscal Agent hereunder for the purposes of exercising and performing the
obligations and duties imposed upon the Fiscal Agent hereunder. The Fiscal Agent
undertakes to perform such duties and only such duties as are specifically set
forth hereunder.
(b) No provision of this Agreement shall be construed to relieve the
Fiscal Agent from liability for its own negligent failure to act or its own
willful misfeasance or for a breach of a representation or warranty contained
herein; provided, however, that (i) the duties and obligations of the Fiscal
Agent shall be determined solely by the express provisions of this Agreement,
the Fiscal Agent shall not be liable except for the performance of such duties
and obligations, no implied covenants or obligations shall be read into this
Agreement against the Fiscal Agent and, in the absence of bad faith on the part
of the Fiscal Agent, the Fiscal Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions
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expressed therein, upon any resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Fiscal Agent by
the Depositor, the Master Servicer, the Special Servicer or the Trustee and
which on their face do not contradict the requirements of this Agreement, and
(ii) the provisions of clause (ii) of Section 8.01(c) shall apply to the Fiscal
Agent.
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ARTICLE IX
TERMINATION; OPTIONAL MORTGAGE LOAN PURCHASE
SECTION 9.01. Termination; Optional Mortgage Loan Purchase.
(a) The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created hereby with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as
hereinafter set forth) shall terminate immediately following the occurrence of
the last action required to be taken by the Trustee pursuant to this Article IX
on the Termination Date; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of twenty-one years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
(b) The Upper-Tier REMIC and the Lower-Tier REMIC shall be
terminated and the assets of the Trust Fund with respect to the Trust REMICs
shall be sold or otherwise disposed of in connection therewith, only pursuant to
a "plan of complete liquidation" within the meaning of Code Section
860F(a)(4)(A) providing for the actions contemplated by the provisions hereof
pursuant to which the applicable Notice of Termination is given and requiring
that the assets of each of the Upper-Tier REMIC and the Lower-Tier REMIC shall
be sold for cash and that each such REMIC shall terminate on a Distribution Date
occurring not more than 90 days following the date of adoption of the plan of
complete liquidation. For purposes of this Section 9.01(b), the Notice of
Termination given pursuant to Section 9.01(c) shall constitute the adoption of
the plan of complete liquidation as of the date such notice is given, which date
shall be specified by the Master Servicer in the final federal income tax
returns of the Upper-Tier REMIC and the Lower-Tier REMIC. Notwithstanding the
termination of the REMICs or the Trust Fund, the Trustee shall be responsible
for filing the final Tax Returns for the REMICs and applicable income tax or
information returns for the Grantor Trust for the period ending with such
termination, and shall maintain books and records with respect to the REMICs and
the Grantor Trust for the period for which it maintains its own tax returns or
other reasonable period.
(c) The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date specifying the
Anticipated Termination Date, by purchasing on such date all, but not less than
all, of the Mortgage Loans then included in the Trust Fund, and all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in cash,
equal to not less than the greater of:
(i) the sum of
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(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted hereby with interest
on all unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Master Servicer as of a date not more than
30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage Interest in such Class, may also effect such
termination as provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Depositor nor the Master Servicer as the case may
be, terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to this Agreement or by the
Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to this Section 9.01(c) shall be borne by the
party exercising its purchase rights hereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser pursuant
to this subsection (c).
Any Mortgage Loan purchased under the circumstances described in
this subsection (c) will be purchased subject to a
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continuing right of (i) the holders of the Class T Certificates to receive from
the purchaser(s), from time to time, payments corresponding to Default Interest
with respect to such Mortgage Loan and (ii) the holders of the Classes of
Certificates entitled to receive the Excess Interest with respect to such
Mortgage Loan, as specified in Section 2.06(b), to receive from the
purchaser(s), from time to time, payments corresponding to Excess Interest with
respect to such Mortgage Loan.
(d) If the Trust Fund has not been previously terminated pursuant to
subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of the Lower-Tier Regular
Interests, notwithstanding that such distribution may be insufficient to
distribute in full an amount equal to the remaining Certificate Principal Amount
of each such Certificate or Lower-Tier Regular Interest, together with amounts
required to be distributed on such Distribution Date pursuant to Section 4.01 or
(ii) if no such Regular Certificates are then outstanding, to the Holders of the
Class LR Certificates of any amount remaining in the Collection Account or the
Lower-Tier Distribution Account and to the Holders of the Class R Certificates
of any amount remaining in the Upper-Tier Distribution Account, in either case,
following the later to occur of (A) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund or (B) the
liquidation or disposition pursuant to Section 3.18 of the last asset held by
the Trust Fund and (iii) to the holders of the Class T Certificates, of any
amount remaining in the Class T Distribution Account to the holders of
Certificates entitled to receive Excess Interest, as provided in Section
2.06(b), of any amount remaining in the Excess Interest Distribution Account.
(e) Notice of any termination of the Trust Fund pursuant to this
Section 9.01 shall be mailed by the Trustee to affected Certificateholders with
a copy to the Master Servicer and each Rating Agency at their addresses shown in
the Certificate Registrar as soon as practicable after the Trustee shall have
received, or been deemed to have received a Notice of Termination but in any
event not more than thirty days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of
Certificates of the Classes specified therein;
(ii) specify the amount of any such final distribution, if known;
and
(iii) state that the final distribution to Certificateholders will
be made only upon presentation and surrender of Certificates
at the office of the Paying Agent therein specified.
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If the Trust Fund is not terminated on any Anticipated Termination
Date for any reason, the Trustee shall promptly mail notice thereof to each
affected Certificateholder.
(f) Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with this Section 9.01.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
SECTION 10.02. Limitation on Rights of Certificateholders.
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.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right 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 such Holder previously shall have given
to the Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates representing
Percentage Interests of at least 25% of each affected Class of Certificates
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 of any Class shall have any right in any manner whatever 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, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. For the
protection and enforcement of the provisions of this Section, each and every
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Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Notices.
All demands, notices and communications hereunder shall be in
writing, shall be deemed to have been given upon receipt (except that notices to
Holders of Class T, Class R and Class LR Certificates or Holders of any Class of
Certificates no longer held through a Depository and instead held in registered,
definitive form shall be deemed to have been given upon being sent by first
class mail, postage prepaid) as follows:
If to the Trustee, to:
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset-Backed Securities
Trust Services Group, Structured Asset Securities
Corporation,
Series 1997-LL I
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Asset-Backed Securities
Trust Services Group, Series 1997-LL I
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If to the Depositor, to:
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
If to the Master Servicer or the Special Servicer, to:
GMAC Commercial Mortgage Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Servicing Manager
With a copy to:
General Counsel
If to the Underwriter, to:
Xxxxxx Brothers Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
If to any Certificateholder, to:
the address set forth in the
Certificate Register,
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
SECTION 10.05. 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, to the
extent permitted by applicable law, such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
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SECTION 10.06. Notice to the Depositor and Each Rating Agency.
(a) The Trustee shall use its best efforts to promptly provide
notice to the Depositor and each Rating Agency with respect to each of the
following of which a Responsible Officer of the Trustee 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 merger, consolidation, resignation or termination of the
Master Servicer, Special Servicer, the Trustee or Fiscal
Agent;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(d);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account, the
Lower-Tier Distribution Account or the Upper-Tier Distribution
Account;
(vii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Master
Servicer;
(viii) any change in the lien priority of a Mortgage Loan;
(ix) any new lease of an anchor or a termination of an anchor lease
at a retail Mortgaged Property; and
(x) any material damage to a Mortgaged Property.
(b) The Master Servicer (or the Trustee with respect to item (iv)
below) shall promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.14;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.15;
(iii) a copy of each operating and other financial statements, rent
rolls, occupancy reports, and sales reports to the extent such
information is required to be delivered under a Mortgage Loan,
in each case to the extent collected pursuant to Section 3.03;
(iv) each report to Certificateholders described in Section 4.02
and Section 3.20 and any Special Event Report prepared
pursuant to Section 3.20(b); and
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(v) each inspection report prepared in connection with any
inspection conducted pursuant to Section 3.19(a).
(c) The Master Servicer shall furnish each Rating Agency with such
information with respect to the Trust Fund, any Mortgaged Property, a Borrower
and a non-performing or Specially Serviced Mortgage Loan as such Rating Agency
shall reasonably request and which the Master Servicer can reasonably obtain.
The Rating Agencies shall not be charged any fee or expense in connection
therewith.
(d) Notices to each Rating Agency shall be addressed as follows:
Standard & Poor's Ratings Services
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance
Duff & Xxxxxx Credit Rating Co.
00 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Structured Finance Commercial Real Estate
Monitoring
Xxxxx'x Investor Services, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Managing Director
or in each case to such other address as any Rating Agency shall specify by
written notice to the parties hereto.
(e) To the extent reasonable, each of the foregoing notices and
reports shall be delivered to the Rating Agencies in an electronic medium as may
be requested by the Rating Agencies.
SECTION 10.07. Amendment.
This Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders, (i)
to cure any ambiguity, (ii) to correct or supplement any provisions herein or
therein that may be defective or inconsistent with any other provisions herein
or therein, (iii) to amend any provision thereof to the extent necessary or
desirable to maintain the status of each of the Upper-Tier REMIC and Lower-Tier
REMIC as a REMIC, or to prevent the imposition of any material state or local
taxes; (iv) to amend or supplement any provisions herein or therein that shall
not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment, or as
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evidenced by confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, (v) to amend or
supplement any provisions therein to the extent necessary or desirable to
maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) to make any other provisions with respect to matters or
questions arising under this Agreement, which shall not be inconsistent with the
provisions of this Agreement and will not result in a downgrade, qualification
or withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend this Agreement to modify, eliminate
or add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
This Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
representing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment 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 Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under this Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of
the Percentage Interests of the Class or Classes affected
thereby; or
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(iv) amend any section hereof which relates to the amendment of
this Agreement without the consent of all the holders of all
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
In the event that neither the Depositor nor any successor thereto,
if any, is in existence, any amendment under this Section 10.07 shall be
effective with the consent of the Trustee, the Fiscal Agent, the Master Servicer
and the Special Servicer, in writing, and to the extent required by this
Section, the Certificateholders. Promptly after the execution of any amendment,
the Master Servicer shall forward to the Trustee and the Trustee shall furnish
written notification of the substance of such amendment to each
Certificateholder and each Rating Agency. It shall not be necessary for the
consent of Certificateholders under this Section 10.07 to approve the particular
form of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The method 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;
provided, however, that such method shall always be by affirmation and in
writing.
Notwithstanding any contrary provision of this Agreement, no
amendment shall be made to this Agreement or any Custodial Agreement unless, if
requested by the Master Servicer and/or the Trustee, the Master Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in clause (i) or (ii) of the first sentence of this Section,
then at the expense of the Trust Fund), to the effect that such amendment will
not cause either of the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding, will not cause a
tax to be imposed on the Trust Fund under the REMIC Provisions (other than a tax
at the highest marginal corporate tax rate on net income from foreclosure
property) and will not cause the Grantor Trust to fail to qualify as a grantor
trust. Prior to the execution of any amendment to this Agreement or any
Custodial Agreement, the Trustee, the Fiscal Agent, the Special Servicer and the
Master Servicer may request and shall be entitled to rely conclusively upon an
Opinion of Counsel, at the expense of the party requesting such amendment (or,
if such amendment is required by any Rating Agency to maintain the rating issued
by it or requested by the Trustee for any purpose described in clause (i), (ii),
(iii) or (v) (which do not modify or otherwise relate solely to the obligations,
duties or rights of the Trustee) of the first sentence of this Section, then at
the expense of the Trust Fund) stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee and the Fiscal Agent may,
but shall not be obligated to, enter into any such amendment which affects the
Trustee's or the Fiscal Agent's own rights, duties or immunities under this
Agreement.
SECTION 10.08. Confirmation of Intent.
It is the express intent of the parties hereto that the conveyance
of the Trust Fund (including the Mortgage Loans) by the Depositor to the Trustee
on behalf of
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Certificateholders as contemplated by this Agreement and the sale by the
Depositor of the Certificates be, and be treated for all purposes as, a sale by
the Depositor of the undivided portion of the beneficial interest in the Trust
Fund represented by the Certificates. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Trust Fund by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor.
However, in the event that, notwithstanding the intent of the parties, the Trust
Fund is held to continue to be property of the Depositor then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Trust Fund provided for herein shall be deemed to be a grant by
the Depositor to the Trustee on behalf of Certificateholders of a first priority
security interest in all of the Depositor's right, title and interest in and to
the Trust Fund and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, Lower-Tier Distribution Account, Upper-Tier
Distribution Account, Class T Distribution Account and Excess Interest
Distribution Account, whether in the form of cash, instruments, securities or
other property; (c) the possession by the Trustee (or the Custodian on its
behalf) of Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the Delaware and Illinois Uniform Commercial Code; and (d)
notifications to Persons holding such property, and acknowledgments, receipts or
confirmations from Persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Any assignment of the
interest of the Trustee pursuant to any provision hereof shall also be deemed to
be an assignment of any security interest created hereby. The Depositor shall,
and upon the request of the Master Servicer, the Trustee shall, to the extent
consistent with this Agreement (and at the expense of the Trust Fund), take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement. It is
the intent of the parties that such a security interest would be effective
whether any of the Certificates are sold, pledged or assigned.
SECTION 10.09. No Intended Third-Party Beneficiaries.
No Person other than a party to this Agreement and any
Certificateholder shall have any rights with respect to the enforcement of any
of the rights or obligations hereunder.
Without limiting the foregoing, the parties to this Agreement
specifically state that no Borrower, property manager or other party to a
Mortgage Loan is an intended third-party beneficiary of this Agreement.
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the day
and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION,
as Depositor
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION,
as Master Servicer and as Special
Servicer
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
LASALLE NATIONAL BANK,
as Trustee, Custodian, Certificate
Registrar
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
ABN AMRO BANK N.V.,
as Fiscal Agent of the Trustee
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
ABN AMRO BANK N.V.,
as Fiscal Agent of the Trustee
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Group Vice President
EXHIBIT A-1
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-LL I, CLASS A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
PRINCIPAL AMOUNT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
STRUCTURED ASSET MORTGAGE SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS A-1
Certificate Interest Rate: 6.790%
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: Distribution Date
Class A-1 Certificates: in October 2031
$612,000,000
CUSIP: 863572 PN7 Initial Certificate Principal
Amount of this Certificate:
$[ ]
No.: [ ]
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-2, Class A-3, Class X-1,
Class B, Class C-1, Class C-2, Class X-2, Class D, Class E, Class F, Class T,
Class R, and Class LR Certificates, (together with the Class A-1 Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling
Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
l986, as amended.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class A-1 Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums, as provided in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to each Class of Group 1
Certificates is the period commencing on the tenth day of the month preceding
the month in which such Distribution Date occurs and ending on the ninth day of
the month which such Distribution Date occurs. Each Interest Accrual Period with
respect to each Class of Group 1 Certificates will be deemed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which the related Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
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Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and
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duties evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and Lower-Tier REMIC as a REMIC, or to
prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any
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material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates; or (vi) to make any other provisions with respect to matters
or questions arising under the Pooling Agreement, which shall not be
inconsistent with the provisions of the Pooling Agreement and will not result in
a downgrade, qualification or withdrawal of the then current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all
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Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all Certificates representing all Percentage Interests of
the Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more
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than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at the
related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage Interest in such Class, may also effect such
termination as provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Depositor nor the Master Servicer as the case may
be, terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to this Agreement or by the
Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling Agreement
shall be borne by the party exercising its purchase rights hereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this Class A-1
Certificate to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-1 Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto __________________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
A-1 Certificate of the entire Percentage Interest represented by the within
Class A-1 Certificates to the above-named Assignee(s) and to deliver such Class
A-1 Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
______________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately
available funds to __________________________ for the account of
__________________________ account number ____________________________.
This information is provided by ______________________________ the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-2
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-LL I, CLASS A-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
PRINCIPAL AMOUNT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
AND CERTAIN OTHER ASSETS.
STRUCTURED ASSET MORTGAGE SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS A-2
Certificate Interest Rate: 6.840%
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: Distribution Date
Class A-2 Certificates: in October 2031
$204,000,000
CUSIP: 863572 PP2 Initial Certificate Principal
Amount of this Certificate:
$204,000,000
No.: 1
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-3, Class X-1,
Class B, Class C-1, Class C-2, Class X-2, Class D, Class E, Class F, Class T,
Class R, and Class LR Certificates, (together with the Class A-2 Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling
Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class A-2 Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums, as provided in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to each Class of Group 1
Certificates is the period commencing on the tenth day of the month preceding
the month in which such Distribution Date occurs and ending on the ninth day of
the month which such Distribution Date occurs. Each Interest Accrual Period with
respect to each Class of Group 1 Certificates will be deemed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which the related Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
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Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and
-3-
duties evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and Lower-Tier REMIC as a REMIC, or to
prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any
-4-
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates; or (vi) to make any other provisions with respect to matters
or questions arising under the Pooling Agreement, which shall not be
inconsistent with the provisions of the Pooling Agreement and will not result in
a downgrade, qualification or withdrawal of the then current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all
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Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all Certificates representing all Percentage Interests of
the Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more
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than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at the
related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage Interest in such Class, may also effect such
termination as provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Depositor nor the Master Servicer as the case may
be, terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to this Agreement or by the
Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling Agreement
shall be borne by the party exercising its purchase rights hereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this Class A-2
Certificate to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-2 Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto __________________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
A-2 Certificate of the entire Percentage Interest represented by the within
Class A-2 Certificates to the above-named Assignee(s) and to deliver such Class
A-2 Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
______________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately
available funds to __________________________ for the account of
__________________________ account number ____________________________.
This information is provided by ______________________________ the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-3
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-LL I, CLASS A-3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
PRINCIPAL AMOUNT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
AND CERTAIN OTHER ASSETS.
STRUCTURED ASSET MORTGAGE SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS A-3
Certificate Interest Rate: 6.900%
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: Distribution Date
Class A-3 Certificates: in October 2031
$168,434,000
CUSIP: 863572 PQ0 Initial Certificate Principal
Amount of this Certificate:
$168,434,000
No.: 1
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-3 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class X-1,
Class B, Class C-1, Class C-2, Class X-2, Class D, Class E, Class F, Class T,
Class R, and Class LR Certificates, (together with the Class A-3 Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling
Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class A-3 Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums, as provided in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to each Class of Group 1
Certificates is the period commencing on the tenth day of the month preceding
the month in which such Distribution Date occurs and ending on the ninth day of
the month which such Distribution Date occurs. Each Interest Accrual Period with
respect to each Class of Group 1 Certificates will be deemed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which the related Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
-2-
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and
-3-
duties evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and Lower-Tier REMIC as a REMIC, or to
prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any
-4-
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates; or (vi) to make any other provisions with respect to matters
or questions arising under the Pooling Agreement, which shall not be
inconsistent with the provisions of the Pooling Agreement and will not result in
a downgrade, qualification or withdrawal of the then current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all
-5-
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all Certificates representing all Percentage Interests of
the Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more
-6-
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at the
related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage Interest in such Class, may also effect such
termination as provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Depositor nor the Master Servicer as the case may
be, terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to this Agreement or by the
Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling Agreement
shall be borne by the party exercising its purchase rights hereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Class A-3
Certificate to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-3 Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto __________________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-3 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
A-3 Certificate of the entire Percentage Interest represented by the within
Class A-3 Certificates to the above-named Assignee(s) and to deliver such Class
A-3 Certificate to the following address:
______________________________________________________________________________
______________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
______________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately
available funds to __________________________ for the account of
__________________________ account number ____________________________.
This information is provided by ______________________________ the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-4
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS X-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
THE HOLDERS OF THIS X-1 CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS OF
INTEREST ON THE NOTIONAL AMOUNT OF THE CLASS X-1 CERTIFICATES AND WILL NOT BE
ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE NOTIONAL AMOUNT OF
THE CLASS X-1 CERTIFICATES IS EQUAL TO THE AGGREGATE CERTIFICATE PRINCIPAL
AMOUNTS OF THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C-1, CLASS D,
CLASS E, AND CLASS F CERTIFICATES AS SET FORTH IN THE POOLING AGREEMENT REFERRED
TO BELOW. ACCORDINGLY, THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986.
THIS CLASS X-1 CERTIFICATE IS ISSUED ON OCTOBER 14, 1997, AT AN ISSUE PRICE OF
[ ]% OF THE INITIAL CLASS X-1 NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND
A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS
HEREON, AND IS ISSUED WITH ORIGINAL
ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THE
CERTIFICATE INTEREST RATE HEREON PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS
REFLECTING THE PREPAYMENT ASSUMPTION OF SCENARIO 1 (AS DESCRIBED IN THE
PROSPECTUS SUPPLEMENT DATED OCTOBER 10, 1997 WITH RESPECT TO THE OFFERING OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS X-1, CLASS B, CLASS C-1, CLASS C-2, CLASS
X-2, CLASS D, AND CLASS E CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE
AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL CLASS X-1 NOTIONAL AMOUNT IS
APPROXIMATELY [ ]%; AND (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY [ ]%. THERE IS NO SHORT FIRST ACCRUAL
PERIOD.
-2-
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS X-1
Certificate Interest Rate: 0.956%
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Notional Amount of the Distribution Date: Distribution Date
Class X-1 Certificates: in October 2031
$1,376,717,068
CUSIP: 863572 PR8 Initial Notional
Amount of this Certificate:
$[ ]
No.: [ ]
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class X-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class B, Class C-1, Class C-2, Class X-2, Class D, Class E, Class F, Class T,
Class R, and Class LR Certificates (together with the Class X-1 Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling
Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of interest then
distributable, if any, allocable to the Class X-1 Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums, as provided in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to each Class of Group 1
Certificates is the period commencing on the tenth day of the month preceding
the month in which such Distribution Date occurs and ending on the ninth day of
the month which such Distribution Date occurs. Each Interest Accrual Period with
respect to each Class of Group 1 Certificates will be deemed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to
-2-
Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
-3-
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or
-4-
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (vi) to make any other
provisions with respect to matters or questions arising under the Pooling
Agreement, which shall not be inconsistent with the provisions of the Pooling
Agreement and will not result in a downgrade, qualification or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, as confirmed by each Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of
the Percentage Interests of the Class or Classes affected
thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all
-5-
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of
the month preceding such Distribution Date, together with one
month's interest thereon at the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage
-6-
Interest in such Class, may also effect such termination as provided above if it
first notifies the Depositor, or the Depositor and the Master Servicer,
respectively, through the Trustee of its intention to do so in writing at least
30 days prior to the Early Termination Notice Date and neither the Depositor nor
the Master Servicer as the case may be, terminates the Trust Fund as described
above within such 30-day period. All costs and expenses incurred by any and all
parties to this Agreement or by the Trust Fund in connection with the purchase
of the Mortgage Loans and other assets of the Trust Fund pursuant to Section
9.01(c) of the Pooling Agreement shall be borne by the party exercising its
purchase rights hereunder. The Trustee shall be entitled to rely conclusively on
any determination made by an Independent appraiser pursuant to Section 9.01(c)
of the Pooling Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Class X-1
Certificate to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class X-1 Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ____________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class X-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
X-1 Certificate of the entire Percentage Interest represented by the within
Class X-1 Certificates to the above-named Assignee(s) and to deliver such Class
X-1 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
______________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
______________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ____________________ for the account of ____________________
account number ____________________________.
This information is provided by ____________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-5
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS B
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CLASS B CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF
CERTIFICATES TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR
SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
SECTION 4975 OF THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION
LETTER, SUBSTANTIALLY IN THE FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT
REFERRED TO HEREIN, STATING THAT SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE, OR (II) AN OPINION OF COUNSEL WHICH
ESTABLISHES TO THE SATISFACTION OF THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND
THE TRUSTEE THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN
THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO
TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION
4975 OF THE CODE OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND
WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE
TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW)
IN ADDITION TO THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF
COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER
SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH
TRANSFEREE OF A BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT
IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
AND CERTAIN OTHER ASSETS.
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS B
Certificate Interest Rate: 6.950%
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: Distribution Date
Class B Certificates: in October 2031
$114,138,000
CUSIP: 863572 PS6 Initial Certificate Principal
Amount of this Certificate:
$114,138,000
No.: 1
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class B Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X-1, Class C-1, Class C-2, Class X-2, Class D, Class E, Class F, Class T,
Class R, and Class LR Certificates (together with the Class B Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class B Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums, as provided in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to each Class of Group 1
Certificates is the period commencing on the tenth day of the month preceding
the month in which such Distribution Date occurs and ending on the ninth day of
the month which such Distribution Date occurs. Each Interest Accrual Period with
respect to each Class of Group 1 Certificates will be deemed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to
-2-
Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
-3-
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or
-4-
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (vi) to make any other
provisions with respect to matters or questions arising under the Pooling
Agreement, which shall not be inconsistent with the provisions of the Pooling
Agreement and will not result in a downgrade, qualification or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, as confirmed by each Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of
the Percentage Interests of the Class or Classes affected
thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all
-5-
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of
the month preceding such Distribution Date, together with one
month's interest thereon at the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage
-6-
Interest in such Class, may also effect such termination as provided above if it
first notifies the Depositor, or the Depositor and the Master Servicer,
respectively, through the Trustee of its intention to do so in writing at least
30 days prior to the Early Termination Notice Date and neither the Depositor nor
the Master Servicer as the case may be, terminates the Trust Fund as described
above within such 30-day period. All costs and expenses incurred by any and all
parties to this Agreement or by the Trust Fund in connection with the purchase
of the Mortgage Loans and other assets of the Trust Fund pursuant to Section
9.01(c) of the Pooling Agreement shall be borne by the party exercising its
purchase rights hereunder. The Trustee shall be entitled to rely conclusively on
any determination made by an Independent appraiser pursuant to Section 9.01(c)
of the Pooling Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Class B Certificate
to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
_____________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
B Certificate of the entire Percentage Interest represented by the within Class
B Certificates to the above-named Assignee(s) and to deliver such Class B
Certificate to the following address:
_____________________________________________________________________________
_____________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
______________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
______________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ___________________________ for the account of
_____________________________ account number __________________________.
This information is provided by __________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-6
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS C-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CLASS C-1 CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF
CERTIFICATES TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR
SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
SECTION 4975 OF THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION
LETTER, SUBSTANTIALLY IN THE FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT
REFERRED TO HEREIN, STATING THAT SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE, OR (II) AN OPINION OF COUNSEL WHICH
ESTABLISHES TO THE SATISFACTION OF THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND
THE TRUSTEE THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN
THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO
TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION
4975 OF THE CODE OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND
WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE
TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW)
IN ADDITION TO THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF
COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER
SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH
TRANSFEREE OF A BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT
IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
AND CERTAIN OTHER ASSETS.
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS C-1
Certificate Interest Rate: 7.000%
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: Distribution Date
Class C-1 Certificates: in October 2031
$49,870,000
CUSIP: 863572 PT4 Initial Certificate Principal
Amount of this Certificate:
$49,870,000
No.: 1
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class C-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X-1, Class B, Class C-2, Class X-2, Class D, Class E, Class F, Class T,
Class R, and Class LR Certificates (together with the Class C-1 Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling
Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class C-1Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums, as provided in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to each Class of Group 1
Certificates is the period commencing on the tenth day of the month preceding
the month in which such Distribution Date occurs and ending on the ninth day of
the month which such Distribution Date occurs. Each Interest Accrual Period with
respect to each Class of Group 1 Certificates will be deemed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to
-2-
Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
-3-
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or
-4-
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (vi) to make any other
provisions with respect to matters or questions arising under the Pooling
Agreement, which shall not be inconsistent with the provisions of the Pooling
Agreement and will not result in a downgrade, qualification or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, as confirmed by each Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of
the Percentage Interests of the Class or Classes affected
thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all
-5-
Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of
the month preceding such Distribution Date, together with one
month's interest thereon at the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage
-6-
Interest in such Class, may also effect such termination as provided above if it
first notifies the Depositor, or the Depositor and the Master Servicer,
respectively, through the Trustee of its intention to do so in writing at least
30 days prior to the Early Termination Notice Date and neither the Depositor nor
the Master Servicer as the case may be, terminates the Trust Fund as described
above within such 30-day period. All costs and expenses incurred by any and all
parties to this Agreement or by the Trust Fund in connection with the purchase
of the Mortgage Loans and other assets of the Trust Fund pursuant to Section
9.01(c) of the Pooling Agreement shall be borne by the party exercising its
purchase rights hereunder. The Trustee shall be entitled to rely conclusively on
any determination made by an Independent appraiser pursuant to Section 9.01(c)
of the Pooling Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Class C-1
Certificate to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class C-1 Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class C_1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
C-1 Certificate of the entire Percentage Interest represented by the within
Class C-1 Certificates to the above-named Assignee(s) and to deliver such Class
C-1 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
______________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
______________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ___________________________ for the account of
_____________________________ account number __________________________.
This information is provided by __________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-7
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS C-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE
UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE
OF THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE
CERTIFICATE REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER,
SUBSTANTIALLY IN THE FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT REFERRED TO
HEREIN, STATING THAT SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN
CLAUSE (A) OR (B) ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE
SATISFACTION OF THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT
THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF
THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA,
SECTION 4975 OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE
OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT
THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
AND CERTAIN OTHER ASSETS.
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS C-2
Certificate Interest Rate: 6.055%
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: Distribution Date
Class C-2 Certificates: in October 2031
$50,000,000
CUSIP: 863572 PU1 Initial Certificate Principal
Amount of this Certificate:
$50,000,000
No.: 1
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class C-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X-1, Class B, Class C-1, Class X-2, Class D, Class E, Class F, Class T,
Class R, and Class LR Certificates (together with the Class C-2 Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling
Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class C-2 Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class C-2 and Class X-2
Certificates is the period commencing on and including the 12th day of the month
preceding the month in which such Distribution Date occurs and ending on and
including the eleventh day of the month which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the
-2-
remaining Certificateholders, at their last addresses shown in the Certificate
Register, to surrender their Certificates for cancellation in order to receive,
from such funds held, the final distribution with respect thereto. If within one
year after the second notice any Certificate shall not have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an
-3-
assignment and transfer (executed by the Holder or his duly authorized
attorney), subject to the applicable requirements in Article V of the Pooling
Agreement. Upon surrender for registration of transfer of this Certificate,
subject to the applicable requirements of Article V of the Pooling Agreement,
the Trustee shall execute and the Authenticating Agent shall duly authenticate
in the name of the designated transferee or transferees, one or more new
Certificates in Denominations of a like aggregate Denomination of this
Certificate. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates, or (vi) to make any other provisions with respect to matters
or questions arising under the Pooling Agreement, which shall not be
inconsistent with
-4-
the provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of
the Percentage Interests of the Class or Classes affected
thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all Certificates representing all Percentage Interests of
the Class or Classes affected thereby.
-5-
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of
the month preceding such Distribution Date, together with one
month's interest thereon at the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage Interest in such Class, may also effect such
termination as provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and
-6-
neither the Depositor nor the Master Servicer as the case may be, terminates the
Trust Fund as described above within such 30-day period. All costs and expenses
incurred by any and all parties to this Agreement or by the Trust Fund in
connection with the purchase of the Mortgage Loans and other assets of the Trust
Fund pursuant to Section 9.01(c) of the Pooling Agreement shall be borne by the
party exercising its purchase rights hereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser pursuant
to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Class C-2
Certificate to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class C-2 Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class C-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
C-2 Certificate of the entire Percentage Interest represented by the within
Class C-2 Certificates to the above-named Assignee(s) and to deliver such Class
C-2 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
______________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
______________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ___________________________ for the account of
_____________________________ account number __________________________.
This information is provided by __________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-8
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS X-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
THE HOLDERS OF THIS X-2 CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS OF
INTEREST ON THE NOTIONAL AMOUNT OF THE CLASS X-2 CERTIFICATES AND WILL NOT BE
ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE NOTIONAL AMOUNT OF
THE CLASS X-2 CERTIFICATES THROUGH AND INCLUDING THE DISTRIBUTION DATE IN JULY
2004 IS EQUAL TO THE CERTIFICATE PRINCIPAL AMOUNT OF THE CLASS C-2 CERTIFICATES.
ACCORDINGLY, THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY
BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW. UNLESS THE NOTIONAL
AMOUNT OF THE CLASS X-2 CERTIFICATES HAS BEEN REDUCED TO ZERO PRIOR TO SUCH
DATE, THE CLASS X-2 CERTIFICATES WILL BE RETIRED FOLLOWING DISTRIBUTIONS ON THE
DISTRIBUTION DATE IN JULY 2004.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
[THIS CLASS X-2 CERTIFICATE IS ISSUED ON OCTOBER 14, 1997, AT AN ISSUE PRICE OF
[ ]% OF THE INITIAL CLASS X-2 NOTIONAL AMOUNT, INCLUDING
ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ALL
INTEREST DISTRIBUTIONS HEREON, AND IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES.] ASSUMING THAT THE CERTIFICATE INTEREST
RATE HEREON PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION OF SCENARIO 1 (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT
DATED OCTOBER 10, 1997 WITH RESPECT TO THE OFFERING OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS X-1, CLASS B, CLASS C-1, CLASS C-2, CLASS X-2, CLASS D, AND
CLASS E CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL CLASS X-2 NOTIONAL AMOUNT IS APPROXIMATELY [ ]%; AND
(II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY [ ]%. THERE IS NO SHORT FIRST ACCRUAL PERIOD.
-2-
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS X-2
Certificate Interest Rate: 0.102%
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Notional Amount of the Distribution Date: Distribution Date
Class X-2 Certificates: in October 2031
$50,000,000
CUSIP: 863572 PV9 Initial Notional
Amount of this Certificate:
$50,000,000
No.: 1
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class X-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class B, Class C-1, Class C-2, Class X-1, Class D, Class E, Class F, Class T,
Class R, and Class LR Certificates (together with the Class X-2 Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling
Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of interest then
distributable, if any, allocable to the Class X-2 Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Unless
the Notional Amount of the Class X-2 Certificates has been reduced to zero prior
to such date, the Class X-2 Certificates will be retired following distributions
on the Distribution Date in July 2004.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class C-2 and Class X-2
Certificates is the period commencing on and including the 12th day of the month
preceding the month in which such Distribution Date occurs and ending on and
including the eleventh day of the month which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to
-2-
Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
-3-
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or
-4-
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (vi) to make any other
provisions with respect to matters or questions arising under the Pooling
Agreement, which shall not be inconsistent with the provisions of the Pooling
Agreement and will not result in a downgrade, qualification or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, as confirmed by each Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of
the Percentage Interests of the Class or Classes affected
thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all
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Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of
the month preceding such Distribution Date, together with one
month's interest thereon at the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage
-6-
Interest in such Class, may also effect such termination as
provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days
prior to the Early Termination Notice Date and neither the
Depositor nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all
parties to this Agreement or by the Trust Fund in connection
with the purchase of the Mortgage Loans and other assets of
the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase
rights hereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling
Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
Certificate to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class X-2 Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ____________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class X-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
X-2 Certificate of the entire Percentage Interest represented by the within
Class X-2 Certificates to the above-named Assignee(s) and to deliver such Class
X-2 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
______________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
______________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ____________________ for the account of ____________________
account number ____________________________.
This information is provided by ____________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-9
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS D
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS D CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR
SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
SECTION 4975 OF THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION
LETTER, SUBSTANTIALLY IN THE FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT
REFERRED TO HEREIN, STATING THAT SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE, OR (II) AN OPINION OF COUNSEL WHICH
ESTABLISHES TO THE SATISFACTION OF THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND
THE TRUSTEE THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN
THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO
TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION
4975 OF THE CODE OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND
WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE
TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW)
IN ADDITION TO THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF
COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER
SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH
TRANSFEREE OF A BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT
IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
AND CERTAIN OTHER ASSETS.
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS D
Certificate Interest Rate: 7.150%
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: Distribution Date
Class D Certificates: in October 2031
$114,137,000
CUSIP: 863572 PW7 Initial Certificate Principal
Amount of this Certificate:
$114,137,000
No.: 1
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class D Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X-1, Class B, Class C-1, Class C-2, Class X-2, Class E, Class F, Class T,
Class R, and Class LR Certificates (together with the Class D Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class D Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums, as provided in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to each Class of Group 1
Certificates is the period commencing on the tenth day of the month preceding
the month in which such Distribution Date occurs and ending on the ninth day of
the month which such Distribution Date occurs. Each Interest Accrual Period with
respect to each Class of Group 1 Certificates will be deemed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to
-2-
Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
-3-
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or
-4-
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (vi) to make any other
provisions with respect to matters or questions arising under the Pooling
Agreement, which shall not be inconsistent with the provisions of the Pooling
Agreement and will not result in a downgrade, qualification or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, as confirmed by each Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of
the Percentage Interests of the Class or Classes affected
thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all
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Certificates representing all Percentage Interests of the
Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of
the month preceding such Distribution Date, together with one
month's interest thereon at the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage
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Interest in such Class, may also effect such termination as
provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days
prior to the Early Termination Notice Date and neither the
Depositor nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such
30-day period. All costs and expenses incurred by any and all
parties to this Agreement or by the Trust Fund in connection
with the purchase of the Mortgage Loans and other assets of
the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase
rights hereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling
Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this Class D Certificate
to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class D Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class D Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
D Certificate of the entire Percentage Interest represented by the within Class
D Certificates to the above-named Assignee(s) and to deliver such Class D
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ___________________________ for the account of
_____________________________ account number __________________________.
This information is provided by __________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-10
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS E
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS E CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR
SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
SECTION 4975 OF THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO
THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION
LETTER, SUBSTANTIALLY IN THE FORM OF EXHIBIT D-2 TO THE POOLING AGREEMENT
REFERRED TO HEREIN, STATING THAT SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE, OR (II) AN OPINION OF COUNSEL WHICH
ESTABLISHES TO THE SATISFACTION OF THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND
THE TRUSTEE THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN
THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO
TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION
4975 OF THE CODE OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND
WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE
TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW)
IN ADDITION TO THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF
COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER
SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE REGISTRAR OR THE DEPOSITOR. EACH
TRANSFEREE OF A BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT
IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
AND CERTAIN OTHER ASSETS.
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS E
Pass-Through Rate: Lower of 7.300% or
Group 1 WAC Rate
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: Distribution Date
Class E Certificates: in October 2031
$42,802,000
CUSIP: 863572 PX5 Initial Certificate Principal
Amount of this Certificate:
$42,802,000
No.: 1
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class E Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X-1, Class B, Class C-1, Class C-2, Class X-2, Class D, Class F, Class T,
Class R, and Class LR Certificates (together with the Class E Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class E Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums, as provided in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to each Class of Group 1
Certificates is the period commencing on the tenth day of the month preceding
the month in which such Distribution Date occurs and ending on the ninth day of
the month which such Distribution Date occurs. Each Interest Accrual Period with
respect to each Class of Group 1 Certificates will be deemed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
-2-
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and
-3-
duties evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any
-4-
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates, or (vi) to make any other provisions with respect to matters
or questions arising under the Pooling Agreement, which shall not be
inconsistent with the provisions of the Pooling Agreement and will not result in
a downgrade, qualification or withdrawal of the then current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the ameodment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all
-5-
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all Certificates representing all Percentage Interests of
the Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more
-6-
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at the
related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage Interest in such Class, may also effect such
termination as provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Depositor nor the Master Servicer as the case may
be, terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to this Agreement or by the
Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling Agreement
shall be borne by the party exercising its purchase rights hereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Class E Certificate
to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class E Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class E Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
E Certificate of the entire Percentage Interest represented by the within Class
E Certificates to the above-named Assignee(s) and to deliver such Class E
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ___________________________ for the account of
_____________________________ account number __________________________.
This information is provided by __________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-11
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS F
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN
INSTITUTIONAL INVESTOR THAT IS, OR ALL THE EQUITY OWNERS OF WHICH ARE,
INSTITUTIONAL "ACCREDITED INVESTORS" AS SUCH TERM IS DEFINED IN RULE
501(A)(1),(2),(3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) OR (3) BY AN INITIAL INVESTOR
THAT IS A QIB, TO AN INSTITUTIONAL ACCREDITED INVESTOR AND (B) IN ACCORDANCE
WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF EXHIBIT D-2 TO THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN,
STATING THAT SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE
(A) OR (B) ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE
SATISFACTION OF THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT
THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF
THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA,
SECTION 4975 OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE
OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT
THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT, WHICH
OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE REGISTRAR OR THE
DEPOSITOR. EACH TRANSFEREE OF A BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
AND CERTAIN OTHER ASSETS.
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS F
Pass-Through Rate: Lower of 7.300%
or Group 1 WAC Rate.
First Distribution Date: Cut-Off Date: October 11, 1997
November 13, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: Distribution Date
Class F Certificates: in October 2031
$ 71,336,068
CUSIP: 863572 PY3 Initial Certificate Principal
Amount of this Certificate:
$ 71,336,068
No.: 1
This certifies that CEDE & CO. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class F Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X-1, Class B, Class C-1, Class C-2, Class X-2, Class D, Class E, Class T,
Class R, and Class LR Certificates (together with the Class F Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structure Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "regular interest" in a "real estate mortgage investment conduit," as those
terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person in whose name this
Certificate is registered as of the related Record Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class F Certificates for such
Distribution Date, all as more fully described in the Pooling Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums, as provided in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to each Class of Group 1
Certificates is the period commencing on the tenth day of the month preceding
the month in which such Distribution Date occurs and ending on the ninth day of
the month which such Distribution Date occurs. Each Interest Accrual Period with
respect to each Class of Group 1 Certificates will be deemed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
-2-
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and
-3-
duties evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any
-4-
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates, or (vi) to make any other provisions with respect to matters
or questions arising under the Pooling Agreement, which shall not be
inconsistent with the provisions of the Pooling Agreement and will not result in
a downgrade, qualification or withdrawal of the then current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all
-5-
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all Certificates representing all Percentage Interests of
the Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more
-6-
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon at the
related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage Interest in such Class, may also effect such
termination as provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Depositor nor the Master Servicer as the case may
be, terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to this Agreement or by the
Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling Agreement
shall be borne by the party exercising its purchase rights hereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Class F Certificate
to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class F Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class F Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
F Certificate of the entire Percentage Interest represented by the within Class
F Certificates to the above-named Assignee(s) and to deliver such Class F
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ___________________________ for the account of
_____________________________ account number __________________________.
This information is provided by __________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-12
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS T
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN
INSTITUTIONAL INVESTOR THAT IS, OR ALL THE EQUITY OWNERS OF WHICH ARE,
INSTITUTIONAL "ACCREDITED INVESTORS" AS SUCH TERM IS DEFINED IN RULE
501(A)(1),(2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) OR (3) BY AN
INITIAL INVESTOR THAT IS A QIB, TO AN INSTITUTIONAL ACCREDITED INVESTOR AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY THAT IS USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO
INCLUDE ASSETS OF
PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
ANY SUCH PLAN. EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE REQUIRED
TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE, (I) A
REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM OF EXHIBIT D-2 TO THE POOLING
AGREEMENT REFERRED TO HEREIN, STATING THAT SUCH PROSPECTIVE TRANSFEREE IS NOT A
PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE, OR (II) AN OPINION OF COUNSEL
WHICH ESTABLISHES TO THE SATISFACTION OF THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL
NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA OR
SECTION 4975 OF THE CODE OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR
LAW, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL SERVICER, THE
DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AGREEMENT,
WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE TRUST FUND,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE REGISTRAR OR THE
DEPOSITOR. EACH TRANSFEREE OF A BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS T
Percentage Interest: 100% Cut-Off Date: October 11, 1997
No.: 1
CUSIP: 863572 QA4
This certifies that [ ] is the registered owner of an
interest in a Trust Fund, including the distributions to be made with respect to
the Class T Certificates. The Trust Fund, described more fully below, consists
primarily of a pool of Mortgage Loans secured by first liens on commercial
properties and held in trust by the Trustee and serviced by the Master Servicer.
The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling Agreement and is bound thereby. Also issued under the Pooling
Agreement are the Class A-1, Class A-2, Class A-3, Class X-1, Class B, Class
C-1, Class C-2, Class X-2, Class D, Class E, Class F, Class R, and Class LR
Certificates (together with the Class T Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
This Certificate represents a pro rata undivided interest in the
Default Interest, subject to the obligation to pay certain amounts as set forth
in Section 3.05(c) of the Pooling and Servicing Agreement. Pursuant to the terms
of the Pooling Agreement, the Trustee, or the Paying Agent on behalf of the
Trustee, will distribute (other than the final distribution on any Certificate),
on the second Business Day following the 10th day of each month (or, if the 10th
day is not a Business Day, the third Business Day immediately following the 10th
day of the month), commencing in November 1997 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of Net Default Interest then distributable,
if any, allocable to the Class T Certificates for such Distribution Date, all as
more fully described in the Pooling Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in
-2-
respect of the Mortgage Loans due after the Cut-Off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) the
Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guaranties given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Lock-Box Accounts, Escrow Accounts, Reserve Accounts (to the extent such
assets in such accounts are not assets of the respective Borrowers), the
Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Class T Distribution Account, and any REO Account including
reinvestment income thereon; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the Loan
Sale Agreement; (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Escrow Accounts, and any
Reserve Accounts, to the extent such interest belongs to the related Borrower);
and (xii) all of the mortgagee's right, title and interest under any Interest
Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided
-3-
therein. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. The Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates, or (vi) to make any other provisions with respect to matters
or questions arising under the Pooling Agreement, which shall not be
inconsistent with the provisions of the Pooling Agreement and will not result in
a downgrade, qualification or withdrawal of the then current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the ameodment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the
-4-
provisions of the Pooling Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of
the Percentage Interests of the Class or Classes affected
thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all Certificates representing all Percentage Interests of
the Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
-5-
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of
the month preceding such Distribution Date, together with one
month's interest thereon at the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage Interest in such Class, may also effect such
termination as provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Depositor nor the Master Servicer as the case may
be, terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to this Agreement or by the
Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling Agreement
shall be borne by the party exercising its purchase rights hereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
-6-
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Class T Certificate
to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class T Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class T Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
T Certificate of the entire Percentage Interest represented by the within Class
T Certificates to the above-named Assignee(s) and to deliver such Class T
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ___________________________ for the account of
_____________________________ account number __________________________.
This information is provided by __________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-13
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS R
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE
144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY THAT IS USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN. EACH PROSPECTIVE TRANSFEREE OF THIS
CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE A REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM OF
EXHIBIT D-2 TO THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, STATING
THAT SUCH
PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION
5.02(1) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH
AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN), (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT
INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME
DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT
IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS
SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST",
AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-l(c), TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED TO CONSENT TO
ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND TO THE APPOINTMENT OF
THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS PERSON OR AS
OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO PERFORM THE
FUNCTIONS OF A "TAX MATTERS PERSON" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63
OF SUBTITLE F OF THE CODE.
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS R
Percentage Interest: 100%
No.: 1
CUSIP: 863572 QC0
This certifies that [ ] is the registered owner of an
interest in a Trust Fund, including the distributions to be made with respect to
the Class R Certificates. The Trust Fund, described more fully below, consists
primarily of a pool of Mortgage Loans secured by first liens on commercial
properties and held in trust by the Trustee and serviced by the Master Servicer.
The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling Agreement and is bound thereby. Also issued under the Pooling
Agreement are the Class A-1, Class A-2, Class A-3, Class X-1, Class B, Class
C-1, Class C-2, Class X-2, Class D, Class E, Class F, Class T, and Class LR
Certificates (together with the Class R Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "residual interest" in a "real estate mortgage investment conduit," as
those terms are defined, respectively, in Sections 860G(a)(2) and 860D of the
Internal Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person
in whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of the aggregate amount, if any, allocable to
the Class R Certificates for such Distribution Date, all as more fully described
in the Pooling Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
-2-
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
-3-
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates, or (vi) to make any other provisions with respect to matters
or questions arising under the Pooling Agreement, which shall not be
inconsistent with the provisions of the Pooling Agreement and will not result in
a downgrade, qualification or withdrawal of the then current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the
-4-
Fiscal Agent with the consent of the Holders of Certificates evidencing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling Agreement or of
modifying in any manner the rights of the Certificateholders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of
the Percentage Interests of the Class or Classes affected
thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all Certificates representing all Percentage Interests of
the Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
-5-
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of
the month preceding such Distribution Date, together with one
month's interest thereon at the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage Interest in such Class, may also effect such
termination as provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Depositor nor the Master Servicer as the case may
be, terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to this Agreement or by the
Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling Agreement
shall be borne by the party exercising its purchase rights hereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
-6-
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Class R Certificate
to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class R Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class R Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
R Certificate of the entire Percentage Interest represented by the within Class
R Certificates to the above-named Assignee(s) and to deliver such Class R
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
__________________________________________
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ___________________________ for the account of
_____________________________ account number __________________________.
This information is provided by __________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT A-14
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS LR
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE UNDERWRITER
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE
144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY THAT IS USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN. EACH PROSPECTIVE TRANSFEREE OF THIS
CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE A REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM OF
EXHIBIT D-2 TO THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, STATING
THAT SUCH
PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION
5.02(1) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH
AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN), (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT
INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME
DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT
IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS
SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST",
AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-l(c), TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED TO CONSENT TO
ACT AS "TAX MATTERS PERSON" OF THE LOWER-TIER REMIC AND TO THE APPOINTMENT OF
THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS PERSON OR AS
OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO PERFORM THE
FUNCTIONS OF A "TAX MATTERS PERSON" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63
OF SUBTITLE F OF THE CODE.
STRUCTURED ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-LL I, CLASS LR
Percentage Interest: 100%
No.: 1
CUSIP: 863572 QE6
This certifies that [ ] is the registered owner of an
interest in a Trust Fund, including the distributions to be made with respect to
the Class LR Certificates. The Trust Fund, described more fully below, consists
primarily of a pool of Mortgage Loans secured by first liens on commercial
properties and held in trust by the Trustee and serviced by the Master Servicer.
The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling Agreement and is bound thereby. Also issued under the Pooling
Agreement are the Class A-1, Class A-2, Class A-3, Class X-1, Class B, Class
C-1, Class C-2, Class X-2, Class D, Class E, Class F, Class T, and Class R
Certificates (together with the Class LR Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement, dated as of October 11, 1997 (the
"Pooling Agreement"), by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest
in a "residual interest" in a "real estate mortgage investment conduit," as
those terms are defined, respectively, in Sections 860G(a)(2) and 860D of the
Internal Revenue Code of l986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the
Paying Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the second Business Day following the 10th
day of each month (or, if the 10th day is not a Business Day, the third Business
Day immediately following the 10th day of the month), commencing in November
1997 (each such date, a "Distribution Date"), to the Person
in whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of the aggregate amount, if any, allocable to
the Class LR Certificates for such Distribution Date, all as more fully
described in the Pooling Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month immediately preceding
the month in which such Distribution Date occurs, or if such day is not a
Business Day, the immediately preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date (a) by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor, if such Certificateholder provides the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date,
or otherwise (b) by check mailed to such Certificateholder. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to Section 9.01 of the Pooling Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at their
last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Class R
Certificateholders all amounts distributable to the Holders thereof. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 9.01 of the Pooling Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling Agreement.
-2-
As provided in the Pooling Agreement, the Trust Fund includes (i)
such Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date; (iii) any REO Property; (iv) all revenues received in
respect of any REO Property; (v) the Master Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling Agreement and any proceeds thereof; (vi) any
Assignments of Leases, Rents and Profits and any security agreements; (vii) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(viii) all assets deposited in the Lock-Box Accounts, Escrow Accounts, Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Interest Reserve Account, the Class T Distribution Account, and any
REO Account including reinvestment income thereon; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Loan Sale Agreement; (xi) the proceeds of any of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Escrow Accounts, and any Reserve Accounts, to the extent such interest belongs
to the related Borrower); and (xii) all of the mortgagee's right, title and
interest under any Interest Rate Cap Agreement.
This Certificate does not purport to summarize the Pooling
Agreement, and reference is made to the Pooling Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the applicable requirements
in Article V of the Pooling Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the applicable requirements of Article
V of the Pooling Agreement, the Trustee shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination of this Certificate. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e) of the Pooling
Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent 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, any Paying Agent or any agent of any of them shall be affected by any
notice or knowledge to the contrary.
-3-
No fee or service shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders; (i) to cure any ambiguity; (ii) to correct or supplement any
provisions in the Pooling Agreement or any Custodial Agreement that may be
defective or inconsistent with any other provisions in such agreement; (iii) to
amend any provision thereof to the extent necessary or desirable to maintain the
status of each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or
to prevent the imposition of any material state or local taxes; (iv) to amend or
supplement any provisions in either of such agreements to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; (v) to amend or supplement any provisions
in either of such agreements that shall not adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, as
evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates, or (vi) to make any other provisions with respect to matters
or questions arising under the Pooling Agreement, which shall not be
inconsistent with the provisions of the Pooling Agreement and will not result in
a downgrade, qualification or withdrawal of the then current rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing.
Further, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs or of
the Grantor Trust as a grantor trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the
-4-
Fiscal Agent with the consent of the Holders of Certificates evidencing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling Agreement or of
modifying in any manner the rights of the Certificateholders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
Holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling Agreement, without the consent of
all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal
Agent to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of
the Percentage Interests of the Class or Classes affected
thereby; or
(iv) amend any section of the Pooling Agreement which relates to
the amendment thereof, without the consent of all the Holders
of all Certificates representing all Percentage Interests of
the Class or Classes affected thereby.
The Depositor may effect an early termination of the Trust Fund,
upon not less than 30 days' prior notice given to the Trustee and Master
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-Off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
-5-
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of the
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired by the Trust Fund) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the Pooling
Agreement with interest on all unreimbursed Advances at
the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans , and all
other property acquired in respect of any Mortgage Loan in the Trust
Fund, on the last day of the month preceding such Distribution Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of
the month preceding such Distribution Date, together with one
month's interest thereon at the related Mortgage Rates.
The Master Servicer or, if the Master Servicer does not, any Holder
of the most subordinate Class of Certificates then outstanding representing
greater than a 50% Percentage Interest in such Class, may also effect such
termination as provided above if it first notifies the Depositor, or the
Depositor and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Depositor nor the Master Servicer as the case may
be, terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to this Agreement or by the
Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling Agreement
shall be borne by the party exercising its purchase rights hereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
-6-
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the Fiscal Agent
created by the Pooling Agreement with respect to the Certificates (other than
the obligation to make certain payments and to send certain notices to
Certificateholders as set forth in the Pooling Agreement) shall terminate
immediately following the occurrence of the last action required to be taken by
the Trustee pursuant to Article IX of the Pooling Agreement on the Termination
Date; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of twenty-one years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date of the Pooling
Agreement.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling Agreement or be valid for any purpose.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Class LR Certificate
to be duly executed.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class LR Certificates referred to in the Pooling
Agreement.
Dated: October 14, 1997
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:_______________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class LR Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
LR Certificate of the entire Percentage Interest represented by the within Class
LR Certificates to the above-named Assignee(s) and to deliver such Class LR
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date: _________________ __________________________________________
Signature by or on behalf of
Assignor(s)
------------------------------------------
Taxpayer Identification Number
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:_________________________________________________________________
________________________________________________________________________________
Address of the Assignee(s) for the purpose of receiving notices
and distributions:____________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately
available funds to ___________________________ for the account of
_____________________________ account number __________________________.
This information is provided by __________________________ the
Assignee(s) named above, or ________________________________________________ as
its (their) agent.
By:_______________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
EXHIBIT B
Mortgage Loan Schedule
--------------------------------------------------------------------------------------------------------------------------
Cut-off Date Cut-off Date Cut-off Date Original Original Term
Loan Mortgage Annual Mortgage Default Net Mortgage Principal to Final
No. Loan & Borrower Payment (1) Rate Rate Rate Balance Maturity Date
--------------------------------------------------------------------------------------------------------------------------
1 DDR/DRA Loan (a) 24,124,522.92 7.37800% (2) 7.35900% 322,500,000.00 60
2 Courtyard Loan (b) 32,641,878.51 7.86500% (3) 7.84600% 325,000,000.00 240
3 Worldwide Plaza (c)
Loan
Fixed Component A 15,289,844.64 7.92000% (4) 7.90100% 120,000,000.00 240
LIBOR Component 3,146,223.95 LIBOR +0.55%(6) (7) 6.18725% 50,000,000.00 240
Fixed Component B 8,431,500.00 7.92000% (4) 7.90100% 105,000,000.00 240
4 Xxxxxxxx Loan (d) 13,839,359.26 7.57900% (8) 7.56000% 180,000,000.00 359
5 Arden Loan (e) 13,342,777.78 7.52000% (9) 7.50100% 175,000,000.00 383
6 Xxxxx Xxxxxx Loan (f) 4,248,701.39 7.22500% (10) 7.20600% 58,000,000.00 409
7 Valley View Loan (g) 4,079,787.50 7.89000% (11) 7.87100% 51,000,000.00 413
8 Sun Communities (h) 3,639,831.14 7.01000% (12) 6.99100% 45,000,000.00 360
Loan
Total: 122,784,427.09 1,431,600,000.00
============== ================
--------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Cut-off Date Cut-off Date Wtd. Avg.
Remaining Term Final Original Remaining Cut-off Date Cut-off Date Number of
Loan Mortgage to Final Maturity Amortization Amortization Principal Loan-to-Value Mortgaged
No. Loan & Borrower Maturity Date Date Term Term Balance Ratio (%) Properties
-----------------------------------------------------------------------------------------------------------------------------------
1 DDR/DRA Loan 56 June 10, 2002 N/A N/A 322,500,000.00 61.2 10
2 Courtyard Loan 234 April 10, 2017 240 234 321,577,850.48 56.5 50
3 Worldwide Plaza
Loan
Fixed Component A 237 July 10, 2017 240 (5) 237 118,576,031.19 65.8 1
LIBOR Component 237 July 10, 2017 240 (5) 237 50,000,000.00 65.8
Fixed Component B 237 July 10, 2017 N/A (5) N/A 105,000,000.00 65.8
4 Xxxxxxxx Loan 352 February 26, N/A N/A 180,100,000.00 60.9 54
2027
5 Arden Loan 380 June 10, 2029 N/A N/A 175,000,000.00 51.4 17
6 Xxxxx Xxxxxx Loan 408 October 10, N/A N/A 58,000,000.00 57.4 1
2031
7 Valley View Loan 408 October 10, N/A N/A 51,000,000.00 53.3 1
2031
8 Sun Communities 359 September 10, 360 359 44,963,186.60 60.3 7
Loan 2027
-----------------------------------------------------------------------------------------------------------------------------------
(a) The Borrower's are: Community Centers One L.L.C., Community Centers
Two L.L.C. and Shoppers World Community Center, L.P.
(b) The Borrower is Courtyard by Marriott Limited Partnership.
(c) The Borrower is BRE/Worldwide L.L.C.
(d) The Borrower is Xxxxxxxx Properties Real Estate Fund, I, L.P.
(e) The Borrower is Arden Realty Finance Partnership, L.P.
(f) The Borrower is Macerich Marina Limited Partnership.
(g) The Borrower is Macerich Valley View Limited Partnership
(h) The Borrowers are: Sun Communities Funding Limited Partnership and
Miami Lakes Venture Associates.
(1) The Annual Payment for all the Mortgage Loans varies based upon: (i) the
actual number of days in each interest accrual period and (ii) the
scheduled amortization that is to occur for the loans requiring scheduled
payments of principal.
(2) The default rate is equal to the lesser of (a) the maximum rate permitted
by applicable law and (b) the greater of (i) 11.378% or (ii) the prime
rate plus 4%.
(3) The default rate is equal to the greater of (a) 2% plus 7.865% or the
Courtyard Adjusted Interest Rate, as applicable, and (b) the prime rate,
as defined in the Wall Street Journal.
(4) The default rate is equal to the lesser of (a) 4% plus 7.92% or the
Worldwide Plaza Adjusted Interest Rate, as applicable, and (b) the maximum
amount allowed by law.
(5) The principal portion of each monthly payment will be applied in the
following order: first, to the reduction of the Fixed Component A, until
such amount is paid in full; second, to the LIBOR Component until such
amount is paid in full; and third, to the Fixed Component B until such
amount is paid in full.
(6) Annual payment varies based upon one-month LIBOR rates. The Initial LIBOR
rate is 5.65625; this reflects the rate adjustment of September 10, 1997.
(7) The default rate is equal to the lesser of (a) 4.55% plus one month LIBOR
or the Worldwide Plaza Adjusted Interest Rate, as applicable, and (b) the
maximum amount allowed by law.
(8) The default rate is equal to the lesser of (a) the maximum rate permitted
by New York law and (b) the applicable interest rate (7.579% or if
subsequent to the Anticipated Repayment Date then the "Xxxxxxxx Adjusted
Interest Rate") on the loan plus 3%.
(9) The default rate is equal to the lesser of (a) the greater of (i) 10.52%
(or after the Anticipated Repayment Date, the Adjusted Interest Rate plus
3%) and (ii) the prime rate that is published in The Wall Street Journal
listing of "Money Rates" plus 2% and (b) the maximum rate allowed by law.
(10) The default rate is equal to the lesser of (a) 10.225% (or on and after
the Xxxxx Xxxxxx Anticipated Repayment Date. the Xxxxx Xxxxxx Adjusted
Interest Rate plus 3%) and (b) the maximum rate allowed to be collected
under applicable law.
(11) The default rate is equal to the lesser of )a) 10.89% (or on and after the
Valley View Anticipated Repayment Date, the Valley View Adjusted Interest
Rate plus 3%) and (b) the maximum rate allowed to be collected under
applicable law.
(12) The default rate is equal to the lesser of (a) the 12.01% and (b) the
maximum rate allowed to be collected under applicable law.
EXHIBIT C-1
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
_______________________, being first duly sworn, deposes and says:
1.____That he/she is a ___________________ of _____________________
(the "Purchaser"), a _______________ duly organized and existing under the laws
of the State of _____________, on behalf of which he makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is
________________.
3. That the Purchaser of the Structured Asset Securities
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1997-LL I,
Class [R] [LR] (the "Class [R] [LR] Certificate") is a Permitted Transferee (as
defined in Article I of the Pooling and Servicing Agreement, dated as of October
11, 1997, by and among Structured Asset Securities Corporation, as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent (the
"Pooling and Servicing Agreement"), or is acquiring the Class [R] [LR]
Certificate for the account of, or as agent (including as a broker, nominee, or
other middleman) for, a Permitted Transferee and has received from such person
or entity an affidavit substantially in the form of this affidavit.
4. That 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] [LR]
Certificate as they become due.
5. That the Purchaser understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Purchaser will not transfer the Class [R] [LR]
Certificate to any person or entity from which the Purchaser has not received an
affidavit substantially in the form of this affidavit or as to which the
Purchaser has actual knowledge that the requirements set forth in paragraph 3,
paragraph 4 or paragraph 7 hereof are not satisfied or that the Purchaser has
reason to know does not satisfy the requirements set forth in paragraph 4
hereof.
7. That the Purchaser is not a Disqualified Non-U.S. Person and is
not purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified Non-U.S.
Person.
8. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to such a "disqualified
organization," an agent thereof, or a person that does not satisfy the
requirements of paragraph 4 and paragraph 7 hereof.
9. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Purchaser agrees to
act as "tax matters person" and to perform the functions of "tax matters person"
of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section 4.04 of the
Pooling and Servicing Agreement, and agrees to the irrevocable designation of
the Trustee as the Purchaser's agent in performing the function of "tax matters
person."
10. The Purchaser agrees to be bound by and to abide by the
provisions of Section 5.02 of the Pooling and Servicing Agreement concerning
registration of the transfer and exchange of the Class [R] [LR] Certificate.
Capitalized terms used but not defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf by its ____________________ this ___th day of __________,
199__.
[Purchaser]
By:_______________________________
Title:_____________________________
Name:____________________________
2
The above-named ___________________ personally appeared before me
and is known or proved to me to be the same person who executed the foregoing
instrument and to be the _________________ of the Purchaser, and acknowledged to
me that he/she executed the same as his/her free act and deed and the free act
and deed of the Purchaser.
Subscribed and sworn before me this __th day of _________________,
199_.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the __th day of
_______________, 199_.
3
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
[CERTIFICATE REGISTRAR]
Re: Structured Asset Securities Corporation,
Commercial Mortgage Pass-Through Certificates,
Series 1997-LL I
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the information contained in paragraph 4 thereof is not true.
Very truly yours,
______________________
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle National Bank, as Trustee
and Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset-Backed Securities
Trust Services Group
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:________________
Re: Transfer of Structured Asset Securities Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1997-LL
I, Class[ ]
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of October 11, 1997 (the "Pooling and Servicing
Agreement"), by and among Structured Asset Securities Corporation, as Depositor,
GMAC Commercial Mortgage Corporation., as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, on
behalf of the holders of Structured Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1997-LL I (the "Certificates") in
connection with the transfer by ________________ to the undersigned (the
"Purchaser") of $_______________ aggregate Certificate Principal Amount of Class
[_] Certificates, in certificated fully registered form, or, if applicable, a
beneficial interest of such aggregate Certificate Principal Amount in a Private
Global Certificate (either such interest, the "Transferred Interest"). Terms
used but not defined herein shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
[[For Institutional Accredited Investors only.]
1. We are an "institutional accredited investor" (an entity meeting
the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act (as defined below)) and have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Transferred Interest, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment. We are acquiring the Transferred Interest purchased by us for our
own account or for one or more accounts (each of which is an "institutional
accredited investor") as to each of which we exercise sole investment
discretion. The Purchaser hereby undertakes to reimburse the Trust for any costs
incurred by it in connection with this transfer.]
[[For Qualified Institutional Buyers only.]
1. The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A (as defined below) promulgated under the Securities Act (as
defined below). The Purchaser is aware that the transfer is being made in
reliance on Rule 144A, and the Purchaser has had the opportunity to obtain the
information required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.]
2. The Purchaser's intention is to acquire the Transferred Interest
(a) for investment for the Purchaser's own account or (b) for resale to (i)
"qualified institutional buyers" in transactions under Rule 144A ("Rule 144A")
promulgated under the Securities Act of 1933 (the "Securities Act") or (ii) to
"institutional accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act, or (iii)
pursuant to any other exemption from the registration requirements of the
Securities Act, subject in the case of this clause (ii) to (a) the receipt by
the Certificate Registrar of a letter substantially in the form hereof, (b) the
receipt by the Certificate Registrar of an opinion of counsel acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the Securities Act, (c) the receipt by the Certificate Registrar
of such other evidence acceptable to the Certificate Registrar that such
reoffer, resale, pledge or transfer is in compliance with the Securities Act and
other applicable laws, and (d) a written undertaking to reimburse the Trust for
any costs incurred by it in connection with the proposed transfer. It
understands that the Transferred Interest has not been registered under the
Securities Act, by reason of a specified exemption from the registration
provisions of the Securities Act which may depend upon, among other things, the
bona fide nature of the Purchaser's investment intent (or intent to resell to
only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser acknowledges that the Transferred Interest has not
been registered or qualified under the Securities Act or the securities laws of
any State or any other jurisdiction, and that the Transferred Interest cannot be
resold unless it is registered or qualified thereunder or unless an exemption
from such registration or qualification is available.
4. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
the
2
Transferred Interest in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust Fund, the Certificate Registrar
and all Certificateholders present and future.
5. The Purchaser will not sell or otherwise transfer any portion of
the Transferred Interest, except in compliance with Section 5.02 of the Pooling
and Servicing Agreement.
6. Check one of the following:*
______ The Purchaser is a "U.S. Person" and it has attached hereto
an Internal Revenue Service ("IRS") Form W-9 (or successor form).
______ The Purchaser is not a "U.S. Person" and under applicable law
in effect on the date hereof, no Taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to Distributions to be made on
the Transferred Interest. The Purchaser has attached hereto either (i) a duly
executed IRS Form W-8 (or successor form), which identifies such Purchaser as
the beneficial owner of the Transferred Interest and states that such Purchaser
is not a U.S. Person or (ii) two duly executed copies of IRS Form 4224 (or
successor form), which identify such Purchaser as the beneficial owner of the
Transferred Interest and state that interest and original issue discount on the
Transferred Interest is, or is expected to be, effectively connected with a U.S.
trade or business. The Purchaser agrees to provide to the Certificate Registrar
updated IRS Forms W-8 or IRS Forms 4224, as the case may be, any applicable
successor IRS forms, or such other certifications as the Certificate Registrar
may reasonably request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after the occurrence of
any event requiring a change in the most recent IRS form of certification
furnished by it to the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation, partnership
or other entity created or organized in or under the laws of the United States
or any of its political subdivisions, or an estate or trust the income of which
is subject to U.S. federal income taxation regardless of its source.
--------
* Each Purchaser must include one of the two alternative certifications.
3
Please make all payments due on the Transferred Interests:**
______ (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities therefor:
Account number __________ Institution ___________
______ (b) by mailing a check or draft to the following address:
_________________________
_________________________
_________________________
_________________________
_________________________
_______________
Very truly yours,
[The Purchaser]
By: ____________________________________
Name: __________________________________
Title: _________________________________
--------
** Only to be filled out by Purchasers of Individual Certificates. Please
select (a) or (b).
4
EXHIBIT D-2
FORM OF ERISA REPRESENTATIONS LETTER
LaSalle National Bank, as Trustee
and Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset Backed Securities
Trust Services Group
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:________________
Re: Structured Asset Securities Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1997-LL I, Class[ ]
Ladies and Gentlemen:
__________________________ (the "Purchaser") intends to purchase
from ____________________ (the "Seller") $_____________ initial Certificate
Principal Amount or _____% Percentage Interest of Structured Asset Securities
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1997-LL I,
Class [_], CUSIP No. [____] (the "Certificates"), issued pursuant to the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
October 11, 1997, by and among Structured Asset Securities Corporation, as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. All capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Pooling and Servicing Agreement.
The Purchaser hereby certifies, represents and warrants to, and
covenants with, the Seller, the Certificate Registrar and the Trustee that:
1. The Purchaser is neither (a) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a Xxxxx
plan, which is subject to Title I of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or Section 4975 of the Code, or a governmental
plan (as defined in Section 3(32) of ERISA) that is subject to any Federal,
State or local law (a "Similar Law"), which is to a material extent, similar to
the foregoing provisions of ERISA or the Code (each, a "Plan"), nor (b) a
collective investment fund in which such Plans are invested, an insurance
company using assets of
separate accounts or general accounts which include assets of Plans (or which
are deemed pursuant to ERISA or any Similar Law to include assets of Plans) or
other Person acting on behalf of any such Plan or using the assets of any such
Plan, other than (with respect to any transfer of a Class B, Class C-1, Class
C-2, Class X-2, Class D, Class E or Class F Certificate) an insurance company
using assets of its general account under circumstances whereby such purchase
and the subsequent holding of such Certificate by such insurance company would
be exempt from the prohibited transaction provisions of ERISA and Section 4975
of the Code under Prohibited Transaction Class Exemption 95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or 1(b) above, except in the case of the Class R and Class
LR Certificates, which may not be transferred unless the transferee represents
it is not such a Person, such Purchaser is required to provide to the Seller,
the Trustee and the Certificate Registrar an Opinion of Counsel in form and
substance satisfactory to the Seller, the Trustee and the Certificate Registrar
that the purchase or holding of the Certificates will not result in the assets
of the Trust Fund being deemed to be "plan assets" and subject to Title I of
ERISA, Section 4975 of the Code or Similar Law, will not constitute or result in
a prohibited transaction within the meaning of ERISA or Section 4975 of the Code
or a materially similar characterization under any Similar Law, and will not
subject the Master Servicer, the Special Servicer, the Seller, the Trustee or
the Certificate Registrar to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or Similar Law) in addition
to those set forth in the Pooling and Servicing Agreement, which Opinion of
Counsel shall not be at the expense of the Trust Fund, the Master Servicer, the
Seller, the Trustee or the Certificate Registrar.
2
IN WITNESS WHEREOF, the Purchaser hereby executes the ERISA
Representation Letter on ______________ __, 19__.
Very truly yours,
____________________________________
By:_________________________________
Name:______________________________
Title:_______________________________
3
EXHIBIT E
FORM OF REQUEST FOR RELEASE
(for Trustee/Custodian)
Loan Information:
Name of Mortgagor: __________________
Master Servicer Loan No.: __________________
Custodian/Trustee
Name: __________________
Address: __________________
__________________
Custodian/Trustee Mortgage File No.: __________________
[Depositor]
Name: __________________
Address: __________________
__________________
Certificates: Structured Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1997-LL I
The undersigned Master Servicer hereby acknowledges that it has
received from LaSalle National Bank, as Trustee for the Holders of Structured
Asset Securities Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1997-LL I, the documents referred to below (the "Documents"). All
capitalized terms not otherwise defined in this Request for Release shall have
the meanings given them in the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of October 11, 1997, by and among the Trustee,
ABN AMRO Bank N.V., as Fiscal Agent, Structured Asset Securities Corporation, as
Depositor, and GMAC Commercial Mortgage Corporation, as Master Servicer and
Special Servicer.
( ) Promissory Note dated _________, 199__, in the original
principal sum of $_____, made by _______, payable to, or endorsed to the order
of, the Trustee.
( ) Mortgage recorded on ____________ as instrument no.
________ in the County Recorder's Office of the County of _________, State
of ___________ in book/reel/docket ___________ of official records at
page/image ________.
( ) Deed of Trust recorded on __________ as instrument no.
________ in the County Recorder's Office of the County of ___________,
State of _______ in book/reel/docket ____________ of official records at
page/image.
( ) Assignment of Mortgage or Deed of Trust to the Trustee,
recorded on _____________ as instrument no. _______ in the County Recorder's
Office of the County of
_________, State of _______ in book/reel/docket __________ of official records
at page/image _____________.
( ) Other documents, including any amendments, assignments or
other assumptions of the Note or Mortgage.
( )______________________________
( )______________________________
( )______________________________
( )______________________________
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the purposes
provided in the Agreement.
(2) The Master Servicer shall not cause or permit the Documents to
become subject to, or encumbered by, any claim, liens, security interest,
charges, writs of attachment or other impositions nor shall the Master Servicer
assert or seek to assert any claims or rights of set-off to or against the
Documents or any proceeds thereof.
(3) The Master Servicer shall return the Documents to the Custodian
when the need therefor no longer exists, unless the Mortgage Loan relating to
the Documents has been liquidated and the proceeds thereof have been remitted to
the Collection Account and except as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of the Master Servicer shall
at all times be earmarked for the account of the Trustee, and the Master
Servicer shall keep the Documents and any proceeds separate and distinct from
all other property in the Master Servicer's possession, custody or control.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:_________________________________
Title:_______________________________
Date: _______________ __, 19__
2
EXHIBIT F
SECURITIES LEGEND
Subject to the Pooling and Servicing Agreement, the Rule 144A Global
Certificates, Residual Certificates and Individual Certificates will bear a
legend (the "Securities Legend") to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN
INSTITUTIONAL INVESTOR THAT IS, OR ALL THE EQUITY OWNERS OF WHICH ARE,
INSTITUTIONAL "ACCREDITED INVESTORS" AS SUCH TERM IS DEFINED IN RULE
501(A)(1),(2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) OR (3) BY AN
INITIAL INVESTOR THAT IS A QIB, TO AN INSTITUTIONAL ACCREDITED INVESTOR AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
Notwithstanding anything to the contrary, the Residual Certificates
will not bear clause (A)(2) and clause (A)(3) of the Securities Legend.
EXHIBIT G
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement")
dated as of October 11, 1997 (the "Cut-off Date") is between Structured Asset
Securities Corporation, a Delaware corporation (the "Company"), and Xxxxxx
Brothers Holdings Inc., a Delaware corporation (the "Seller"). The Seller agrees
to sell, and the Company agrees to purchase, the mortgage loans (the "Mortgage
Loans") described in, and set forth in, the Mortgage Loan Schedule attached as
Exhibit B to the Pooling and Servicing Agreement dated as of October 11, 1997
(the "Pooling and Servicing Agreement"), among the Company, GMAC Commercial
Mortgage, as master servicer (in such capacity, the "Master Servicer") and as
special servicer (in such capacity, the "Special Servicer"), LaSalle National
Bank, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent
relating to the issuance of the Structured Asset Securities Corporation
Commercial Mortgage Pass-Through Certificates, Series 1997-LL I (the
"Certificates"). Terms used without definition herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement or, if not
defined therein, in the Underwriting Agreement, dated October 10, 1997 (the
"Underwriting Agreement"), by and between the Company and Xxxxxx Brothers Inc.
(in such capacity, the "Underwriter") or in the Purchase Agreement, dated
October 14, 1997 (the "Purchase Agreement") by and between the Company and
Xxxxxx Brothers Inc. (in such capacity, the "Initial Purchaser").
1.____Purchase Price; Purchase and Sale. The purchase price (the
"Purchase Price") for the Mortgage Loans shall be an amount agreed upon by the
parties in a separate writing, which amount shall be payable by the Company to
the Seller on the Closing Date (except as provided below) in immediately
available funds. The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of Cadwalader, Xxxxxxxxxx & Xxxx, New York, New
York, at 10:00 a.m. New York time, on October 14, 1997 (the "Closing Date").
On the Closing Date, the Company shall pay the Purchase Price to the
Seller. As of the Closing Date, the Seller hereby sells, transfers, assigns,
sets over and otherwise conveys to the Company all the right, title and interest
of the Seller in and to the Mortgage Loans, including all interest and principal
due on or with respect to the Mortgage Loans on or after the Cut-off Date,
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard, primary mortgage or other insurance
policies. The Company hereby directs the Seller, and the Seller hereby agrees,
to deliver to the Trustee all documents, instruments and agreements required to
be delivered by the Company to the Custodian on behalf of the Trustee under the
Pooling and Servicing Agreement and such other documents, instruments and
agreements as the Company or the Trustee shall reasonably request.
2. Representations and Warranties. (a) The Seller hereby represents
and warrants to the Company as of the Closing Date that:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware, with full power and authority to
carry on its business as presently conducted by it;
(ii) The Seller has taken all necessary action to authorize
the execution, delivery and performance of this
Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all the
transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign and
transfer the Mortgage Loans in accordance with this
Agreement;
(iii) Assuming the due authorization, execution and delivery
of this Agreement by the Company, this Agreement and all
of the obligations of the Seller hereunder are the
legal, valid and binding obligations of the Seller,
enforceable in accordance with the terms of this
Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or
affecting creditors' rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity
or at law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Seller
does not conflict with any provision of any law or
regulation to which the Seller is subject, or conflict
with, result in a breach of or constitute a default
under any of the terms, conditions or provisions of any
agreement or instrument to which the Seller is a party
or by which it is bound, or any order or decree
applicable to the Seller, or result in the creation or
imposition of any lien on any of the Seller's assets or
property, which would materially and adversely affect
the ability of the Seller to carry out the transactions
contemplated by this Agreement. The Seller has obtained
any consent, approval, authorization or order of any
court or governmental agency or body required for the
execution, delivery and performance by the Seller of
this Agreement;
(v) There is no action, suit or proceeding pending against
the Seller in any court or by or before any other
governmental agency or instrumentality which would
materially and adversely affect the
-3-
ability of the Seller to carry out its obligations under
this Agreement or have a material adverse effect on the
financial condition of the Seller or the ability of the
Seller to perform its obligations under this Agreement;
and
(vi) The originator of each Mortgage Loan is approved by the
Secretary of Housing and Urban Development pursuant to
Sections 203 and 211 of the National
Housing Act.
(b) The Seller hereby represents and warrants with respect to each
Mortgage Loan, except as disclosed in Exhibit A, that as of the date specified
below or, if no such date is specified, as of the Closing Date:
(i) Immediately prior to the transfer and assignment to the
Company, each related Note and Mortgage was not subject
to an assignment (other than to the Seller) or pledge,
and the Seller had good title to, and was the sole owner
of, such Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign
and transfer such Mortgage Loan;
(iii) The Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security
interests of any nature encumbering such Mortgage Loan
subject to matters described in clause (xi) below;
(iv) Each related Note, Mortgage, Assignment of Leases and
Rents (if any) and other agreement executed in
connection with such Mortgage Loan are legal, valid and
binding obligations of the related Borrower, enforceable
in accordance with their terms, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the
enforcement of creditors rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity
or at law);
(v) Each related Assignment of Leases and Rents, if any,
creates a valid, first priority assignment of, or a
valid first priority security interest in, certain
rights under the related leases, subject only to a
license granted to the related Borrower to exercise
certain rights and to perform certain obligations of the
lessor under such leases, including the right to operate
the related Mortgaged Property; no person other than the
related Borrower owns any interest in any payments due
under such leases that is superior to or of equal
priority with the mortgagee's interest therein;
-4-
(vi) Each related assignment of Mortgage from the Seller to
the Company constitutes the legal, valid and binding
assignment of such Mortgage from the Seller to the
Company and any related Reassignment of Assignment of
Leases and Rents, if any, or assignment of any other
agreement executed in connection with such Mortgage
Loan, from the Seller to the Company, constitutes the
legal, valid and binding assignment from the Seller to
the Company, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or
affecting creditors' rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity
or at law);
(vii) Since origination, and except as set forth in the
related Mortgage File, such Mortgage Loan has not been
waived, modified, altered, satisfied, canceled,
subordinated or rescinded, and each related Mortgaged
Property has not been released from the lien of the
related Mortgage in any manner that materially
interferes with the security intended to be provided by
such Mortgage;
(viii) Each related Mortgage is a valid and enforceable first
lien on the related Mortgaged Property (subject to the
matters described in clause (xi) below), and, as of the
date of the origination of such Mortgage Loan, such
Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are
insured against by a lender's title insurance policy (as
described below);
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related
Borrower in the Mortgage Loan not to be true;
(x) The Seller has no knowledge that the representations and
warranties made by each related Borrower in such
Mortgage Loan are not true in any material respect;
(xi) The lien of each related Mortgage is insured by an ALTA
lender's title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Originator, its
successors and assigns, or the holder of the related
Note as to a valid and first priority lien on the
related Mortgaged Property and the first priority lien
of the Mortgage in at least the original principal
amount of such
-5-
Mortgage Loan or Allocated Loan Amount of the related
Mortgaged Property (as set forth on the Mortgage Loan
Schedule which is an exhibit to the Pooling and
Servicing Agreement) after all advances of principal,
subject only to (A) the lien of current real property
taxes, ground rents, water charges, sewer rents and
assessments not yet due and payable, (B) covenants,
conditions and restrictions, rights of way, easements
and other matters of public record, none of which,
individually or in the aggregate, materially interferes
with the current use or operation of the Mortgaged
Property or the security intended to be provided by such
Mortgage or with the related Borrower's ability to pay
its obligations when they become due or the value of the
Mortgaged Property and (C) the exceptions (general and
specific) set forth in such policy, none of which,
individually or in the aggregate, materially interferes
with the security intended to be provided by such
Mortgage or with the related Borrower's ability to pay
its obligations when they become due or the value, use
or operation of the Mortgaged Property; the Seller or
its successors or assigns is the sole named insured of
such policy, and such policy is in full force and effect
upon the consummation of the transactions contemplated
by this Agreement; no claims have been made under such
policy, and the Seller has not done anything, by act or
omission, and the Seller has no knowledge of any matter,
that would impair or diminish the coverage of such
policy; to the extent required by applicable law, the
insurer issuing such policy is qualified to do business
in the jurisdiction in which the related Mortgaged
Properties are located;
(xii) The proceeds of such Mortgage Loan have been fully
disbursed, and there is no requirement for future
advances thereunder, and the Seller covenants that it
will not make any future advances under the Mortgage
Loan to the related Borrower;
(xiii) Based on inspection reports contained in the related
Mortgage File, which have been performed within 12
months of the Closing Date, each related Mortgaged
Property is free of any material damage for which
amounts at least sufficient to cure such damage have not
been reserved or that would affect materially and
adversely the value of such Mortgaged Property as
security for the Mortgage Loan and is in good repair,
and there is no proceeding pending for the total or
partial condemnation of such Mortgaged Property;
(xiv) Each of the related Borrowers is in possession of all
material licenses, permits and other authorizations
necessary and required
-6-
by all applicable laws for the conduct of its business
that if not obtained would have a material adverse
effect on the conduct of its business or its ability to
repay the related Mortgage Loan, and all such licenses,
permits and authorizations are valid and in full force
and effect, and if a related Mortgaged Property is
improved by a hotel, the most recent inspection or
review by the franchiser, if any, did not cite such
Mortgaged Property for material violations of the
related franchise agreement which have not been cured;
(xv) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months
preceding the Cut-off Date;
(xvi) Such Mortgage Loan does not have a shared appreciation
feature, other contingent interest feature or negative
amortization;
(xvii) Such Mortgage Loan is a whole loan and no other party
holds a participation interest in the Mortgage Loan.
Neither the Originator nor any of its affiliates has or
is entitled to any preferred or any other direct equity
interest in a Borrower;
(xviii) The Mortgage Rate (exclusive of any default interest
late charges, or prepayment premium) of such Mortgage
Loan complied as of the date of origination with, or is
exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury;
any and all other requirements of any federal, state or
local laws applicable to such Mortgage Loan have been
complied with as of the date of origination of such
Mortgage Loan;
(xix) No fraudulent acts were committed by the Originator
during the origination process of any such Mortgage
Loan;
(xx) All taxes and governmental assessments that prior to the
Closing Date became due and owing in respect of each
related Mortgaged Property have been paid, are being
appealed, or an escrow of funds in an amount sufficient
to cover such payments has been established;
(xxi) All escrow deposits and payments required pursuant to
the Mortgage Loans are in the possession, or under the
control, of the Seller or its agent, and there are no
deficiencies in connection therewith;
(xxii) To the extent required under applicable law, as of the
Cut-off Date, the Originator was authorized to transact
and do business in
-7-
the jurisdiction in which each related Mortgaged
Property is located at all times when it held the
Mortgage Loan;
(xxiii) Except as disclosed in the Prospectus Supplement dated
October 10, 1997 relating to the Certificates (the
"Prospectus Supplement"), each related Mortgaged
Property is insured by a fire and extended perils
insurance policy, issued by an insurer, or reinsured by
a reinsurer, meeting the requirements of the related
Loan Documents, in an amount not less than the
replacement cost and the amount necessary to avoid the
operation of any co-insurance provisions with respect to
the Mortgaged Property; each related Mortgaged Property
is also covered by business interruption insurance for a
minimum of twelve months and comprehensive general
liability insurance in amounts generally required by
institutional lenders for similar properties; all
premiums on such insurance policies required to be paid
as of the date hereof have been paid; such insurance
policies require prior notice to the insured of
termination or cancellation, and no such notice has been
received; each related Mortgage or Loan Agreement
obligates the related Borrower to maintain all such
insurance and, at such Borrower's failure to do so,
authorizes the mortgagee to maintain such insurance at
the Borrower's cost and expense and to seek
reimbursement therefor from such Borrower;
(xxiv) There is no default, breach, violation or event of
acceleration existing under the related Mortgage or the
related Note and, to the Seller's knowledge, no event
(other than payments due but not yet delinquent) which,
with the passage of time or with notice and the
expiration of any grace or cure period, would and does
constitute a default, breach, violation or event of
acceleration;
(xxv) Such Mortgage Loan has not been more than one month past
due (as determined from the Due Date without giving
effect to grace periods) since origination and as of the
Cut-off Date was not one month or more past due;
(xxvi) Each related Mortgage contains customary and
enforceable provisions (subject to matters described in
clause (iv) above) such as to render the rights and
remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the
benefits of the security, including realization by
judicial or, if applicable, non-judicial foreclosure,
and there is no exemption available to the related
Borrower which would interfere with such right to
foreclose;
-8-
(xxvii) In each related Mortgage, Loan Agreement or other
agreement assigned to the Trustee, the related Borrower
represents and warrants that, except as set forth in
certain environmental reports or other documents
previously provided to the Rating Agencies and to the
best of its knowledge, 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 federal, state or
local laws, ordinances, regulations, orders, directives
or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials; the
related Borrower agrees to indemnify, defend and hold
the mortgagee and its successors and assigns harmless
from and against any and all losses, liabilities,
damages, injuries, penalties, fines, expenses, and
claims of any kind whatsoever (including reasonable
attorneys' fees and costs) paid, incurred or suffered by
any such party resulting from a breach of certain
representations, warranties or covenants given by the
Borrower in such Mortgage or Loan Agreement, subject to
certain exceptions with respect to the culpability of
the indemnified parties; a Phase I environmental report
was conducted by a reputable environmental consultant in
connection with such Mortgage Loan, which report did not
indicate any material non-compliance or material
existence of Hazardous Materials, except as disclosed in
the Prospectus Supplement; to the extent such Phase I
environmental report identified any material
non-compliance, such material non-compliance either has
been remediated or an escrow of funds sufficient to
effect such remediation has been established; to the
best of the Seller's knowledge, each related Mortgaged
Property, except as disclosed in the Prospectus
Supplement, is in material compliance with all
applicable federal, state and local laws pertaining to
environmental hazards, and to the best of Seller's
knowledge, except as disclosed in the Prospectus
Supplement, no notice of violation of such laws has been
issued by any governmental agency or authority; the
Seller has not taken any action which would cause the
related Mortgaged Property not to be in compliance with
all federal, state and local laws pertaining to
environmental hazards;
(xxviii) Each related Mortgage or Loan Agreement contains
provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if,
without complying with the requirements of the Mortgage
or Loan Agreement or obtaining the prior written consent
of the Mortgagee, the related Mortgaged Property, or any
interest therein, is directly or indirectly
-9-
transferred or sold, or encumbered in connection with
subordinate financing;
(xxix) To Seller's knowledge, and in reliance upon an opinion
of counsel, (A) when the related UCC financing
statements are filed and indexed in the appropriate
state and local offices for such filing and indexing,
such filings shall be sufficient to perfect a lien on
the Mortgaged Property described therein to the extent a
security interest can be perfected under the UCC and (B)
no re-filing of such financing statements will be
necessary for the perfection of the lien intended to be
created or the enforcement of such Mortgage Loan against
the related Borrower, other than filing UCC continuation
statements with the appropriate state and local offices
as required under the law of the applicable state to
continue the perfection of the liens perfected by UCC
financing statements;
(xxx) (A) the Mortgage Loan is directly secured by one or more
Mortgages on commercial Real Property, and (B) the fair
market value of such Real Property was at least equal to
80% of the principal amount of the Mortgage Loan (1) at
origination (or if the Mortgage Loan has been modified
in a manner that constituted a deemed exchange under
Section 1001 of the Code at a time when the Mortgage
Loan was not in default or default with respect thereto
was not reasonably foreseeable, the date of the last
such modification) or (2) at the Closing Date; provided
that the fair market value of the Real Property must
first be reduced by (x) the amount of any lien on the
Real Property that is senior to the Mortgage Loan
(unless such senior lien also secures a Mortgage Loan,
in which event the computation described in clauses (1)
and (2) shall be made on an aggregated basis) and (y) a
proportionate amount of any lien that is in parity with
the Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described
in clauses (1) and (2) shall be made on an aggregate
basis);
(xxxi) With respect to each Mortgaged Property where the
estate of the related Borrower therein is a leasehold
estate;
(A) the related lease or a memorandum thereof has been
or will be duly recorded; such lease or an
estoppel letter or lender protective agreement
between the Seller and the lessor under such lease
permits the interest of the lessee thereunder to
be encumbered by the related Mortgage;
-10-
and, to the best of Seller's knowledge, there has
been no material amendment or modification of such
lease since its recordation, with the exception of
written amendments or modifications which are part
of the related Mortgage File;
(B) except as may be indicated in the related title
insurance policy, to the best of Seller's
knowledge, the lessee's interest in the related
lease and the leasehold estate created thereby is
not subject to any liens or encumbrances superior
to, or of equal priority with, the related
Mortgage;
(C) the Seller and, subsequent to any assignment of
the related Mortgage, the Seller's successors and
assigns, have the right to succeed to the
Borrower's interest in the related lease upon
notice to, but without the consent of, the lessor
thereunder (or, if any such consent is required,
it has been obtained prior to the Closing Date),
provided, in the event that Seller, or its
successors and assigns, shall have succeeded to
the interest of the Borrower, as lessee under the
lease, by foreclosure of the related Mortgage or
acceptance of an assignment in lieu thereof or
other remedies available to the mortgagee, the
consent of such lessor may be required for any
subsequent assignment;
(D) as of the date the related Mortgage Loan was made,
the related lease was in full force and effect
and, to such lessor's knowledge, no default had
occurred under such lease, nor, to such lessor's
knowledge, was there any then existing condition
which, but for the passage of time or the giving
of notice, would have resulted in a default under
the terms of such lease, and as of the date
hereof, Seller has received no written notice of a
default or event of default on the part of a
Borrower from the lessor of such Borrower's lease;
(E) the related lease or an estoppel letter or lender
protective agreement requires the lessor
thereunder to give notice of any default by the
lessee to the mortgagee, provided that the
mortgagee has provided the lessor with notice of
its lien in accordance with the provisions of such
lease, estoppel letter or lender protective
agreement; the mortgagee has provided the lessor
with such notice;
-11-
(F) the related lease, estoppel letter or lender
protective agreement provides a mortgagee with a
reasonable opportunity (including, where
necessary, sufficient time to gain possession of
the interest of the lessee under such lease) to
cure any default under such lease, which is
curable after the receipt of notice of any such
default before the lessor thereunder may terminate
such lease;
(G) (1) the related lease has a term (including
renewals, if exercised) which extends not less
than ten years beyond the maturity date of the
related Mortgage Note and (2) to the extent that
the representation under the foregoing clause (1)
is based on the existence of renewal options, the
terms on which the related borrower has the right
to enter into such renewals, and any conditions to
the related borrower's right to enter into such
renewals, are commercially reasonable;
(H) under the terms of the related lease, estoppel
letter, lender protection agreement and the
related Mortgage, taken together, any insurance
proceeds other than in respect of a total or
substantially total loss or taking, will be
applied either (1) to the repair or restoration of
all or part of the related Mortgaged Property,
with the lessor, mortgagee or a depository
appointed pursuant to the terms of such lease
having the right to hold and disburse such
proceeds as the repair or restoration progresses,
or (2) to the payment of the outstanding principal
balance of the applicable Mortgage Loan together
with any accrued interest thereon;
(I) the related lease does not impose restrictions on
subletting of all or portions of the Mortgaged
Property by lessee which would be viewed, as of
the date of origination of such Mortgage Loan, as
commercially unreasonable by the Seller; and
(J) the related lease or an estoppel letter provides
that in the event that a lessee in bankruptcy
rejects any or all of its leases; the leasehold
mortgagee will have the right to succeed to the
ground lessee's position under the lease, provided
that written notice has been sent to the lessor
and all defaults with respect to the lease are
cured.
-12-
(xxxii) The Mortgage Loan Schedule is complete and accurate in
all respects;
(xxxiii) No advance of funds has been made, directly or
indirectly, by the Seller to any borrower and no funds
have been received from any person other than the
borrower for or on account of payments due on a Note or
Mortgage;
(xxxiv) No Mortgage Loan is secured by collateral that is not
included in the Trust Fund;
(xxxv) Each Mortgage Loan that is cross-collateralized is
cross-collateralized only with Notes included in the
Trust Fund;
(xxxvi) Each Mortgaged Property that is located in a federally
designated flood hazard area is covered by an insurance
policy covering flood losses;
(xxxvii) There is no pending material action, suit, proceeding,
arbitration or governmental investigation against the
Borrower or Mortgaged Property an adverse outcome of
which would materially affect such Borrower's
performance under the loan documents or the holders of
the Certificates;
(xxxviii) The origination, servicing and collection practices
used by the Originators have been in all respects legal,
proper and prudent and have met customary industry
standards; and
(xxxix) The Note and Mortgage do not require the mortgagee to
release any material portion of a Mortgaged Property
from the lien of the Mortgage except upon payment in
full of the loan or the payment of 125% (or in the case
of the Xxxxxxxx Loan 115%) of the Allocated Loan Amount
of the related Mortgaged Property.
3. Notice of Breach; Cure and Repurchase. (a) Pursuant to the
Pooling and Servicing Agreement, the Seller and the Company shall be given
notice of (i) any breach of any representation or warranty contained in Section
2(b)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi), (xii), (xv),
(xvi), (xvii), (xviii), (xix), (xx), (xxii), (xxiv), (xxix) or (xxx) and (ii)
any breach of any representation or warranty contained in Section 2(b), (x),
(xiii), (xiv), (xxi), (xxiii), (xxv), (xxvi), (xxvii), (xxviii), (xxxi),
(xxxii), (xxxiii), (xxxiv), (xxxv), (xxxvi), (xxxvii), (xxviii) and (xxxix) that
materially and adversely affects the value of such Mortgage Loan or the
interests of the holders of the Certificates therein.
(b) Within 90 days of the receipt of the notice (or with
respect to the representation and warranty contained in Section 2(b)(xxx),
discovery) of a breach provided for in clause (a), the Seller shall either (i)
repurchase the related Mortgage Loan at the
-13-
Repurchase Price or (ii) promptly cure such breach in all material respects;
provided, however, that in the event that such breach (other than a breach of
Section 2(b)(xxx)) is capable of being cured but not within such 90 day period
and the Seller has commenced and is diligently proceeding with the cure of such
breach within such 90 day period, the Seller shall have an additional 90 days to
complete such cure, provided, further, that with respect to such additional 90
day period the Seller shall have delivered an officer's certificate to the
Trustee and the Securities setting forth the reason such breach is not capable
of being cured within the initial 90 day period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such breach will be cured within the additional 90 day period;
and provided, further, that in the event that the Seller fails to complete the
cure of such breach within such additional 90 day period, the Repurchase Price
shall also include interest at the Advance Rate on any Advance made by the
Servicer in respect of the Mortgage Loan to which such breach related. Upon any
such repurchase of a Mortgage Loan by the Seller, the Company shall execute and
deliver such instruments of transfer or assignment presented to it by the
Seller, in each case without recourse, as shall be necessary to vest in the
Seller the legal and beneficial ownership of such Mortgage Loan (including any
property acquired in respect thereof or proceeds of any insurance policy with
respect thereto) and the rights with respect thereto under the applicable
Originator's Mortgage Loan Purchase Agreement (including, without limitation,
the rights and remedies with respect to representations and warranties made by
the Originator thereunder relating to such Mortgage Loan), and shall deliver the
related Mortgage File to Seller or its designee after receipt of the related
repurchase price.
(c) The Seller hereby acknowledges the assignment by the
Company to the Trustee, as trustee under the Pooling and Servicing Agreement,
for the benefit of the Holders of the Certificates, of the representations and
warranties contained herein and of the obligation of the Seller to repurchase a
Mortgage Loan pursuant to this Section. The Trustee or its designee may enforce
such obligation as provided in Section 9 hereof.
4. Opinions of Counsel. The Seller hereby covenants to the Company
to, simultaneously with the execution hereof, deliver or cause to be delivered
to the Company opinions of counsel as to various corporate matters in form
satisfactory to the Company.
5. Underwriting. The Seller hereby agrees to furnish any and all
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans, reasonably requested by the Company in order to perform any of
its obligations or satisfy any of the conditions on its part to be performed or
satisfied pursuant to the Underwriting Agreement or the Purchase Agreement, at
or prior to the Closing Date.
6. Successor Borrowers. The Company hereby agrees that in the event
that the Seller is obligated to establish, or at its option may establish an
entity to succeed to the obligations of a Borrower upon the defeasance with
respect to the related Mortgage Loan, the Company shall, or shall cause the
Servicer under the Pooling and Servicing Agreement to, establish such a
successor entity, in each case in accordance with the provisions of the related
Loan Documents.
-14-
7. Costs. The Company shall pay all expenses incidental to the
performance of its obligations under the Underwriting Agreement and the Purchase
Agreement, including without limitation (a) any recording fees or fees for title
policy endorsements and continuations, (b) the expenses of preparing, printing
and reproducing the Prospectus Supplement, the Private Placement Memorandum, the
Underwriting Agreement, the Purchase Agreement, the Pooling and Servicing
Agreement and the Certificates and (c) the cost of delivering the Certificates
to the office of the Underwriter or the purchaser of the Certificates, as
applicable, insured to the satisfaction of the Underwriter or such purchaser, as
applicable.
8. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 3 World Financial Center - 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 attention of Xxxxxxxx Xxxx or, if sent to
the Seller, will be mailed, delivered or telegraphed and confirmed to it at 3
World Financial Center - 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 attention of
Xxxxx Xxxxxxx.
9. Trustee Beneficiary. The representations, warranties and
agreements made by the Seller in this Agreement are made for the benefit of, and
may be enforced by or on behalf of, the Trustee and the Holders of Certificates
to the same extent that the Company has rights against the Seller under this
Agreement in respect of representations, warranties and agreements made by the
Seller herein and such representations and warranties shall survive delivery of
the respective Mortgage Files to the Trustee until the termination of the
Pooling and Servicing Agreement.
10. Miscellaneous. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
except by a writing signed by the party against whom enforcement of such change,
waiver, discharge or termination is sought. This Agreement may not be changed in
any manner which would have a material adverse effect on the Holders of
Certificates without the prior written consent of the Trustee. The Trustee shall
be protected in consenting to any such change to the same extent provided in
Section 10.07 of the Pooling and Servicing Agreement. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder, other than as provided
in Section 9 hereof.
11. Third Party Beneficiary. Xxxxxx Brothers, Inc. is an intended
third party beneficiary of the representations and warranties of the Seller set
forth in Section 2 hereof.
-15-
IN WITNESS WHEREOF, the Company and the Seller have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
STRUCTURED ASSET SECURITIES CORPORATION
By:_______________________________
Name:
Title:
XXXXXX BROTHERS HOLDINGS INC.
By: _______________________________
Name:
Title:
-16-
EXHIBIT A
(to Mortgage Loan Purchase and Sale Agreement)
Exceptions to Representations and Warranties
Clause of
Section 2(b): Exception:
--------------- ---------------------------------------------------------------
(xiv) No certificates of occupancy were obtainable for the Xxxxx
Xxxxxx Property.
(xx) With respect to the DDR/DRA Properties known as the Broadway
Marketplace Property, the Perimeter Pointe Property, and the
Shoppers World Property, affirmative insurance has been
provided in the related title policy to cover such taxes and
governmental assessments.
(xxi) Such amounts required under the DDR/DRA loan are provided for
as the requirement of the minimum balance in the operating
accounts for the DDR/DRA Borrowers.
(xxvii) One of the Mortgaged Properties securing the Xxxxxxxx Loan
known as the Pacific Gateway Center Property was formerly part
of the site of a synthetic rubber manufacturing plant (the
"Plant") and owned and operated by, among others, Shell Oil
Company ("Shell") and related wastes were disposed of near the
Pacific Gateway Center Property. In connection with a
conveyance of this disposal area back to Shell by an affiliate
of the Xxxxxxxx Borrower, Shell agreed to indemnify the
Xxxxxxxx affiliate and any successors in interest against (i)
any costs of remediation of the affected areas and (ii) any
suit for damages for personal injury or property damage brought
by neighboring landowners. Environmental studies have detected
the presence of groundwater contamination and limited soil
contamination on parcels near the disposal area, including
parcels that form a part of the Pacific Gateway Center
Property. On September 25, 1997, the Xxxxxxxx Borrower was
notified that an undefined area associated with the operation
of the Plant will be listed on the NPL of Superfund sites
effective October 27, 1997. In addition, the Pacific Gateway
Center Property is located near an existing Superfund site and
contaminants associated with this site have been detected in
the groundwater in the vicinity of the Pacific Gateway Center
Property. Pursuant to an agreement (the "Shell Indemnity")
between Shell and an affiliate of the Xxxxxxxx Borrower, Shell
has agreed to (i) indemnify and hold harmless any successor of
the affiliate of the Xxxxxxxx Borrower and any subsequent
purchasers, tenants and lenders, from any liability relating to
clean up or remediation costs for the affected area or for any
contamination resulting from the interrelationship of the
nearby Superfund
site and the affected area and (ii) indemnify and hold harmless
any successor of the Xxxxxxxx Borrower from any liability
arising out of any third party tort claims for personal injury
or property damage. (Shell has confirmed that the Xxxxxxxx
Borrower and LB Realty and its successors in interest (and
their successors in interest) are indemnified parties under the
Shell Indemnity.) In addition, the Xxxxxxxx Borrower and the
Xxxxxxxx X.X. have entered into an indemnification agreement,
whereby they have agreed to indemnify LB Holdings for
environmental liabilities that might arise with respect to the
Pacific Gateway Center Property to the extent LB Holdings and
its successors in interest do not recover under the Shell
Indemnity.
(xxvii) With respect to the Courtyard Loan, the Courtyard Borrower is
not required to indemnify the mortgagee and its successors
and assigns from any liability for damages arising out of
bodily injury to persons or damage to property caused by or
resulting from the gross negligence or willful misconduct of
the mortgagee or its successors and assigns (or with respect
to the Courtyard Properties located in Georgia, resulting
from the sole negligence or willful misconduct of mortgagee
or its successors and assigns).
(xxxi)(G)(1) With respect to the Arden Loan, the lease covering an
immaterial portion of the property known as 000 Xxxxx Xxxxxx
Xxxxxxxxx, which consists of the parking facility for such
property, has a term of five years beyond the maturity date of
the Arden Loan.
(xxxi)(J) With respect to the ground lease entered into in connection
with an immaterial portion of the Arden property known as 000
Xxxxx Xxxxxx Xxxxxxxxx, the estoppel letter provides that the
leasehold mortgagee will have the right to enter into a new
lease with the lessor on the same terms and conditions as such
ground lease.
A-2
Exhibit H
Structured Asset Securities Corporation
GMAC Commercial Mortgage Corporation, as Servicer
Commercial Mortgage Pass-Through Certificates
Series 0000-XXX
XXX AMRO Acct: 99-9999-99-9
ABN AMRO Statement Date:11/13/97
LaSalle National Bank Payment Date: 11/13/97
Prior Payment: NA
Administrator: Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 WAC:
000 X. XxXxxxx XXXX:
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
================================================================================
Number Of Pages
---------------
Table of Contents 1
REMIC Certificate Report 1
Other Related Information 2
Asset Backed Facts Sheets 1
Delinquency Loan Detail 1
Mortgage Loan Characteristics 2
Loan Level Listing 1
Total pages Included In This Package 9
Specially Serviced Loan Detail Appendix A
Modified Loan Detail Appendix B
Realized Loss Detail Appendix C
================================================================================
Page 1 of 20
Structured Asset Securities Corporation
GMAC Commercial Mortgage Corporation, as Servicer
Commercial Mortgage Pass-Through Certificates
Series 0000-XXX
XXX AMRO Acct: 99-9999-99-9
ABN AMRO Statement Date:11/13/97
LaSalle National Bank Payment Date: 11/13/97
Prior Payment: NA
Administrator: Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 WAC:
000 X. XxXxxxx XXXX:
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------------------------------------------------------
Original Opening Principal Principal Negative Closing Interest Interest Pass-Through
Class Face Balance Payment Adj. or Amortization Balance Payment Adjustment Rate (2)
CUSIP Value(1) Per $1,000 Per $1,000 Loss Per $1,000 Per $1,000 Per $1,000 Per $1,000 Next
Per $1,000 Per $1,000 Rate(3)
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
================================================================================================================================
Total P&I Payment 0.00
======================
Notes: (1) N denotes notional balance not included in total
(2) Interest Paid minus Interest Adjustment minus Deferred Interest
equals Accrual
(3) Estimated
Page 2 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
===============================================================================================================================
----------------------------------------------------------------------------------------
Certificate Excess Unpaid App. Yield
Class Prepay Interest Reduction Maint.
Interest Cap. Amt. Premiums
Shortfall
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
Advances
Prior Outstanding Current Month Recovered Advance Outstanding
Principal Interest Principal Interest Principal Interest Principal Interest
------------------------------------------------------------------------------------------------------
Servicer:
Trustee:
Fiscal Agent:
------------------------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------
Current Period Collected Servicing Fees:
Current Period Special Servicing Fees:
Additional Servicing Compensation
===============================================================================================================================
Page 3 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
================================================================================================================================
Summary of REO Property:
------------------------------------------------------------------------------------------------------
Principal Date of Amount Agg. Other
Property Name Date of REO Balance Book Value Final of Proceeds Rev.
Recovery Collected
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------
Appraised value of estate acquired through foreclosure or ---------------
grant of a deed in lieu of foreclosure:
----------------
Summary of Appraisal
Reductions:
------------------------------------------------------------------------------------------------------
Principal Appraisal Appraisal Date of
Property Name Loan Number Balance Reduction Date Reduction
Amount
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------
===============================================================================================================================
Page 4 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------------------------
Distribution Delinq 1 Delinq 2 Delinq 3+ Foreclosure/ Modifications Prepayments Cur Weighted
Month Months Months BankruptREO Avg.
-------------------------------------------------------------------------------------------------------------------
Date # Balance # Balance # Balance # Balance # Balance # Balance # Balance Coupon Remit
==============================================================================================================================
11/13/97 0 0 0 0 0 0 0 0 0 0 0 0 0 0
0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000%
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
===============================================================================================================================
Note: Foreclosure and REO Totals are Included
in the Appropriate Delinquency Aging Category
Page 5 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
===============================================================================================================================
Paid Outstanding Out. Special
Disclosure Doc Thru Current P&I Property Advance Servicer Foreclosure Bankruptcy REO
Control # Date P&I Advances** Protection Description(1) Transfer Date Date Date
Advance Advances Date
===============================================================================================================================
===============================================================================================================================
A. P&I Advance - Loan Grace Period 1. P&I Advance - Loan delinquent 3. P&I Advance - Loan delinquent 3 months
1 month
B. P&I Advance - Late Payment but < one 2. P&I Advance - Loan delinquent 4. Matured Balloon/Assumed Scheduled Payment
month delinq 2 months
===============================================================================================================================
** Outstanding P&I Advances include the current period P&I Advance
Page 6 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Distribution of Principal Balances
-----------------------------------------------------------------------------------------------------------------------------
(2) Current Scheduled Balances Number of Loans (2) Scheduled Balance Based on Balance
=============================================================================================================================
$0 to $500,000
$500,000 to $1,000,000
$1,000,000 to $1,500,000
$1,500,000 to $2,000,000
$2,000,000 to $2,500,000
$2,500,000 to $3,000,000
$3,000,000 to $3,500,000
$4,500,000 to $4,000,000
$5,000,000 to $6,000,000
$6,000,000 to $7,000,000
$7,000,000 to $8,000,000
$8,000,000 to $9,000,000
$9,000,000 to $10,000,000
$10,000,000 to $11,000,000
$11,000,000 to $12,000,000
$12,000,000 to $13,000,000
$13,000,000 to $14,000,000
$14,000,000 to $15,000,000
$15,000,000 & Above
=============================================================================================================================
Total: 0 0 0.00%
-----------------------------------------------------------------------------------------------------------------------------
Average Schedule Balance is 0
Maximum Schedule Balance is 0
Minimum Schedule Balance is 0
(2) Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculations.
Page 7 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Distribution of Property Types
------------------------------------------------------------------------------------------------------------------------------
Property Types Number of Loans (2) Scheduled Balance Based on Balance
------------------------------------------------------------------------------------------------------------------------------
=============================================================================================================================
------------------------------------------------------------------------------------------------------------------------------
(2) Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculations.
Page 8 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Distribution of Mortgage Interest Rates
------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Interest Rate Number of Loans (2) Scheduled Balance Based on Balance
------------------------------------------------------------------------------------------------------------------------------
7.000% or less
7.000% or 7.125%
7.125% or 7.375%
7.375% or 7.625%
7.625% or 7.875%
7.875% or 8.125%
8.125% or 8.375%
8.375% or 8.625%
8.625% or 8.875%
8.875% or 9.125%
9.125% or 9.375%
9.375% or 9.625%
9.625% or 9.875%
9.875% or10.125%
10.125% & Above
=============================================================================================================================
Total: 0 0 0.00%
------------------------------------------------------------------------------------------------------------------------------
W/Avg Mortgage Interest Rate is 0.000%
Maximum Mortgage Interest Rate is 0.000%
Minimum Mortgage Interest Rate is 0.000%
(2) Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculations.
Page 9 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Geographic Distribution
------------------------------------------------------------------------------------------------------------------------------
Geographic Location Number of Loans (2) Scheduled Balance Based on Balance
------------------------------------------------------------------------------------------------------------------------------
California
Maryland
Virginia
Georgia
Florida
New Jersey
Arizona
Pennsylvania
Texas
Rhode Island
North Carolina
New York
Kentucky
Utah
Connecticut
=============================================================================================================================
Total: 0 0 0.00%
------------------------------------------------------------------------------------------------------------------------------
Page 10 of 20
(2) Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculations.
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Loan Seasoning
------------------------------------------------------------------------------------------------------------------------------
Number of years Number of Loans (2) Scheduled Balance Based on Balance
------------------------------------------------------------------------------------------------------------------------------
=============================================================================================================================
------------------------------------------------------------------------------------------------------------------------------
Weighted Average Seasoning is 0.0
(2) Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculations.
Page 11 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Distribution of Amortization Type
------------------------------------------------------------------------------------------------------------------------------
Amortization Type Number of Loans (2) Scheduled Balance Based on Balance
------------------------------------------------------------------------------------------------------------------------------
==============================================================================================================================
Total: 0 0 0.00%
------------------------------------------------------------------------------------------------------------------------------
(2) Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculations.
Page 12 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Distribution of Remaining Term Fully Amortizing
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Fully Amortizing Mortgage Loans Number of Loans (2) Scheduled Balance Based on Balance
------------------------------------------------------------------------------------------------------------------------------
60 months or less
61 to 120 months
121 to 180 months
181 to 240 months
241 to 360 months
==============================================================================================================================
Total: 0 0 0.00%
------------------------------------------------------------------------------------------------------------------------------
Weighted Average Months to Maturity is 0
(2) Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculations.
Page 13 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Distribution of Remaining Term Balloon Loans
------------------------------------------------------------------------------------------------------------------------------
Balloon Mortgage Loans Number of Loans (2) Scheduled Balance Based on Balance
------------------------------------------------------------------------------------------------------------------------------
12 months or less
13 to 24 months
25 to 36 months
37 to 48 months
49 to 60 months
61 to 120 months
121 to 180 months
181 to 240 months
==============================================================================================================================
Total: 0 0 0.00%
------------------------------------------------------------------------------------------------------------------------------
Weighted Average Months to Maturity is 0
(2) Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculations.
Page 14 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Distribution of DSCR
------------------------------------------------------------------------------------------------------------------------------
Debt Service Coverage Ratio (1) Number of Loans (2) Scheduled Balance Based on Balance
------------------------------------------------------------------------------------------------------------------------------
0.000 or less
0.500 to 0.625
0.625 to 0.750
0.750 to 0.875
0.875 to 1.000
1.000 to 1.125
1.125 to 1.250
1.250 to 1.500
1.500 to 1.625
1.625 to 1.750
1.750 to 1.875
1.875 to 2.000
2.000 to 2.125
2.125 & above
Unknown
==============================================================================================================================
Total: 0 0 0.00%
------------------------------------------------------------------------------------------------------------------------------
(1) Debt Service Coverage Ratios are calculated as described in the prospectus,
values are updated periodically as new NOI figures became available from
borrowers on an asset level.
(2) Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculations.
Page 15 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
NOI Aging
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
NOI Date Number of Loans (2) Scheduled Balance Based on Balance
------------------------------------------------------------------------------------------------------------------------------
1 Year or Less
1 to 2 Years
2 Years or More
Unknown
==============================================================================================================================
Total: 0 0 0.00%
------------------------------------------------------------------------------------------------------------------------------
(2) Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculations.
Page 16 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Loan Level Detail
==================================================================================================================================
Appraisal Property Operating Ending Loan
Disclosure Reduction Type Maturity Statement Principal Note Scheduled Prepayment Status
Control # Amounts Code Date DSCR NOI Date Balance Rate P&I Prepayment Date Code(1)
==================================================================================================================================
=================================================================================================================================
* NOI and DSCR, if available and reportable under the terms of the trust
agreement, are based on information obtained from the related borrower,
and no other party to the agreement shall be held liable for the accuracy
and methodology used to determine such figures
=================================================================================================================================
(1) Legend A. P&I Adv - in 1. P&I Adv - 3. P&I Adv - 5. Prepaid in 7. Foreclosure 9. REO
Grace Period delinquent 1 month delinquent 3+ months Full
B. P&I Adv - < one 2. P&I Adv - 4. Mat. 6. Specially 8. Bankruptcy 10. DPO
month delinq delinquent 2 months Balloon/Assumed P&I Serviced
11. Modification
=================================================================================================================================
Page 17 of 20
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Specially Serviced Loan Detail
==============================================================================================================================
Beginning Specially
Disclosure Scheduled Interest Maturity Property Serviced
Control # Balance Rate Date Type Status Code(1) Comments
==============================================================================================================================
==============================================================================================================================
(1) Legend
1) Request for waiver of 4) Loan with Borrower 7) Loans Paid Off
Prepayment Penalty Bankruptcy
2) Payment default 5) Loan in Process of 8) Loans Returned to Master Servicer
Foreclosure
3) Request for Loan Modification 6) Loan now REO Property
or Workout
==============================================================================================================================
Appendix A
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Modified Loan Detail
===============================================================================================================================
Disclosure Modification
Control # Date Modification Description
-------------------------------------------------------------------------------------------------------------------------------
===============================================================================================================================
Appendix B
ABN AMRO Structured Asset Securities Corporation Statement Date:11/13/97
LaSalle National Bank GMAC Commercial Mortgage Corporation, as Servicer Payment Date: 11/13/97
Commercial Mortgage Pass-Through Certificates Prior Payment: NA
Administrator: Series 1997-LLI Record Date: 10/31/97
Xxx Xxxxxx (800)
246-5761 ABN AMRO Acct: 99-9999-99-9
000 X. XxXxxxx
Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Realized Loss Detail
===============================================================================================================================
Beginning Gross Aggregate Net Net
Dist. Disclosure Appraisal Scheduled Gross Proceeds Liquidation Liquidation Proceeds Realized
Date Control # Date Balance Proceeds as a % of Expenses * Proceeds as a % of Loss
Sched Sched.
Principal Balance
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Current Total 0.00 0.00 0.00 0.00 0.00
Cumulative 0.00 0.00 0.00 0.00 0.00
===============================================================================================================================
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc..
Appendix C
EXHIBIT I
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
Structured Asset Securities Corporation
Commercial Mortgage Pass-Through Certificates, Series 1997-LLI
COMPARATIVE FINANCIAL STATUS REPORT
as of ____________________
---------------------------------------------------------------------------------------------------------------
S4 S57 S58 P7 P8 S72 S69 S70 S65 S66
---------------------------------------------------------------------------------------------------------------
Original Underwriting
---------------------------------------------------------------------------------------------------------------
Information
---------------------------------------------------------------------------------------------------------------
Basis Year
---------------------------------------------------------------------------------------------------------------
Last
Property Scheduled Paid Annual Financial
Prospectus Inspect Loan Thru Debt Info as of % Total $ (1)
ID City State Date Balance Date Service Date Occ Revenue NOI DSCR
yy/mm yy/mm
---------------------------------------------------------------------------------------------------------------
List all loans currently in deal with or with out information largest to smallest loan
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Total: $ $ WA $ $ WA
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
===============================================================================================================
Received
---------------------------------------------------------------------------------------------------------------
Financial Information: Loans Balance
---------------------------------------------------------------------------------------------------------------
# % $ %
---------------------------------------------------------------------------------------------------------------
Current Full Year:
---------------------------------------------------------------------------------------------------------------
Current Full Yr. received with DSC LESS THAN 1:
---------------------------------------------------------------------------------------------------------------
Prior Full Year:
---------------------------------------------------------------------------------------------------------------
Prior Full Yr. received with DSC LESS THAN 1:
---------------------------------------------------------------------------------------------------------------
Quarterly Financials:
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
X0 X00 X00 X00 X00 X00 X00 X00 X00 X00 X00
------------------------------------------------------------------------------------------------
2nd Preceding Annual Operating Preceding Annual Operating
------------------------------------------------------------------------------------------------
Information Information
------------------------------------------------------------------------------------------------
as of ___________ Normalized as of ___________ Normalized
------------------------------------------------------------------------------------------------
Financial Financial
Prospectus Info as of % Total $ (1) Info as of % Total $ (1)
ID Date Occ Revenue NOI DSCR Date Occ Revenue NOI DSCR
yy/mm yy/mm
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Total: WA $ $ WA WA $ $ WA
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
================================================================================================
Required
------------------------------------------------------------------------------------------------
Loans Balance
------------------------------------------------------------------------------------------------
# % $ %
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------
X0 X00 X00 X00 X00 X00 (2)
-------------------------------------------------------------------------------
Trailing Financial Net Change
-------------------------------------------------------------------------------
Information
-------------------------------------------------------------------------------
Month Reported "Actual" Preceding & Basis
-------------------------------------------------------------------------------
%
Prospectus FS Start FS End Total $ (%) % Total (1)
ID Date Date Revenue NOI DSCR Occ Rev DSC
yy/mm yy/mm
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Total: WA $ $ WA WA $ WA
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
===============================================================================
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
EXHIBIT J
FORM OF DELINQUENT LOAN STATUS REPORT
Structured Asset Securities Corporation
Commercial Mortgage Pass-Through Certificates, Series 0000-XXX
XXXXXXXXXX LOAN STATUS REPORT
as of ____________________
------------------------------------------------------------------------------------------------------------------------------------
X0 X00 X00 X00 X00 X00 or S63 P8 P7 P37 P39
------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c)
------------------------------------------------------------------------------------------------------------------------------------
Short Name Paid Scheduled Total P&I Total
Prospectus (When Property Sq Ft or Thru Loan Advances Expenses
ID Appropriate) Type City State Units Date Balance To Date To Date
------------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FCL - Foreclosure
------------------------------------------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Annual or Trailing 12 months
------------------------------------------------------------------------------------------------------------------------------------
* Workout Strategy should match the CSSA Loan file using abreviated words in
place of a code number such as (FCL - In Foreclosure, MOD - Modification,
DPO - Discount Payoff, NS - Note Sale, BK - Bankrupcy, PP - Payment Plan,
TBD - To Be Determined etc...)
------------------------------------------------------------------------------------------------------------------------------------
It is possible to combine the status codes if the loan is going in more
than one direction. (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO)
------------------------------------------------------------------------------------------------------------------------------------
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
X0 X00 X00 X00 X00 X00 X00 X00 X00
------------------------------------------------------------------------------------------------------------------------------------
(d) (e)=a+b+c+d (f)
------------------------------------------------------------------------------------------------------------------------------------
Other Value
Advances Current Current using NOI
Prospectus (Taxes & Total Monthly Interest Maturity LTM NOI Cap Rate & Cap Valuation
ID Escrow) Exposure P&I Rate Date Date LTM NOI LTM DSCR Assigned Rate Date
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FORM OF DELINQUENT LOAN STATUS REPORT (continued)
Structured Asset Securities Corporation
Commercial Mortgage Pass-Through Certificates, Series 0000-XXX
XXXXXXXXXX LOAN STATUS REPORT
as of ____________________
------------------------------------------------------------------------------------------------------------------------------------
X0 X00 X00 X00 X00 X00 X00 X00 X00 X00
-----------------------------------------------------------------------------------------------------------------------------------
(g)=(.92*f)-e (h)=(g/e)
-----------------------------------------------------------------------------------------------------------------------------------
Appraisal
Short Name BPO or Loss using Estimated Expected
Prospectus (When Property City State Internal 92% Appr. Recovery Transfer Closing Date NOI FCL Sale Workout
ID Appropriate) Type Value** or BPO (f) % Date Date Filed Date Strategy Comments
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FCL - Foreclosure
------------------------------------------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Annual or Trailing 12 months
------------------------------------------------------------------------------------------------------------------------------------
* Workout Strategy should match the CSSA Loan file using abreviated etc...
------------------------------------------------------------------------------------------------------------------------------------
It is possible to combine the status codes if the loan is going in more than on
------------------------------------------------------------------------------------------------------------------------------------
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT K
FORM OF HISTORICAL LOAN MODIFICATION REPORT
Structured Asset Securities Corporation
Commercial Mortgate Pass-Through Certificates, Series 0000-XXX
XXXXXXXXXX LOAN MODIFICATION REPORT
as of _________________
---------------------------------------------------------------------------------------------------------------------------
X0 X00 X00 X00 X00 X0* X0* P50* P50* P25*
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Balance Balance at
When the
Mod / Sent to Effective # Mths
Prospectus Extention Effect Speical Date of Old for Rate New Old
ID City State Flag Date Servicer Rehabilitation Rate Change Rate P&I
===========================================================================================================================
THIS REPORT IS HISTORICAL
---------------------------------------------------------------------------------------------------------------------------
Information is as of modification each line it should not change in the future only new modifications should be added.
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
===========================================================================================================================
Total For All Loans:
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Total For Loans in Current Month:
---------------------------------------------------------------------------------------------------------------------------
# of Loans $ Balance
---------------------------------------------------------------------------------------------------------------------------
Modifications:
---------------------------------------------------------------------------------------------------------------------------
Maturity Date Extentions:
---------------------------------------------------------------------------------------------------------------------------
Total:
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
* The information in these columns is from a particular point in time and should not change on this report once assigned.
---------------------------------------------------------------------------------------------------------------------------
(1) Actual principal loss taken by bonds
---------------------------------------------------------------------------------------------------------------------------
(2) Expected future loss due to a rate reduction. This is just an estimate calculated at the time of the modification.
---------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
S4 P25* P11* P11* P47
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
(2) Est.
Future
Total # Interest
Mths (1) Loss to
for Realized Trust $
Prospectus New Old New Change Loss to (Rate
ID P&I Maturity Maturity of Mod Trust $ Reduction) COMMENT
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
EXHIBIT L
FORM OF HISTORICAL LOSS ESTIMATE REPORT
Structural Asset Securities Corporation
Commercial Mortgage Pass-Through Certificates
Series 0000-XXX
XXXXXXXXXX LOSS ESTIMATE REPORT (REO-SOLD or DISCOUNTED PAYOFF)
as of ______________________
-----------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 X00 X00 X00/X0 X00 X00 X0 X00 X00xX00
-----------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d) (e) (f) (g)
-----------------------------------------------------------------------------------------------------------------------------------
Latest
Appraisal
Short Name % or Effect Net Amt
Prospectus (When Property Received Brokers Date of Sales Received Scheduled Total P&I Total
ID Appropriate) Type City State From Sale Opinion Sale Price from Sale Balance Advanced Expense
===================================================================================================================================
-----------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
-----------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
Total all Loans:
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
S4
---------------------------------------------------------------------------------------------------------
(h) (i)=d-(f+g+h) (k)=i-e (m) Date (n)=k+m (o)=n/e
---------------------------------------------------------------------------------------------------------
Date Minor
Loss Adj Total Loss Loss % of
Prospectus Servicing Actual Losses Passed Minor Adj Passed with Scheduled
ID Fees Expense Net Proceeds Passed thru thru to Trust thru Adjustment Balance
=========================================================================================================
---------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
---------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated
---------------------------------------------------------------------------------------------------------
=========================================================================================================
Total all Loans:
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Current Month Only:
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
EXHIBIT M
FORM OF REO STATUS REPORT
Structured Asset Securities Corporation
Commercial Mortgage Pass-Through, Series 1997-LLI
REO STATUS REPORT
as of ____________________
-------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 X00 X00 X00 xx X0 X0 X00 X00 X00
-------------------------------------------------------------------------------------------------------------------------
S63 (a) (b) (c) (d)
-------------------------------------------------------------------------------------------------------------------------
Prospectus Short Name Prope City State Sq Ft Paid Scheduled Total Total Other
ID (When rty or Thru Loan P&I Expenses Advances
Appropriate) Type Units Date Balance Advances To Date (Taxes &
To Date Escrow)
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
X0 X00 X00 X00 X00 X00 X00
---------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (f)
---------------------------------------------------------------------------------------------------------------------
Prospectus Total Current Maturity LTM LTM Cap Valuation Value Appraisal
ID Exposure Monthly Date NOI NOI / Rate Date using BPO or
P&I Date DSC Assign NOI & Internal
Cap Rate Value**
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
S4
-----------------------------------------------------------------------------------------------------
(g)=(.92*f)-(h)=(g/e)
-----------------------------------------------------------------------------------------------------
Prospectus Loss Estimated Transfer REO Pending Pending
ID using Recovery Date Aquisition Closing Offers Comments
92% % Date Date
Appr. or
BPO (f)
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value
EXHIBIT N
FORM OF WATCH LIST
Structured Asset Securities Corporation
Commercial Mortgage Pass-Through Certificates, Series 1997-LLI
SERVICER WATCH LIST
as of ____________________
------------------------------------------------------------------------------------------------------------------------------------
X0 X00 X00 X00 X00 X0 X0 X00 X00
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Prospectus Short Name Property City State Scheduled Paid Maturity LTM Comment / Reason on Watch List
ID (When Type Loan Thru Date DSCR
Appropriate) Balance Date
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List all loans on watch list and reason sorted in decending balance order.
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Total: $
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*LTM - Last 12 months either trailing or last annual
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EXHIBIT O
Form of NOI ADJUSTMENT WORKSHEET for "year"
Structured Asset Securities Corporation
Commercial Mortgage Pass-Through Certificates, Series 1997-LLI
NOI ADJUSTMENT WORKSHEET FOR "year"
as of ____________________
PROPERTY OVERVIEW
-------------
LB Control Number
-------------
Current Balance/Paid to Date
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Property Name
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Property Type
--------------------------------------------------------------------------------------------
Property Address, City, State
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Net Rentable Square Feet
-------------
Year Built/Year Renovated
-----------------------------------------
Year of Operations Borrower Adjustment Normalized
-----------------------------------------
Occupancy Rate *
-----------------------------------------
Average Rental Rate
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* Occupancy rates are year end or the ending date of the financial statement for the period.
INCOME:
Number of Mos.Annualized "Year"
-------------------------------------------------------------------
Period Ended Borrower Adjustment Normalized
Statement Classification Actual
-------------------------------------------------------------------
Rental Income (Category 1)
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Rental Income (Category 2)
-------------------------------------------------------------------
Rental Income (Category 3)
-------------------------------------------------------------------
Pass Throughs/Escalations
-------------------------------------------------------------------
Other Income
-------------------------------------------------------------------
-------------------------------------------------------------------
Effective Gross Income $0.00 $0.00 $0.00
-------------------------------------------------------------------
Normalized - Full year Financial statements that have been reviewed by the underwriter or
Servicer
OPERATING EXPENSES:
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Real Estate Taxes
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Property Insurance
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Utilities
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General & Administration
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Repairs and Maintenance
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Management Fees
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Payroll & Benefits Expense
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Advertising & Marketing
-------------------------------------------------------------------
Professional Fees
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Other Expenses
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Ground Rent
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Total Operating Expenses $0.00 $0.00 $0.00
-------------------------------------------------------------------
-------------------------------------------------------------------
Operating Expense Ratio
-------------------------------------------------------------------
-------------------------------------------------------------------
Net Operating Income $0.00 $0.00 $0.00
-------------------------------------------------------------------
-------------------------------------------------------------------
Leasing Commissions
-------------------------------------------------------------------
Tenant Improvements
-------------------------------------------------------------------
Replacement Reserve
-------------------------------------------------------------------
Total Capital Items $0.00 $0.00 $0.00
-------------------------------------------------------------------
-------------------------------------------------------------------
N.O.I. After Capital Items $0.00 $0.00 $0.00
-------------------------------------------------------------------
-------------------------------------------------------------------
Debt Service (per Servicer) $0.00 $0.00 $0.00
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Cash Flow after debt service $0.00 $0.00 $0.00
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(1)DSCR: (NOI/Debt Service)
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-------------------------------------------------------------------
DSCR: (after reserves\Cap exp.)
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Source of Financial Data:
-------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
Notes and Assumptions:
================================================================================
This report should be completed by the Servicer for any "Normalization" of the
Borrowers numbers.
The "Normalized" column is used in the Operating Statement Analysis Report.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statement.
Income: Comments
Expense: Comments
Capital Items: Comments
(1) Used in the Comparative Financial Status Report
EXHIBIT P
Form of OPERATING STATEMENT ANALYSIS REPORT
Structured Asset Securities Corporation
Commercial Mortgage Pass-Through Certificates, Series 1997-LLI
OPERATING STATEMENT ANALYSIS REPORT
as of ____________________
PROPERTY OVERVIEW
--------------
LB Control Number
--------------
-------------
Current Balance/Paid to Date
---------------------------------------------------------------------------------------------------
Property Name
---------------------------------------------------------------------------------------------------
Property Type
---------------------------------------------------------------------------------------------------
Property Address, City, State
---------------------------------------------------------------------------------------------------
Net Rentable Square Feet
--------------------------
Year Built/Year Renovated
-----------------------------------------------------------------
Year of Operations Underwriting 1994 1995 1996 Trailing
-----------------------------------------------------------------
Occupancy Rate *
-----------------------------------------------------------------
Average Rental Rate
-----------------------------------------------------------------
* Occupancy rates are year end or the ending date of the financial statement for the period.
INCOME: No. of Mos.
--------------
Number of Mos. Prior Year Current Yr.
------------------------------------------------------------------------------------------
Period Ended Underwriting 1994 1995 1996 97 Trailing** 1996-Base 1996-1995
--------------
Statement Classification Base Line Normalized Normalized Normalized as of / /97 Variance Variance
------------------------------------------------------------------------------------------
Rental Income (Category 1)
------------------------------------------------------------------------------------------
Rental Income (Category 2)
------------------------------------------------------------------------------------------
Rental Income (Category 3)
------------------------------------------------------------------------------------------
Pass Through/Escalations
------------------------------------------------------------------------------------------
Other Income
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Effective Gross Income $0.00 $0.00 $0.00 $0.00 $0.00 % %
------------------------------------------------------------------------------------------
Normalized - Full year Financial statements that have been reviewed by the underwriter or
Servicer
** Servicer will not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
------------------------------------------------------------------------------------------
Real Estate Taxes
------------------------------------------------------------------------------------------
Property Insurance
------------------------------------------------------------------------------------------
Utilities
------------------------------------------------------------------------------------------
General & Administration
------------------------------------------------------------------------------------------
Repairs and Maintenance
------------------------------------------------------------------------------------------
Management Fees
------------------------------------------------------------------------------------------
Payroll & Benefits Expense
------------------------------------------------------------------------------------------
Advertising & Marketing
------------------------------------------------------------------------------------------
Professional Fees
------------------------------------------------------------------------------------------
Other Expenses
------------------------------------------------------------------------------------------
Ground Rent
------------------------------------------------------------------------------------------
Total Operating Expenses $0.00 $0.00 $0.00 $0.00 $0.00 % %
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Operating Expense Ratio
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Net Operating Income $0.00 $0.00 $0.00 $0.00 $0.00
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Leasing Commissions
------------------------------------------------------------------------------------------
Tenant Improvements
------------------------------------------------------------------------------------------
Replacement Reserve
------------------------------------------------------------------------------------------
Total Capital Items $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
N.O.I. After Capital Items $0.00 $0.00 $0.00 $0.00 $0.00
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Debt Service (per Servicer) $0.00 $0.00 $0.00 $0.00 $0.00
------------------------------------------------------------------------------------------
Cash Flow after debt service $0.00 $0.00 $0.00 $0.00 $0.00
------------------------------------------------------------------------------------------
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(1) DSCR: (NOI/Debt Service)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
DSCR: (after reserves\Cap exp.)
------------------------------------------------------------------------------------------
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Source of Financial Data:
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(ie. operating statements, financial statements, tax return, other)
Notes and Assumptions:
===========================================================================================================================
The years shown above will roll always showing a three year history. 1995 is the
current year financials; 1994 is the prior year financials.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statement.
Rental Income need to be broken down whenever possible differently for each
property type as follows: Retail: 1) Base Rent 2)Percentage rents on cashflow
Hotel: 1)Room Revenue 2)Food/Beverage Nursing Home: 1)Private 2) Medicaid
3) Medicare
Income: Comment
Expense: Comment
Capital Items: Comment
(1) Used in the Comparative Financial Status Report
EXHIBIT Q
Exceptions to Representations and Warranties
Clause of
Section 2(b): Exception:
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(xiv) No certificates of occupancy were obtainable for the Xxxxx
Xxxxxx Property.
(xx) With respect to the DDR/DRA Properties known as the Broadway
Marketplace Property, the Perimeter Pointe Property, and the
Shoppers World Property, affirmative insurance has been
provided in the related title policy to cover such taxes and
governmental assessments.
(xxi) Such amounts required under the DDR/DRA loan are provided for
as the requirement of the minimum balance in the operating
accounts for the DDR/DRA Borrowers.
(xxvii) One of the Mortgaged Properties securing the Xxxxxxxx Loan
known as the Pacific Gateway Center Property was formerly part
of the site of a synthetic rubber manufacturing plant (the
"Plant") and owned and operated by, among others, Shell Oil
Company ("Shell") and related wastes were disposed of near the
Pacific Gateway Center Property. In connection with a
conveyance of this disposal area back to Shell by an affiliate
of the Xxxxxxxx Borrower, Shell agreed to indemnify the
Xxxxxxxx affiliate and any successors in interest against (i)
any costs of remediation of the affected areas and (ii) any
suit for damages for personal injury or property damage brought
by neighboring landowners. Environmental studies have detected
the presence of groundwater contamination and limited soil
contamination on parcels near the disposal area, including
parcels that form a part of the Pacific Gateway Center
Property. On September 25, 1997, the Xxxxxxxx Borrower was
notified that an undefined area associated with the operation
of the Plant will be listed on the NPL of Superfund sites
effective October 27, 1997. In addition, the Pacific Gateway
Center Property is located near an existing Superfund site and
contaminants associated with this site have been detected in
the groundwater in the vicinity of the Pacific Gateway Center
Property. Pursuant to an agreement (the "Shell Indemnity")
between Shell and an affiliate of the Xxxxxxxx Borrower, Shell
has agreed to (i) indemnify and hold harmless any
successor of the affiliate of the Xxxxxxxx Borrower and any
subsequent purchasers, tenants and lenders, from any liability
relating to clean up or remediation costs for the affected area
or for any contamination resulting from the interrelationship
of the nearby Superfund site and the affected area and (ii)
indemnify and hold harmless any successor of the Xxxxxxxx
Borrower from any liability arising out of any third party tort
claims for personal injury or property damage. (Shell has
confirmed that the Xxxxxxxx Borrower and LB Realty and its
successors in interest (and their successors in interest) are
indemnified parties under the Shell Indemnity.) In addition,
the Xxxxxxxx Borrower and the Xxxxxxxx X.X. have entered into
an indemnification agreement, whereby they have agreed to
indemnify LB Holdings for environmental liabilities that might
arise with respect to the Pacific Gateway Center Property to
the extent LB Holdings and its successors in interest do not
recover under the Shell Indemnity.
(xxvii) With respect to the Courtyard Loan, the Courtyard Borrower is
not required to indemnify the mortgagee and its successors and
assigns from any liability for damages arising out of bodily
injury to persons or damage to property caused by or resulting
from the gross negligence or willful misconduct of the
mortgagee or its successors and assigns (or with respect to the
Courtyard Properties located in Georgia, resulting from the
sole negligence or willful misconduct of mortgagee or its
successors and assigns).
(xxxi)(G)(1) With respect to the Arden Loan, the lease covering an
immaterial portion of the property known as 000 Xxxxx Xxxxxx
Xxxxxxxxx, which consists of the parking facility for such
property, has a term of five years beyond the maturity date of
the Arden Loan.
(xxxi)(J) With respect to the ground lease entered into in connection
with an immaterial portion of the Arden property known as 000
Xxxxx Xxxxxx Xxxxxxxxx, the estoppel letter provides that the
leasehold mortgagee will have the right to enter into a new
lease with the lessor on the same terms and conditions as such
ground lease.
2