Exhibit 99.4
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 18, 2001, between Greenwich Capital Financial Products,
Inc. ("GCFP"), a Delaware corporation, as seller (in such capacity, together
with its successors and permitted assigns hereunder, the "Seller"), and Salomon
Brothers Mortgage Securities VII, Inc., a Delaware corporation ("SBMS VII"), as
purchaser (in such capacity, together with its successors and permitted assigns
hereunder, the "Purchaser").
RECITALS
GCFP desires to sell, assign, transfer and otherwise convey to SBMS
VII, without recourse, and SBMS VII desires to purchase, subject to the terms
and conditions set forth herein, the multifamily and commercial mortgage loans
(the "Mortgage Loans") identified on the schedule annexed hereto as Exhibit A
(the "Mortgage Loan Schedule"), as such schedule may be amended from time to
time pursuant to the terms hereof.
SBMS VII intends to create a trust (the "Trust"), the primary assets of
which will be the Mortgage Loans, certain other multifamily and commercial
mortgage loans (the "Other Loans"; and, together with the Mortgage Loans, the
"Securitized Loans"). Beneficial ownership of the assets of the Trust (such
assets collectively, the "Trust Fund") will be evidenced by a series of mortgage
pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. and Xxxxx'x Investors Service, Inc. (together,
the "Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be subject to registration under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of December 1, 2001 (the "Pooling and Servicing Agreement"), among SBMS
VII, as depositor, Midland Loan Services, Inc., as master servicer ( in such
capacity, the "Master Servicer"), as general special servicer (in such capacity,
the "General Special Servicer") and as special servicer for the mortgage loans
identified therein as the "Birch Run Mortgage Loan Pair" (in such capacity, the
"Birch Run Special Servicer"), Xxxxx Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"), JPMorgan Chase Bank as certificate administrator and as tax
administrator (in such capacities, the "Certificate Administrator" and the "Tax
Administrator"), Fortress CBO Investments I, Ltd. as the holder of the mortgage
note for the mortgage loan identified therein as the "Birch Run Companion
Mortgage Loan" (the "Birch Run Companion Mortgage Loan Noteholder") and Allied
Capital Corporation as the holder of the mortgage note for the Mortgage Loan
identified therein as the "MJ Ocala Hilton Companion Mortgage Loan" (the "MJ
Ocala Hilton Companion Mortgage Loan Noteholder"). Capitalized terms used but
not otherwise defined herein have the respective meanings assigned to them in
the Pooling and Servicing Agreement as in full force and effect on the Closing
Date (as defined in Section 1 hereof). It is anticipated that SBMS VII will
transfer the Mortgage Loans to the Trust contemporaneously with its purchase of
the Mortgage Loans hereunder.
The Depositor will acquire certain of the Other Loans from Salomon
Brothers Realty Corp. ("SBRC"), certain of the Other Loans from Artesia Mortgage
Capital Corporation
("AMCC") and the remaining Other Loan from Allied Capital Corporation ("Allied";
and, together with SBRC and AMCC, the "Other Loan Sellers").
SBMS VII intends to sell the Registered Certificates to Xxxxxxx Xxxxx
Xxxxxx Inc. ("SSBI"), Greenwich Capital Markets, Inc. ("Greenwich Capital"),
Credit Suisse First Boston Corporation ("CSFB"), X.X. Xxxxxx Securities Inc.
("X.X. Xxxxxx") and First Union Securities, Inc. ("Wachovia Securities")
(collectively, in such capacity, the "Underwriters"), pursuant to an
underwriting agreement, dated as of the date hereof (the "Underwriting
Agreement"), between SBMS VII and the Underwriters; and SBMS VII intends to sell
the remaining Certificates (the "Non-Registered Certificates") to SSBI, pursuant
to a certificate purchase agreement, dated as of the date hereof (the
"Certificate Purchase Agreement"), between SBMS VII and SSBI. The Registered
Certificates are more fully described in the prospectus dated December 10, 2001
(the "Basic Prospectus"); and the supplement to the Basic Prospectus dated
December 18, 2001 (the "Prospectus Supplement"; and, together with the Basic
Prospectus, the "Prospectus"), as each may be amended or supplemented any time
hereafter. Certain classes of the Non-Registered Certificates are more fully
described in the private placement memorandum dated December 18, 2001 (the
"Memorandum"), as it may be amended or supplemented at any time hereafter.
GCFP will indemnify SBMS VII, SSBI, Greenwich Capital, CSFB, X.X.
Xxxxxx, Wachovia Securities and certain related parties with respect to the
disclosure regarding the Mortgage Loans and GCFP contained in the Prospectus,
the Memorandum and certain other disclosure documents and offering materials
relating to the Certificates, pursuant to an indemnification agreement dated as
of December 18, 2001 (the "Indemnification Agreement"), among GCFP, SBMS VII,
SSBI, Greenwich Capital, CSFB, X.X. Xxxxxx and Wachovia Securities.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey
(without recourse) to the Purchaser, and the Purchaser agrees to purchase,
subject to the terms and conditions set forth herein, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on December 27, 2001,
or such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on their respective due dates in
December 2001 (individually, on a loan-by-loan basis, and collectively, the
"Cut-off Date"), the Mortgage Loans will have an aggregate principal balance,
after application of all payments of principal due on the Mortgage Loans on or
before such date, whether or not received, of $461,295,737 subject to a variance
of plus or minus 5%. The purchase price for the Mortgage Loans shall be as set
forth in the price confirmation between the Seller and the Purchaser, and will
include accrued interest on the Mortgage Loans at their respective Net Mortgage
Rates from and including December 1, 2001 to but not including the Closing Date,
and shall be paid to the Seller by wire transfer in immediately available funds
on the Closing Date (or by such other method as shall be mutually acceptable to
the parties hereto).
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SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to its receipt and
acceptance of the purchase price referred to in Section 1 hereof, the Seller
does hereby transfer, assign, set over and otherwise convey to the Purchaser,
without recourse but subject to the terms of this Agreement, all the right,
title and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, including, without limitation, all of
the Seller's right, title and interest in and to the proceeds of any related
title, hazard or other insurance policies received by the Seller on or with
respect to the Mortgage Loans after the Cut-off Date and any Additional
Collateral. The Seller shall, within 15 days of the discovery of an error on the
Mortgage Loan Schedule, amend the Mortgage Loan Schedule and deliver to the
Purchaser or its designee an amended Mortgage Loan Schedule. The Mortgage Loan
Schedule, as it may be amended, shall conform to the requirements set forth in
this Agreement.
(b) The Purchaser shall be entitled to receive all scheduled payments
of principal and interest due on the Mortgage Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
deliver or cause to be delivered to the Purchaser or its designee: (i) the
Mortgage File and any Additional Collateral (other than reserve funds and escrow
payments) with respect to each Mortgage Loan; (ii) in the case of any Mortgage
Loan that has an original principal balance of $15,000,000 or more, and whose
Borrower is a single member limited liability company, an Opinion of Counsel to
the effect that such Borrower will not dissolve upon the bankruptcy,
dissolution, liquidation or death of the single member and that applicable law
provides that creditors of the single member may only attach assets of the
member, including membership interests in the Borrower, but not assets of the
Borrower; and (iii) in the case of any Mortgage Loan that has an original
principal balance of $20,000,000 or more, an Opinion of Counsel to the effect
that the related Borrower will not be consolidated in any insolvency proceeding
involving any other party. Unless the Purchaser notifies the Seller in writing
to the contrary, the designated recipient of the items described in the
preceding sentence shall be the Custodian.
If the Seller cannot deliver on the Closing Date any original or
certified recorded document or original policy of title insurance which is to be
delivered as part of the related Mortgage File, solely because the Seller is
delayed in making such delivery by reason of the fact that such original or
certified recorded document has not been returned by the appropriate recording
office or such original policy of title insurance has not yet been issued, then
the Seller shall notify the Purchaser, in writing, of such delay (unless the
Trustee shall have provided the Purchaser with an exception report indicating
such delay), and the Seller shall deliver such documents to the Purchaser or its
designee promptly upon the Seller's receipt thereof.
In addition, unless previously delivered by the Seller to the Purchaser
or its designee, the Seller shall, at its expense, deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser or its designee,
the following items, within 10 days following the Closing Date (or, if any of
the following items are not in the actual possession of the Seller,
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as soon as reasonably practical, but in any event within 30 days, after the
Closing Date): (i) copies of the Mortgage Files for the respective Mortgage
Loans; (ii) originals or copies of all financial statements, leases, rent rolls
and tenant estoppels in the possession or under the control of the Seller that
relate to the Mortgage Loans and, to the extent they are not required to be a
part of a Mortgage File in accordance with the definition thereof, originals or
copies of all documents, certificates and opinions in the possession or under
the control of the Seller that were delivered by or on behalf of the related
Borrowers in connection with the origination of the Mortgage Loans and that are
necessary for the ongoing servicing and administration of the Mortgage Loans;
and (iii) all unapplied reserve funds and escrow payments in the possession or
under the control of the Seller that relate to the Mortgage Loans, other than
those that are to be retained by a sub-servicer or primary servicer that will
continue to act on behalf of the Purchaser or its servicing agent. Unless the
Purchaser notifies the Seller in writing to the contrary, the designated
recipient of the items described in clauses (i) - (iii) of the preceding
sentence shall be the Master Servicer.
The Seller shall also provide to the Purchaser or its designee the
initial data on the Mortgage Loans (as of the Closing Date or the most recent
earlier date for which such date is available) contemplated by the Loan Set-up
File, the Loan Periodic Update File, the Operating Statement Analysis Report and
the Property File.
(d) The Seller shall be responsible for all reasonable costs and
expenses associated with recording and/or filing any and all assignments and
other instruments of transfer to the Purchaser with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement, provided that the Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer; and provided, further, that, in those instances where
the public recording office retains the original assignment of Mortgage or
assignment of Assignment of Leases, the Seller shall obtain or cause to be
obtained therefrom, and forward to the Purchaser or its designee, a certified
copy of the recorded original. If any such assignment or other instrument of
transfer is lost or returned unrecorded or unfiled, as the case may be, because
of a defect therein, and the Seller receives notice to such effect from the
Purchaser or its designee, then the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be.
The Seller shall provide the Purchaser or its designee with a power of attorney
to enable it or them to record any loan documents that the Purchaser has been
unable to record.
(e) Under generally accepted accounting principles ("GAAP"), the Seller
shall report its transfer of the Mortgage Loans to the Purchaser, as provided
herein, as a sale of those assets to the Purchaser in exchange for the
consideration specified in Section 1 hereof. In connection with the foregoing,
the Seller shall cause all of its records to reflect such transfer as a sale (as
opposed to a secured loan) and to reflect that the Mortgage Loans are no longer
property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser,
as provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
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before the Closing Date, take all actions reasonably required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser. The
fact that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section
4, except as such remedies are otherwise limited by the terms of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser, each of the representations and warranties set forth
in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty)
to and for the benefit of the Purchaser, each of the representations and
warranties set forth in Exhibit C.
(c) It is understood and agreed that the representations and warranties
set forth in this Section 4 shall survive delivery of the respective Mortgage
Files to the Purchaser or its designee and shall inure to the benefit of the
Purchaser for so long as any of the Mortgage Loans remains outstanding,
notwithstanding any restrictive or qualified endorsement or assignment.
SECTION 4A. Representations, Warranties and Covenants of Purchaser.
The Purchaser hereby represents and warrants, as of the Closing Date,
that:
(a) The Purchaser is a duly formed corporation, validly existing and in
good standing under the laws of the State of Delaware.
(b) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
(c) This Agreement, assuming due authorization, execution and delivery
by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
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(d) The execution and delivery of this Agreement by the Purchaser, and
the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or instrument to which it is a party or which is applicable to it or
any of its assets.
(e) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(f) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the Purchaser
from entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, is likely to materially and adversely affect either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Seller.
(g) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed.
SECTION 5. Notice of Breach; Cure, Repurchase and the Special Reserve
Account.
(a) If the Seller discovers or receives notice that there has been a
Material Breach or a Material Document Defect, then, not later than the end of
the applicable Initial Resolution Period, the Seller shall, subject to
subsection (b) below, (i) cure such Material Breach or Material Document Defect,
as the case may be, in all material respects or (ii) repurchase each affected
Mortgage Loan (each, a "Defective Mortgage Loan") at the related Purchase Price
provided for in the Pooling and Servicing Agreement, which Purchase Price shall
be deposited or delivered in accordance with the directions of the Purchaser;
provided that if (i) any such Material Breach or Material Document Defect, as
the case may be, does not impact whether the Defective Mortgage Loan was, is or
will continue to be, a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) such Material Breach or
Material Document Defect, as the case may be, is capable of being cured but not
within the applicable Initial Resolution Period, (iii) the Seller has commenced
and is diligently proceeding with the cure of such Material Breach or Material
Document Defect, as the case may be, within the applicable Initial Resolution
Period, and (iv) the Seller shall have delivered to the Purchaser a
certification executed on behalf of the Seller by an officer thereof setting
forth the reason that such Material Breach or Material Document Defect, as the
case may be, is not capable of being cured within the applicable Initial
Resolution Period and what actions the Seller is pursuing in
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connection with the cure thereof and stating that the Seller anticipates that
such Material Breach or Material Document Defect, as the case may be, will be
cured within an additional period equal to any applicable Resolution Extension
Period, then the Seller shall have an additional period equal to any applicable
Resolution Extension Period to complete such cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, on or after
June 30, 2003, if the Seller receives notice of a Material Document Defect with
respect to any Mortgage Loan, if such Material Document Defect constitutes a
Recording Omission, and if such Mortgage Loan is still subject to the Pooling
and Servicing Agreement and the Controlling Class Representative so consents in
its sole discretion, then the Seller may establish a Recording Omission Reserve
or a Recording Omission Credit as contemplated by Section 5(c) in lieu of
repurchasing such Mortgage Loan (but in no event later than such repurchase
would have to have been completed and without diminishing its cure/repurchase
obligations in respect of any other Material Document Defect or Material Breach
relating to such Mortgage Loan). Any such repurchase of a Defective Mortgage
Loan shall be on a whole loan, servicing released basis (subject to any right of
a Designated Sub-Servicer to continue to sub-service such Defective Mortgage
Loan as set forth in the related Designated Sub-Servicer Agreement). The Seller
shall have no obligation to monitor the Mortgage Loans regarding the existence
of a Material Breach or a Material Document Defect, but if the Seller has actual
knowledge of a Material Breach or Material Document Defect with respect to a
Mortgage Loan, it will notify the Purchaser.
If a Material Document Defect exists with respect to any Mortgage Loan,
if such Material Document Defect consists of the Seller's failure to deliver any
related Specially Designated Mortgage Loan Document on or before the Closing
Date, and if the Seller escrows with the Purchaser or its designee, in
accordance with the Pooling and Servicing Agreement as in full force and effect
on the Closing Date, within 15 days of the Closing Date, cash in the amount of
25% of the Cut-off Date Principal Balance of such Mortgage Loan (such cash
amount, the "Purchase Price Security Deposit"), then the Initial Resolution
Period applicable to the remediation of such Material Document Defect shall be
extended until the 30th day following the Closing Date. Any Purchase Price
Security Deposit shall be maintained in an account substantially similar to the
Special Reserve Account (as defined below) and will be subject to investment at
the direction and for the benefit of the Seller in substantially the same
manner, and subject to substantially the same conditions, as funds in the
Special Reserve Account. The Seller may obtain a release of the Purchase Price
Security Deposit for any Mortgage Loan (net of any amounts payable therefrom
pursuant to the Pooling and Servicing Agreement as in full force and effect on
the Closing Date), together with any related investment income, upon such
Mortgage Loan's being paid in full or otherwise satisfied, liquidated or removed
from the Trust Fund or upon the subject Material Document Defect being remedied
in all material respects.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Seller as contemplated
by this Section 5(a), then, prior to the subject repurchase, at the request of
the Seller, the Purchaser or its designee shall use reasonable efforts, subject
to the terms of the related Mortgage Loans, to prepare and, to the extent
necessary and appropriate, have executed by the related Borrower and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loans therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage
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Loan Schedule as directly corresponding thereto; provided that, if such
Cross-Collateralized Group is still subject to the Pooling and Servicing
Agreement, then no such termination shall be effected unless and until the
Seller has delivered or caused to be delivered to the Purchaser and its
designees: (i) an Opinion of Counsel to the effect that such termination will
not cause an Adverse REMIC Event to occur with respect to any REMIC Pool or an
Adverse Grantor Trust Event with respect to either Grantor Trust Pool, (ii)
written confirmation from each Rating Agency that such termination will not
cause an Adverse Rating Event to occur with respect to any Class of Rated
Certificates and (iii) written consent to such termination from the Controlling
Class Representative, which consent may be granted or withheld in its sole
discretion; and provided, further, that the Seller may, at its option, purchase
the entire subject Cross-Collateralized Group in lieu of terminating the
cross-collateralization. All costs and expenses incurred by the Purchaser or its
designees, pursuant to this paragraph shall be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased. If the
cross-collateralization of any Cross-Collateralized Group cannot be terminated
as contemplated by this paragraph, then, for purposes of (i) determining whether
any Breach or Document Defect is a Material Breach or Material Document Defect,
as the case may be, and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
If any Defective Mortgage Loan is to be repurchased as contemplated by
this Section 5(a), the Seller shall amend the Mortgage Loan Schedule to reflect
the removal of the Defective Mortgage Loan and shall forward such amended
schedule to the Purchaser.
Except with respect to Breaches related to requirements that Mortgage
Loan Documents provide for the Borrower to pay certain costs, it is understood
and agreed that the obligations of the Seller set forth in this Section 5(a) to
cure a Material Breach or a Material Document Defect or repurchase the related
Defective Mortgage Loan(s), constitute the sole remedies available to the
Purchaser with respect to a Breach or Document Defect. With respect to Breaches
related to the provisions of Mortgage Loan Documents requiring that the related
Borrower bear the costs and expenses associated with any particular action or
matter under such Mortgage Loan Document(s), then the Seller shall within 90
days of the Seller's receipt of written direction from the Purchaser or its
servicing agent, pay the amount of any such costs and expenses borne by the
Trust that are the basis of such Breach. Upon its making such payments, the
Seller shall be deemed to have cured such Breach in all respects. Provided such
payment is made in full, this paragraph describes the sole remedy available to
the Certificateholders and the Trustee on their behalf regarding any such
Breach, regardless of whether it constitutes a Material Breach, and the Seller
shall not be obligated to repurchase the subject Mortgage Loan on account of
such Breach or otherwise cure such Breach.
If any REO Property in respect of any Mortgage Loan is subject to the
Pooling and Servicing Agreement, and if there exists with respect to such REO
Property any alleged Material Breach or Material Document Defect, then the
Seller shall be notified promptly and in writing by the applicable Special
Servicer of any offer that it receives to purchase such REO Property. Upon the
receipt of such notice by the Seller, the Seller shall then have the right to
repurchase such REO Property from the Trust at a purchase price equal to the
amount of such offer. The Seller shall have three (3) Business Days to purchase
such REO Property from the date that it was notified of such offer. The
applicable Special Servicer shall be obligated to provide the Seller with any
appraisal or other third-party reports relating to such REO Property
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within its possession to enable the related Mortgage Loan Seller to evaluate
such REO Property. Any sale of a Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of any related REO Property, to a Person other than the
Seller shall be (i) without recourse of any kind (either expressed or implied)
by such Person against the Seller and (ii) without representation or warranty of
any kind (either expressed or implied) by the Seller to or for the benefit of
such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the subject Mortgage Loan or REO Property) shall not prejudice any claim of the
Trust against the Seller for repurchase of the subject Mortgage Loan or REO
Property. The provisions of this Section 5 regarding remedies against the Seller
for a Material Breach or Material Document Defect with respect to any Mortgage
Loan shall also apply to the related REO Property.
Notwithstanding the Seller's failure to correct or cure the Material
Document Defect or Material Breach or purchase the subject REO Property, the
provisions above regarding notice of offers related to such REO Property and the
Seller's right to purchase such REO Property shall apply. If a court of
competent jurisdiction issues a final order that the Seller is or was obligated
to repurchase the related Mortgage Loan or REO Property or the Seller otherwise
accepts liability, then, after the expiration of any applicable appeal period,
but in no event later than the termination of the Trust pursuant to the Pooling
and Servicing Agreement, the Seller will be obligated to pay to the Trust the
amount, if any, by which the applicable Purchase Price exceeds any Liquidation
Proceeds received upon such liquidation (including those arising from any sale
to the Seller); provided that the prevailing party in such action shall be
entitled to recover all costs, fees and expenses (including reasonable
attorneys' fees) related thereto.
If the Seller purchases the Birch Run REO Property, as contemplated by
this Section 5(a), in connection with a Material Breach or a Material Document
Defect, then: (i) the Seller shall be deemed to have done so on behalf of itself
and the Birch Run Companion Mortgage Loan Noteholder; and (ii) the Birch Run
Co-Lender Agreement shall be deemed to govern the relationship between the
Seller (with the Seller being deemed the "Note A Lender" thereunder) and the
Birch Run Companion Mortgage Loan Noteholder in all respects as if the Seller
had repurchased the Mortgage Loan identified in the Pooling and Servicing
Agreement as the "Birch Run Pooled Mortgage Loan", as contemplated by this
Section 5(a), in connection with a Material Breach or Material Defect, and the
Birch Run REO Property had thereafter been acquired on behalf of the Seller and
the Birch Run Companion Mortgage Loan Noteholder by their servicing agent. The
Seller shall assume the obligations of the "Note A Lender" under the Birch Run
Co-Lender Agreement in connection with any purchase, pursuant to this Section
5(a), of the Mortgage Loan identified in the Pooling and Servicing Agreement as
the "Birch Run Pooled Mortgage Loan" or of any Birch Run REO Property.
(b) It shall be a condition to any repurchase of a Defective Mortgage
Loan by the Seller pursuant to Section 5(a) that (i) the Purchaser shall have
executed and delivered such instruments of transfer or assignment then 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 Defective Mortgage
Loan (including any property acquired in respect thereof or proceeds of any
insurance policy with respect thereto), to the extent that such ownership
interest was transferred
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to the Purchaser hereunder and (ii) the Purchaser or its assignee shall release
or cause the release to the Seller or its designee of the Mortgage File, any
Additional Collateral, all insurance policies and proceeds thereunder, the
Servicing File and any Escrow Payments and/or Reserve Funds held by or on behalf
of the Purchaser (or its assignee) with respect to such Mortgage Loan.
(c) If, on or after June 30, 2003, the Seller receives notice of a
Material Document Defect with respect to any Mortgage Loan, which Material
Document Defect constitutes a Recording Omission, then the Seller may, with the
consent of the Purchaser or its designees, which consent may be granted or
withheld in its sole discretion, in lieu of repurchasing such Mortgage Loan (as
and to the extent contemplated by Section 5(a)), but in no event later than such
repurchase would have to have been completed, establish a Recording Omission
Credit or a Recording Omission Reserve with the Master Servicer in accordance
with the Pooling and Servicing Agreement. In furtherance of the preceding
sentence, the Purchaser or its designee shall establish one or more accounts
(individually and collectively, the "Special Reserve Account"), each of which
shall be an Eligible Account, and the Purchaser or its designee shall deposit
any Recording Omission Reserve into the Special Reserve Account within one
Business Day of receipt. The Seller may direct the Purchaser to invest or cause
the investment of the funds deposited in the Special Reserve Account in one or
more Permitted Investments that bear interest or are sold at a discount and that
mature, unless payable on demand, no later than the Business Day prior to the
next Master Servicer Remittance Date. The Purchaser shall act upon the written
instructions of the Seller with respect to the investment of funds in the
Special Reserve Account in such Permitted Investments, provided that in the
absence of appropriate written instructions from the Seller, the Purchaser shall
have no obligation to invest or direct the investment of funds in such Special
Reserve Account. All income and gain realized from the investment of funds
deposited in such Special Reserve Account shall be for the benefit of the Seller
and shall be withdrawn by the Purchaser or its designee and remitted to the
Seller on each Master Servicer Remittance Date (net of any losses incurred), and
the Seller shall remit to the Purchaser from the Seller's own funds for deposit
into such Special Reserve Account the amount of any realized losses (net of
realized gains) in respect of such Permitted Investments immediately upon
realization of such net losses and receipt of written notice thereof from the
Purchaser; provided that the Seller shall not be required to make any such
deposit for any realized loss which is incurred solely as a result of the
insolvency of the federal or state depository institution or trust company that
holds such Special Reserve Account. Neither the Purchaser nor any of its
designees shall have any responsibility or liability with respect to the
investment directions of the Seller, the investment of funds in the Special
Reserve Account in Permitted Investments or any losses resulting therefrom. A
Recording Omission Credit shall (i) entitle the Purchaser or its designee to
draw upon the Recording Omission Credit on behalf of the Purchaser upon
presentation of only a sight draft or other written demand for payment, (ii)
permit multiple draws by the Purchaser or its designee, and (iii) be issued by
such issuer and containing such other terms as the Purchaser or its designee may
reasonably require to make such Recording Omission Credit reasonably equivalent
security to a Recording Omission Reserve in the same amount. Once a Recording
Omission Reserve or Recording Omission Credit is established with respect to any
Mortgage Loan, the Purchaser or its designee shall, from time to time, withdraw
funds from the related Special Reserve Account or draw upon the related
Recording Omission Credit, as the case may be, and apply the proceeds thereof to
pay the losses or expenses directly incurred by the Purchaser or its designee as
a result of a Recording Omission. The Recording Omission Reserve or Recording
Omission Credit or any unused
10
balance thereof with respect to each Mortgage Loan will be released to the
Seller by the Purchaser upon the earlier of the Seller's cure of all Recording
Omissions with respect to such Mortgage Loan (provided that the Purchaser has
been reimbursed with respect to all losses and expenses relating to Recording
Omissions with respect to such Mortgage Loan) or such Mortgage Loan no longer
being a part of the Trust Fund under the Pooling and Servicing Agreement.
SECTION 6. Closing.
(a) The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
(b) The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
made pursuant to Section 4 of this Agreement shall be true and correct
in all material respects as of the Closing Date or such other date as
specified in Exhibit C;
(ii) All documents specified in Section 7 of this Agreement
(the "Closing Documents"), in such forms as are reasonably acceptable
to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as it affects the obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Purchaser or its designee, all documents and funds required to be so
delivered pursuant to Section 2 of this Agreement;
(iv) All other terms and conditions of this Agreement required
to be complied with by the Seller and the Purchaser, including, without
limitation, in the case of the Purchaser, payment of the purchase
price, on or before the Closing Date shall have been complied with, and
the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(v) The Seller shall have paid all fees, costs and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement;
and
(vi) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
(c) Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
11
SECTION 7. Closing Documents.
The Closing Documents shall consist of the following:
(a) this Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) the Indemnification Agreement duly executed and delivered by the
Seller, the Purchaser and each of SSBI, Greenwich Capital, CSFB, X.X. Xxxxxx and
Wachovia Securities.
(c) the Pooling and Servicing Agreement duly executed and delivered by
SBMS VII, the Master Servicer, the Special Servicer and the Trustee;
(d) an Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, in
his or her individual capacity, and dated the Closing Date, and upon which the
Purchaser, SSBI, Greenwich Capital, CSFB, X.X. Xxxxxx, Wachovia Securities and
the Rating Agencies (collectively, the "Interested Parties") may rely, attaching
thereto as exhibits the organizational documents of the Seller, as in full force
and effect on the date hereof, and the Resolutions described in clause (g)
below;
(e) a certificate of good standing with respect to the Seller issued by
the Secretary of State of the State of Delaware dated not earlier than 10 days
prior to the Closing Date;
(f) a certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Interested Parties may
rely;
(g) resolutions of the Seller authorizing the transactions contemplated
by this Agreement, which resolutions will be in full force and effect, and will
not have been rescinded, as of the Closing Date;
(h) a written opinion of counsel for the Seller, which may be delivered
by in-house counsel, substantially in the form of Exhibit D-3A hereto (with any
modifications required by any Rating Agency, and subject to such reasonable
assumptions, qualifications and limitations as may be requested by counsel for
the Seller and acceptable to counsel for the Purchaser), dated the Closing Date
and addressed to the Purchaser, each of the other parties to the Pooling and
Servicing Agreement and each of the other Interested Parties;
(i) a written opinion of Sidley Xxxxxx Xxxxx & Xxxx, as special counsel
for the Seller, substantially in the form of Exhibit D-3B hereto (with any
modifications required by any Rating Agency, and subject to such reasonable
assumptions, qualifications and limitations as may be requested by counsel for
the Seller and acceptable to counsel for the Purchaser), dated the Closing Date
and addressed to the Purchaser, each of the other parties to the Pooling and
Servicing Agreement and each of the other Interested Parties;
12
(j) such other written opinions as may be required by either Rating
Agency (including, without limitation, a favorable opinion as to the "true sale"
characterization of the transfer of the Mortgage Loans contemplated by this
Agreement);
(k) a written letter of Sidley Xxxxxx Xxxxx & Xxxx, as special counsel
to the Seller, substantially in the Form of Exhibit D-3C, relating to the
disclosure in the Prospectus regarding the Mortgage Loans and GCFP, dated the
Closing Date and addressed to the Purchaser and each of the other Interested
Parties (except for the Rating Agencies); and
(l) one or more accountants' comfort letters, addressed, and in form
and substance reasonably acceptable, to SSBI, Greenwich Capital, CSFB, X.X.
Xxxxxx and Wachovia Securities, relating to the information regarding the
Mortgage Loans contained in the Prospectus and Memorandum that is of a
statistical nature.
SECTION 8. Costs.
Any costs and expenses incurred by either party hereto in connection
with the transactions contemplated hereunder shall be borne by the parties in
accordance with the terms of that certain Term Sheet, dated September 21, 2001
(the "Term Sheet"), between SSBI, Greenwich Capital, AMCC and Artesia Banking
Corp.
SECTION 9. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to the Purchaser at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxxxx Xxxxx, facsimile no.: 000-000-0000, or
to such other address or facsimile number as may hereafter be furnished to the
Seller in writing by the Purchaser; and, if to the Seller, addressed to the
Seller at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, attention: Xxxx
Xxxxxxx, facsimile no.: 000-000-0000, or to such other address or facsimile
number as may hereafter be furnished to the Purchaser in writing by the Seller.
SECTION 10. Characterization.
The parties hereto agree that it is their express intent that the
conveyance contemplated by this Agreement be, and be treated for all purposes
as, a sale by the Seller of all the Seller's right, title and interest in and to
the Mortgage Loans. The parties hereto further agree that it is not their
intention that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to secure a debt or other obligation of the Seller. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Seller, then: (a) this Agreement shall be deemed
to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder(s) of those assets in accordance with the terms thereof (other
than scheduled payments of interest and principal due on or before the Cut-off
Date) and all proceeds of the conversion, voluntary or
13
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by SBMS VII to the Trustee of its interests in the
Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an
assignment of any security interest created hereunder; (d) the possession by the
Purchaser or any successor thereto of the related Mortgage 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 Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction; and (e) notifications to, and acknowledgments, receipts
or confirmations from, persons or entities holding such property, shall be
deemed notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents (as applicable) of the Purchaser or
any successor thereto for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions, including the filing of UCC financing
statements, 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 and the
Pooling and Servicing Agreement.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
14
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE LAWS AND
DECISIONS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES). THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. In connection with its transfer of the Mortgage Loans to the
Trust as contemplated by the recitals hereto, SBMS VII is expressly authorized
to assign its rights and obligations under this Agreement, in whole or in part,
to the Trustee for the benefit of the registered holders and beneficial owners
of the Certificates. To the extent of any such assignment, the Trustee
(including acting through the Master Servicer and Special Servicer pursuant to
the terms of the Pooling and Servicing Agreement), for the benefit of the
registered holders and beneficial owners of the Certificates, shall be the
Purchaser hereunder. In connection with the transfer of any Mortgage Loan by the
Trust as contemplated by the terms of the Pooling and Servicing Agreement, the
Trustee, for the benefit of the registered holders and beneficial owners of the
Certificates, is expressly authorized to assign its rights and obligations under
this Agreement, in whole or in part, to the transferee of such Mortgage Loan. To
the extent of any such assignment, such transferee shall be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller and the Purchaser, and their
respective successors and permitted assigns.
SECTION 17. Amendments.
(a) No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
(b) Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, no amendment of the Pooling and Servicing
Agreement executed after
15
the Closing Date that increases the obligations of or otherwise adversely
affects the Seller, shall be effective against the Seller.
SECTION 18. Entire Agreement.
Except as otherwise expressly contemplated hereby, this Agreement
constitutes the entire agreement and understanding of the parties with respect
to the matters addressed herein, and this Agreement supersedes any prior
agreements and/or understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
16
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
------------------------------
Name:
Title:
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
By:
------------------------------
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CONTROL
NUMBER LOAN / PROPERTY NAME LOAN NUMBER ORIGINATOR
101a Birch Run Outlet Center 00-0000000 GCFP
(Senior Portion)
102 Phoenix Marriott 00-0000000 GCFP
103 Imperial Apartments 00-0000000 GCFP
000 Xxxxxxx Xxxxx at Torrey Hills 00-0000000 GCFP
000 Xxxxx Xxxx Xxxxxx Xxxxxxxx 00000 GCFP
109 Hilton Garden Inn 00-0000000 GCFP
113 Lakeshore Marketplace 00-0000000 GCFP
Shopping Center
000 Xxxxxxx Xxxxx 00-0000000 GCFP
120 Holiday Inn Hotel and Resort 00-0000000 GCFP
- Tewksbury
121 Xxxx Station Shopping Center 12624 GCFP
000 Xxxxxxx & Xxxxxxxx Xxxxx 00000 GCFP
125 Xxxxxx City Self Storage 00-0000000 GCFP
128 Euclid Business Center 00-0000000 GCFP
129 0000 Xxxxxx Xxxxxxxxx 00-0000000 GCFP
Northeast
132 Cochrane Plaza 00-0000000 GCFP
133 Xxxx'x Home Improvement 00-0000000 GCFP
Warehouse
134 Millennium II Office 11663 GCFP
Building
137 Shadow Lakes Apartments 00-0000000 GCFP
000 Xxxxxxx Xxxxxx Xxxx 00000 GCFP
000 Xxxxxx Xxxxx Xxxxxx Xxxx 00-0000000 GCFP
142 0000 Xxxxxxxx Xxxxx Xxxx 00-0000000 GCFP
000 Xxxxxx Xxxx Xxxxxx Xxxx 00-0000000 GCFP
146 Freeport Distribution 12261 GCFP
149 5900 Xxxxxxxxx Boulevard 11777 GCFP
Office Building
152 Nexus and Valencia Shopping 00-0000000 GCFP
Center
155 000-000 Xxxxxx Xxxxxx & 00-0000000 GCFP
000-000 Xxxxx Xxxxxx
156 Xxxxxxxxx Village Apartments 00-0000000 GCFP
157 Sierra College Self Storage 00-0000000 GCFP
160 Holiday Inn Asheville Airport 00-0000000 GCFP
161 Princeton Belvidere 00-0000000 GCFP
000 Xxxxxxxx Xxxxxx 12104 GCFP
164 Albemarle Crossing 00-0000000 GCFP
165 Hannaford Ground Lease at 00-0000000 GCFP
Xxxxxxxxx
Xxxxxxxx
000 000 Xxxxxxxxxxxxx Xxxxxx 00-0000000 GCFP
000 Xxxxxxx Xxxxxxxx Xxxxxx 00000 GCFP
171 Mt. Xxxxxx Plaza 00-0000000 GCFP
172 Durango Mini-Storage & 12598 GCFP
Charleston
West Mini-Storage
000 Xxx Xxxxx Xxxxx 00-0000000 GCFP
000 Xxxxxxxxx Xxxxxxxxxx 00-0000000 GCFP
175 000-000 Xxxxxx Xxxxxx 00-0000000 GCFP
176 Aliso Viejo Town 00-0000000 GCFP
Center-Building # 0
000 0000 Xxxxx Xxxxxxxxx Xxxxxx 00-0000000 GCFP
000 00xx Xxxxxx and Greenway Road 00-0000000 GCFP
184 Evanston Northwestern Ground 00-0000000 GCFP
Lease
000 Xxxx Xxxxxx Village Office 00-0000000 GCFP
Building
187 Fairmount Greens Apartments 00-0000000 GCFP
000 Xxxxxxx Xxxxxx Shopping 12525 GCFP
Center
PROPERTY
CONTROL PROPERTY SIZE UNIT
NUMBER PROPERTY ADDRESS CITY STATE ZIP CODE SIZE TYPE
101a 00000 Xxxxx Xxxxx Xxxx Xxxxx Xxx XX 00000 723,536 SF
102 0000 Xxxxx 00xx Xxxxxx Xxxxxxx XX 00000 345 Rooms
103 000 Xxxxxxx Xxxxx xxx Xxxxxxxx Xxxx Xxxxxxxxxx XX 00000 546 Units
Xxxxx 000 Xxxx
000 00000 and 00000 Xxxxx Xxxxxxxx Xxxxxxx Xxx Xxxxx XX 00000 157,921 SF
108 0000 Xxxxxx Xxxx Xxxxxxxxxxx XX 00000 130,580 SF
109 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 161 Rooms
113 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 326,478 SF
115 000 Xxxxx 00 Xxxxx Xxxxxxx XX 00000 153,678 SF
120 00 Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000 237 Rooms
121 000-000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 87,480 SF
124 00 Xxxx Xxxx Xxxxxxxxxx XX 00000 91,760 SF
125 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx Xxxx XX 00000 90,993 SF
128 00000-00000 Xxxxxx Xxxxxx xxx Xxxxxx Xxxxx XX 00000 156,727 SF
10742-10862 Capital Avenue
129 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx Xxx Xxxxxx XX 00000 94,730 SF
132 000-000 Xxxxxxxx Xxxx Xxxxxx Xxxx XX 00000 82,050 SF
133 0000 Xxxxxxx Xxxxx Xxxxx Xxxxxx XX 00000 137,138 SF
134 0000 Xxxxxxxx Xxxxxx Xxxx Xxxxx XX 00000 58,500 SF
137 000 Xxxxxx Xxxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000 184 Units
138 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 84,530 SF
139 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx XX 00000 85,104 SF
142 0000 Xxxxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000 108,852 SF
144 0000-00 Xxxxx 00 Xxxx Xxxxxx Xxxx XX 00000 108,704 SF
146 0000 Xxxxx 00xx Xxxxxx Xxxxxxx XX 00000 245,166 SF
149 0000 Xxxxxxxxx Xxxxxxxxx Xxx Xxxx XX 00000 75,269 SF
152 9040 and 0000 Xxxx Xxxxxxxx Xxxx Xxxxxx XX 00000 62,774 SF
155 000-000 Xxxxxx Xxxxxx & 000-000 Xxxxx Xxxxxxxxx XX 00000 78,582 SF
Street
156 3651-3659 Xxxx 00xx Xxxxxx, 0000-0000 Xxxxxx XX 00000 119 Units
Xxxxxx Xxxx Xxxx, 0000-0000 Xxxxxxx
Xxxxxx
157 0000 Xxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 100,200 SF
160 000 Xxxxxxx Xxxx Xxxxxxxx XX 00000 150 Rooms
000 00-00 Xxxx Xxxxxx Xxxxxx XX 00000 54 Units
163 000 Xxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000 38,118 SF
164 0000-0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000 26,828 SF
165 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000 321,966 SF
167 000 Xxxxxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 33,607 SF
168 000-000 Xxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000 78,734 SF
171 0000-0000 Xxxxx Xxxxxxx Xxxxxx Xx. Xxxxxx XX 00000 76,738 SF
172 000 Xxxxx Xxxxxxx Xxxxx & 0000 Xxxx Xxx Xxxxx XX 00000 142,210 SF
Xxxxxxxxxx Xxxxxxxxx
000 0000-0000 & 1172-1198 Xxx Xxxxx Xxxxxx Xxx Xxxxx XX 00000 45,568 SF
174 0000 Xxxxxxxxx Xxxxxxx Xxxxxxx XX 00000 77,787 SF
175 000-000 Xxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000 27,075 SF
176 00000 Xxxxx Xxxxx Xxxx Xxxxx Xxxxx XX 00000 18,165 SF
180 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 15,120 SF
181 0000 Xxxx Xxxxxxxx Xxxx Xxxxxxx XX 00000 19,247 SF
000 Xxxx Xxxx xx Xxxxxxxxx Xxxxxx xxx Xxxxxx Xxxxx XX 00000 181,776 SF
South of Townline Road
185 0000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX 00000 30,919 SF
187 0000 Xxxxx 00xx Xxxxxx Xxxxxxx XX 00000 117 Units
188 5200 - 0000 Xxxxxxx Xxxxx Xx Xxxx XX 00000 33,785 SF
A-1
CONTROL
NUMBER LOAN / PROPERTY NAME LOAN NUMBER ORIGINATOR PROPERTY ADDRESS
190 00000 Xxxxxxxxx Xxxxxxxxx 00-0000000 GCFP 00000 Xxxxxxxxx Xxxxxxxxx
191 Park 2000 - Building K 400028 GCFP 0000 XxXxxx Xxxxx
192 Park 2000 - Building H 400027 GCFP 0000 XxXxxx Xxxxx
000 Xxxxxxx Mini Storage 400025 GCFP 0000 Xxxx Xxxxxxx Xxxx
196 150-170 Professional Center 00-0000000 GCFP 150-170 Xxxxxxxxxxxx Xxxxxx Xxxxx
Xxxxx
000 0, 9A & 0 Xxxxxx Xxxxxx 00-0000000 GCFP 9, 9A & 0 Summit Avenue
200 Newport Avenue Plaza 00-0000000 GCFP 00 Xxxxxxx Xxxxxx
202 Shoal Creek Mall Shopping 400024 GCFP 000-000 Xxxxxxxx Xxxxxxx
Xxxxxx
207 Holiday Inn Stillwater 12044 GCFP 0000 Xxxx Xxxxx Xxxxxx
209 943-955 North XxXxxx 00-0000000 GCFP 000-000 Xxxxx XxXxxx Xxxxxxxxx
Xxxxxxxxx
210 Holiday Inn Ponca City 12045 GCFP 0000 Xxxxx 00xx Xxxxxx
212 Eaglepointe Office Building 400032 GCFP 00 Xxxx Xxxxx Xxxxx Xxxxx
000 Xxxxx xx Xxxx 00-0000000 GCFP 12002 & 00000 Xxxx Xxxx Xxxxxxxxx
000 Xxxxxxxx Xxxxxxx Manor 00-0000000 GCFP 0000 Xxxx Xxxxxxxx Xxxxxxx Xxxxxxxxx
Apartments
217 XxXxxxx Medical Office 00-0000000 GCFP 0000 XxXxxxx Xxxxxxxxx Xxxxxxxxx
Building
000 Xxxxxxxx Xxxx Xxxx and 39th 00-0000000 GCFP 0000 Xxxx Xxxxxxxx Xxxx Xxxx
Xxxxx
223 Storage Inn 400029 GCFP 0000 Xxxxxxxxx Xxxx
229 Valley View Xxxxx Shopping 400022 GCFP 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx
Xxxxxx and Billboard Xxxx
000 0000 Xxxx Xxxxxx Xxxxxx Xxxx 00-0000000 GCFP 0000 Xxxx Xxxxxx Xxxxxx Xxxx
PROPERTY
CONTROL PROPERTY SIZE UNIT
NUMBER CITY STATE ZIP CODE SIZE TYPE
190 Xxxxxxxx XX 00000 40,176 SF
191 Xxx Xxxxx XX 00000 33,806 SF
192 Xxx Xxxxx XX 00000 16,748 SF
194 Xxx Xxxxx XX 00000 68,063 SF
000 Xxxxxxx Xxxx XX 00000 39,818 SF
000 Xxxxxxxxx XX 00000 20 Xxxxx
000 Xxxx Xxxxxxxxxx XX 00000 14,560 SF
202 Xxxxxxxxx XX 00000 67,249 SF
207 Xxxxxxxxxx XX 00000 141 Rooms
209 Xxxxx XX 00000 23,873 SF
210 Xxxxx Xxxx XX 00000 000 Xxxxx
000 Xxxxx Xxxx Xxxx XX 00000 22,000 SF
213 Xxxxxxxxxx XX 00000 16,312 SF
000 Xxxxx Xxxx XX 00000 57 Xxxxx
000 Xxxxxxxxxxx XX 00000 18,240 SF
220 Xxxxxxx XX 00000 8,609 XX
000 Xxx Xxxxx XX 00000 34,125 SF
229 Xxx Xxxxx XX 00000 14,424 SF
237 Xxxxxxx XX 00000 33,174 SF
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A INFORMATION FOR THE BIRCH RUN OUTLET CENTER JUNIOR PORTION, WHICH IS
ASSOCIATED WITH THE CLASS BR CERTIFICATES. THE BIRCH RUN OUTLET CENTER JUNIOR
PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
000x Xxxxx Xxx Xxxxxx Xxxxxx 00-0000000 GCFP 00000 Xxxxx Xxxxx Xxxx
(Junior Portion)
000x Xxxxx Xxx XX 00000 723,536 SF
A-2
CROSS
COLLATER-
ALIZED
MORTGAGE
CROSS LOAN GROUP
COLLATER- AGGREGATE
ALIZED CUT-OFF DATE
CONTROL (MORTGAGE PRINCIPAL
NUMBER LOAN / PROPERTY NAME LOAN GROUP) BALANCE
000x Xxxxx Xxx Xxxxxx Xxxxxx No 40,000,000
(Senior Portion)
102 Phoenix Marriott No 33,783,972
103 Imperial Apartments No 32,000,000
000 Xxxxxxx Xxxxx at Torrey No 29,361,014
Hills
108 Metro Park Office No 18,479,791
Building
109 Hilton Garden Inn No 17,915,342
000 Xxxxxxxxx Xxxxxxxxxxx No 15,953,338
Shopping Center
000 Xxxxxxx Xxxxx No 14,980,615
120 Holiday Inn Hotel and No 12,079,118
Resort - Tewksbury
121 Xxxx Station Shopping No 10,396,423
Center
000 Xxxxxxx & Xxxxxxxx Xxxxx No 9,871,661
125 Xxxxxx City Self Storage No 9,821,531
000 Xxxxxx Xxxxxxxx Xxxxxx No 9,425,438
129 0000 Xxxxxx Xxxxxxxxx No 8,731,254
Northeast
000 Xxxxxxxx Xxxxx No 8,202,054
133 Xxxx'x Home Improvement No 8,160,141
Warehouse
134 Millennium II Office No 8,023,713
Building
137 Shadow Lakes Apartments No 7,370,441
138 Medical Center West No 7,315,605
000 Xxxxxx Xxxxx Xxxxxx Xxxx No 7,040,981
142 0000 Xxxxxxxx Xxxxx East No 6,914,534
000 Xxxxxx Xxxx Xxxxxx Xxxx No 6,741,365
146 Freeport Distribution No 6,519,901
149 5900 Xxxxxxxxx No 6,249,297
Boulevard Office
Building
152 Nexus and Valencia No 5,855,649
Shopping Center
155 000-000 Xxxxxx Xxxxxx & No 5,175,647
000-000 Xxxxx Xxxxxx
156 Xxxxxxxxx Village No 5,138,996
Apartments
157 Sierra College Self No 4,993,158
Storage
160 Holiday Inn Asheville No 4,732,448
Airport
161 Princeton Belvidere No 4,729,348
000 Xxxxxxxx Xxxxxx No 4,643,570
000 Xxxxxxxxx Xxxxxxxx Yes (X2) 4,574,833
165 Hannaford Ground Lease Yes (X2) 4,574,833
at Albemarle
Crossing
167 000 Xxxxxxxxxxxxx Xxxxxx No 4,289,399
168 Palomar Commerce Center No 4,243,903
171 Mt. Xxxxxx Plaza No 3,996,753
172 Durango Mini-Storage & No 3,991,452
Charleston
West Mini-Storage
000 Xxx Xxxxx Xxxxx No 3,889,830
000 Xxxxxxxxx Xxxxxxxxxx No 3,886,643
175 000-000 Xxxxxx Xxxxxx No 3,872,584
ANTICI- SCHED-
ORIGINAL MASTER INTEREST PATED ULED
CONTROL OWNERSHIP PRINCIPAL MORTGAGE SERVICING RATE ACCRUAL LOAN NOTE REPAY- MATURITY
NUMBER INTEREST BALANCE RATE FEE RATE TYPE METHOD TYPE DATE MENT DATE DATE
101a Fee Simple 40,082,051 7.4660% 0.0625% Fixed Actual/360 Balloon 08/16/01 NAP 09/01/11
102 Fee Simple 34,000,000 8.0620% 0.0625% Fixed Actual/360 Balloon 07/23/01 NAP 08/01/11
103 Fee Simple 32,000,000 7.2190% 0.0625% Fixed Actual/360 Partial IO 10/17/01 11/01/11 11/01/31
104 Fee Simple 29,400,000 7.3580% 0.0625% Fixed Actual/360 Balloon 09/18/01 NAP 10/01/11
108 Fee Simple 18,505,000 7.2500% 0.0925% Fixed Actual/360 Balloon 09/14/01 NAP 10/01/11
109 Fee Simple 18,000,000 7.9440% 0.0625% Fixed Actual/360 Balloon 06/11/01 NAP 07/01/11
113 Fee Simple 15,993,000 7.6470% 0.0625% Fixed Actual/360 Balloon 07/30/01 NAP 08/01/11
115 Fee Simple 15,000,000 7.4600% 0.0625% Fixed Actual/360 Balloon 09/25/01 NAP 10/01/11
120 Fee Simple 12,120,000 7.5860% 0.0625% Fixed Actual/360 Balloon 09/21/01 NAP 10/01/11
121 Fee Simple 10,420,000 7.0300% 0.0925% Fixed Actual/360 Balloon 08/31/01 NAP 09/01/11
124 Fee Simple 9,900,000 7.8200% 0.0925% Fixed Actual/360 Balloon 06/15/01 NAP 07/01/11
125 Fee Simple 9,850,000 7.7850% 0.0625% Fixed Actual/360 Balloon 06/11/01 NAP 07/01/11
128 Fee Simple 9,450,000 7.4630% 0.0625% Fixed Actual/360 Balloon 07/18/01 NAP 08/01/11
129 Fee Simple 8,753,000 7.6400% 0.0625% Fixed Actual/360 Balloon 07/06/01 NAP 08/01/11
in part,
Leasehold
in part
132 Fee Simple 8,266,000 7.4100% 0.0625% Fixed Actual/360 Balloon 12/22/00 NAP 01/01/11
133 Fee Simple 8,200,000 7.1500% 0.0625% Fixed Actual/360 Balloon 04/18/01 NAP 05/01/11
134 Fee Simple 8,052,000 7.8940% 0.0925% Fixed Actual/360 Balloon 05/30/01 NAP 06/01/11
137 Fee Simple 7,400,000 7.3930% 0.0625% Fixed Actual/360 Balloon 05/09/01 NAP 06/01/11
138 Fee Simple 7,325,000 7.4900% 0.0925% Fixed Actual/360 Balloon 09/19/01 NAP 10/01/11
139 Fee Simple 7,050,000 7.5000% 0.0625% Fixed Actual/360 Balloon 09/10/01 NAP 10/01/08
142 Fee Simple 6,934,000 7.8900% 0.0625% Fixed Actual/360 Balloon 06/08/01 NAP 07/01/11
144 Fee Simple 6,750,000 7.5000% 0.0625% Fixed Actual/360 Balloon 09/10/01 NAP 10/01/08
146 Fee Simple 6,538,000 7.9400% 0.0925% Fixed Actual/360 Balloon 06/12/01 NAP 07/01/11
149 Fee Simple 6,296,500 8.2300% 0.0925% Fixed Actual/360 Balloon 10/17/00 NAP 11/01/10
152 Fee Simple 5,864,000 7.0700% 0.0625% Fixed Actual/360 Balloon 09/28/01 NAP 10/01/11
155 Fee Simple 5,207,000 7.7500% 0.0625% Fixed Actual/360 ARD 05/23/01 06/01/11 06/01/21
156 Fee Simple 5,150,000 7.2810% 0.0625% Fixed Actual/360 Balloon 08/07/01 NAP 09/01/11
157 Fee Simple 5,000,000 7.2320% 0.0625% Fixed Actual/360 Balloon 09/07/01 NAP 10/01/11
160 Leasehold 4,750,000 8.1400% 0.1325% Fixed Actual/360 Balloon 07/16/01 NAP 08/01/11
161 Fee Simple 4,740,000 7.0600% 0.1225% Fixed Actual/360 Balloon 08/24/01 NAP 09/01/11
163 Fee Simple 4,650,000 7.1900% 0.0925% Fixed Actual/360 Balloon 09/04/01 NAP 10/01/11
164 Fee Simple 2,470,000 7.2900% 0.1325% Fixed Actual/360 Balloon 09/28/01 NAP 10/01/11
165 Fee Simple 2,117,000 7.5600% 0.1325% Fixed Actual/360 Balloon 09/28/01 NAP 10/01/11
167 Fee Simple 4,300,000 7.6700% 0.0625% Fixed Actual/360 Balloon 07/13/01 NAP 08/01/11
168 Fee Simple 4,250,000 7.0400% 0.0925% Fixed Actual/360 Balloon 09/04/01 NAP 10/01/11
171 Fee Simple 4,000,000 7.0500% 0.0625% Fixed Actual/360 Balloon 10/03/01 NAP 11/01/11
172 Fee Simple 4,000,000 7.3500% 0.0925% Fixed Actual/360 Balloon 09/10/01 NAP 10/01/11
173 Fee Simple 3,900,000 7.4500% 0.0625% Fixed Actual/360 Balloon 07/31/01 NAP 08/01/11
174 Fee Simple 3,900,000 7.9900% 0.0625% Fixed Actual/360 Balloon 05/31/01 NAP 06/01/11
175 Fee Simple 3,900,000 8.1000% 0.0625% Fixed Actual/360 Balloon 11/02/00 NAP 12/01/10
A-3
CROSS
COLLATER-
ALIZED
MORTGAGE
CROSS LOAN GROUP
COLLATER- AGGREGATE
ALIZED CUT-OFF DATE ORIGINAL
CONTROL (MORTGAGE PRINCIPAL OWNERSHIP PRINCIPAL
NUMBER LOAN / PROPERTY NAME LOAN GROUP) BALANCE INTEREST BALANCE
176 Aliso Viejo Town No 3,871,611 Fee Simple 3,900,000
Xxxxxx-Xxxxxxxx # 0
000 0000 Xxxxx Milwaukee No 3,448,948 Fee Simple 3,463,000
Avenue
000 00xx Xxxxxx and No 3,345,549 Fee Simple 3,350,000
Xxxxxxxx Xxxx
000 Xxxxxxxx Xxxxxxxxxxxx No 3,200,000 Fee Simple 3,200,000
Ground Lease
000 Xxxx Xxxxxx Village No 3,195,843 Fee Simple 3,200,000
Office Building
187 Fairmount Greens No 3,115,303 Fee Simple 3,120,000
Apartments
000 Xxxxxxx Xxxxxx Shopping No 2,996,162 Fee Simple 3,000,000
Xxxxxx
000 00000 Xxxxxxxxx Xx 2,984,066 Fee Simple 3,000,000
Xxxxxxxxx
000 Xxxx 0000 - Xxxxxxxx X Yes (X3) 2,977,081 Leasehold 1,818,000
192 Park 2000 - Building H Yes (X3) 2,977,081 Leasehold 1,168,000
194 Xxxxxxx Mini Storage No 2,644,923 Fee Simple 2,662,500
196 150-170 Professional No 2,579,314 Fee Simple 2,600,000
Center Drive
197 9, 9A & 0 Xxxxxx Xxxxxx No 2,554,415 Fee Simple 2,560,000
000 Xxxxxxx Xxxxxx Plaza No 2,491,383 Fee Simple 2,500,000
000 Xxxxx Xxxxx Xxxx No 2,300,601 Fee Simple 2,310,000
Shopping Center
207 Holiday Inn Stillwater No 1,990,243 Fee Simple 2,000,000
000 000-000 North XxXxxx No 1,795,129 Fee Simple 1,800,000
Boulevard
210 Holiday Inn Ponca City No 1,791,219 Fee Simple 1,800,000
212 Eaglepointe Office No 1,697,814 Fee Simple 1,700,000
Building
213 Plaza on Xxxx No 1,689,164 Fee Simple 1,694,000
000 Xxxxxxxx Xxxxxxx Manor No 1,671,518 Fee Simple 1,675,000
Apartments
217 XxXxxxx Medical Office No 1,470,612 Fee Simple 1,475,000
Building
000 Xxxxxxxx Xxxx Xxxx and No 1,338,170 Fee Simple 1,340,000
39th Drive
223 Storage Inn No 1,261,572 Fee Simple 1,267,500
229 Valley View Xxxxx No 1,000,000 Fee Simple 1,000,000
Shopping Center and
Billboard Site
237 2436 East Indian School No 533,354 Fee Simple 534,000
Road
ANTICI- SCHED-
MASTER INTEREST PATED ULED
CONTROL MORTGAGE SERVICING RATE ACCRUAL LOAN NOTE REPAY- MATURITY
NUMBER RATE FEE RATE TYPE METHOD TYPE DATE MENT DATE DATE
176 7.6700% 0.0625% Fixed Actual/360 Balloon 12/26/00 NAP 01/01/11
180 7.8400% 0.0625% Fixed Actual/360 Balloon 05/01/01 NAP 05/01/11
181 7.3500% 0.0625% Fixed Actual/360 Balloon 09/27/01 NAP 10/01/11
184 7.1500% 0.0625% Fixed Actual/360 Interest 06/14/01 NAP 07/01/11
Only
185 7.4400% 0.0625% Fixed Actual/360 Balloon 09/28/01 NAP 10/01/11
187 6.8400% 0.0625% Fixed Actual/360 Balloon 09/18/01 NAP 10/01/11
188 7.5000% 0.0925% Fixed Actual/360 Balloon 09/24/01 NAP 10/01/11
190 7.4300% 0.0625% Fixed Actual/360 Balloon 03/15/01 NAP 04/01/11
191 7.6650% 0.0625% Fixed Actual/360 Balloon 06/26/01 NAP 07/01/11
192 7.6650% 0.0625% Fixed Actual/360 Balloon 06/26/01 NAP 07/01/11
194 8.0000% 0.0625% Fixed Actual/360 Balloon 04/25/01 NAP 05/01/11
196 7.9900% 0.0625% Fixed Actual/360 Balloon 10/26/00 NAP 11/01/10
197 7.1900% 0.1225% Fixed Actual/360 Balloon 08/20/01 NAP 09/01/11
200 7.9660% 0.1225% Fixed Actual/360 Balloon 05/18/01 NAP 06/01/11
202 7.8300% 0.0625% Fixed Actual/360 Balloon 04/27/01 NAP 05/01/11
207 8.8100% 0.0925% Fixed Actual/360 Balloon 05/18/01 NAP 06/01/11
209 8.0200% 0.0625% Fixed Actual/360 Balloon 06/15/01 NAP 07/01/11
210 8.8100% 0.0925% Fixed Actual/360 Balloon 05/18/01 NAP 06/01/11
212 7.4800% 0.0625% Fixed Actual/360 Balloon 09/07/01 NAP 10/01/11
213 7.8300% 0.0625% Fixed Actual/360 Balloon 06/04/01 NAP 07/01/11
214 7.4000% 0.0625% Fixed Actual/360 Balloon 08/31/01 NAP 09/01/11
217 7.6800% 0.0625% Fixed Actual/360 Balloon 06/21/01 NAP 07/01/11
220 7.2400% 0.0625% Fixed Actual/360 Balloon 09/27/01 NAP 10/01/11
223 7.9720% 0.0625% Fixed Actual/360 Balloon 06/14/01 NAP 07/01/11
229 7.8100% 0.0625% Fixed Actual/360 Balloon 12/13/01 NAP 04/01/11
237 7.7200% 0.0625% Fixed Actual/360 Balloon 09/27/01 NAP 10/01/11
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A INFORMATION FOR THE BIRCH RUN OUTLET CENTER JUNIOR PORTION, WHICH IS
ASSOCIATED WITH THE CLASS BR CERTIFICATES. THE BIRCH RUN OUTLET CENTER JUNIOR
PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
000x Xxxxx Xxx Xxxxxx Xxxxxx No 12,891,504 Fee Simple 12,917,949
(Junior Portion)
101b 7.4660% 0.0625% Fixed Actual/360 Balloon 08/16/01 NAP 09/01/11
A-4
STATED REMAIN-
ORIGINAL ORIGINAL ING TERM STATED
MONTHLY TERM TO AMORT- TO REMAINING CUT-OFF LOAN
DEBT MATURITY/ IZATION MATURITY/ AMORT- DATE BALANCE
CONTROL LOAN / SERVICE ARD TERM ARD IZATION TERM PRINCIPAL AT
NUMBER PROPERTY NAME PAYMENT (MONTHS) (MONTHS) (MONTHS) (MONTHS) BALANCE MATURITY/ARD
000x Xxxxx Xxx Xxxxxx Xxxxxx 279,326.94 120 360 117 357 40,000,000.00 35,370,807.03
(Senior Portion)
102 Phoenix Marriott 285,702.95 120 240 116 236 33,783,971.92 24,027,771.58
103 Imperial Apartments 217,623.97(a) 120 360 119 360 32,000,000.00 29,098,552.16
000 Xxxxxxx Xxxxx xx Xxxxxx Xxxxx 202,717.97 120 360 118 358 29,361,014.30 25,876,652.04
000 Xxxxx Xxxx Xxxxxx Xxxxxxxx 126,236.72 120 360 118 358 18,479,790.64 16,242,285.02
109 Hilton Garden Inn 138,259.83 120 300 115 295 17,915,341.54 14,814,367.80
000 Xxxxxxxxx Xxxxxxxxxxx 113,439.59 120 360 116 356 15,953,337.86 14,179,475.60
Shopping Center
000 Xxxxxxx Xxxxx 104,471.63 120 360 118 358 14,980,614.64 13,236,566.80
120 Holiday Inn Hotel and Resort 98,276.23 120 240 118 238 12,079,117.93 8,423,656.46
- Tewksbury
000 Xxxx Xxxxxxx Xxxxxxxx Xxxxxx 69,534.59 120 360 117 357 10,396,423.26 9,092,515.04
000 Xxxxxxx & Xxxxxxxx Xxxxx 71,404.30 120 360 115 355 9,871,661.40 8,816,280.69
125 Xxxxxx City Self Storage 70,804.99 120 360 115 355 9,821,530.57 8,764,272.23
000 Xxxxxx Xxxxxxxx Xxxxxx 65,836.51 120 360 116 356 9,425,438.21 8,339,996.35
129 0000 Xxxxxx Xxxxxxxxx 62,043.53 120 360 116 356 8,731,253.70 7,759,110.38
Northeast
000 Xxxxxxxx Xxxxx 57,288.51 120 360 109 349 8,202,054.12 7,283,110.88
133 Xxxx'x Home Improvement 55,383.35 120 360 113 353 8,160,140.72 7,180,291.03
Warehouse
134 Millennium II Office 58,488.81 120 360 114 354 8,023,713.11 7,182,428.98
Building
137 Shadow Lakes Apartments 51,200.77 120 360 114 354 7,370,440.78 6,519,463.99
000 Xxxxxxx Xxxxxx Xxxx 51,167.31 120 360 118 358 7,315,605.32 6,468,742.35
000 Xxxxxx Xxxxx Xxxxxx Xxxx 49,294.62 84 360 82 358 7,040,980.99 6,543,075.82
142 0000 Xxxxxxxx Xxxxx Xxxx 50,348.52 120 360 115 355 6,914,534.20 6,185,449.57
000 Xxxxxx Xxxx Xxxxxx Xxxx 47,196.98 84 360 82 358 6,741,364.77 6,264,646.69
146 Freeport Distribution 47,700.34 120 360 115 355 6,519,901.24 5,839,230.00
149 0000 Xxxxxxxxx Xxxxxxxxx 47,215.00 120 360 107 347 6,249,296.69 5,659,332.62
Office Building
152 Nexus and Valencia 39,289.40 120 360 118 358 5,855,649.15 5,122,909.48
Shopping Center
155 000-000 Xxxxxx Xxxxxx & 39,329.97 120 300 114 294 5,175,647.49 4,260,599.37
000-000 Xxxxx Xxxxxx
156 Xxxxxxxxx Village 35,240.43 120 360 117 357 5,138,995.85 4,523,345.36
Apartments
157 Sierra College Self Storage 34,047.79 120 360 118 358 4,993,157.99 4,386,582.06
160 Holiday Inn Asheville 37,102.89 120 300 116 296 4,732,447.54 3,930,558.78
Airport
161 Princeton Belvidere 31,726.57 120 360 117 357 4,729,347.67 4,139,402.61
000 Xxxxxxxx Xxxxxx 31,532.18 120 360 118 358 4,643,570.42 4,075,086.51
000 Xxxxxxxxx Xxxxxxxx 16,916.82 120 360 118 358 2,466,668.46 2,170,211.32
165 Hannaford Ground Lease at 17,963.70 120 216 118 214 2,108,165.02 1,320,659.09
Xxxxxxxxx
Xxxxxxxx
000 000 Xxxxxxxxxxxxx Xxxxxx 30,568.35 120 360 116 356 4,289,399.17 3,814,569.49
168 Palomar Commerce Center 28,389.62 120 360 118 358 4,243,903.14 3,709,954.37
000 Xx. Xxxxxx Xxxxx 26,746.55 120 360 119 359 3,996,753.45 3,492,125.21
172 Durango Mini-Storage & 29,170.48 120 300 118 298 3,991,452.10 3,233,861.91
Charleston
West Mini-Storage
000 Xxx Xxxxx Xxxxx 27,135.96 120 360 116 356 3,889,830.06 3,440,774.49
000 Xxxxxxxxx Xxxxxxxxxx 28,589.64 120 360 114 354 3,886,642.57 3,486,842.14
175 000-000 Xxxxxx Xxxxxx 28,889.16 120 360 108 348 3,872,583.83 3,495,236.90
176 Aliso Viejo Town 27,724.78 120 360 109 349 3,871,610.76 3,458,614.99
Xxxxxx-Xxxxxxxx # 0
000 0000 Xxxxx Milwaukee 25,025.08 120 360 113 353 3,448,948.14 3,085,541.29
Avenue
000 00xx Xxxxxx and Greenway 23,080.57 120 360 118 358 3,345,548.82 2,947,927.72
Road
000 Xxxxxxxx Xxxxxxxxxxxx 19,331.48(b) 120 Interest 115 Interest 3,200,000.00 3,200,000.00
Ground Lease Only Only
000 Xxxx Xxxxxx Village Office 22,243.54 120 360 118 358 3,195,843.45 2,822,375.13
Building
000 Xxxxxxxxx Xxxxxx Apartments 20,423.27 120 360 118 358 3,115,302.60 2,709,064.02
000 Xxxxxxx Xxxxxx Shopping 20,976.44 120 360 118 358 2,996,162.11 2,649,978.95
Center
190 00000 Xxxxxxxxx Xxxxxxxxx 20,832.83 120 360 112 352 2,984,066.04 2,645,603.12
000 Xxxx 0000 - Xxxxxxxx X 12,917.75 120 360 115 355 1,812,570.01 1,612,844.82
000 Xxxx 0000 - Xxxxxxxx H 8,299.19 120 360 115 355 1,164,511.44 1,036,195.59
194 Xxxxxxx Mini Storage 20,549.61 120 300 113 293 2,644,923.36 2,194,946.23
196 150-170 Professional 19,059.76 120 360 107 347 2,579,314.48 2,323,761.72
Center Drive
A-5
STATED REMAIN-
ORIGINAL ORIGINAL ING TERM STATED
MONTHLY TERM TO AMORT- TO REMAINING CUT-OFF LOAN
DEBT MATURITY/ IZATION MATURITY/ AMORT- DATE BALANCE
CONTROL LOAN / SERVICE ARD TERM ARD IZATION TERM PRINCIPAL AT
NUMBER PROPERTY NAME PAYMENT (MONTHS) (MONTHS) (MONTHS) (MONTHS) BALANCE MATURITY/ARD
197 9, 9A & 0 Xxxxxx Xxxxxx 17,359.65 120 360 117 357 2,554,414.60 2,243,225.91
000 Xxxxxxx Xxxxxx Plaza 18,284.89 120 360 114 354 2,491,382.86 2,233,874.74
000 Xxxxx Xxxxx Xxxx Shopping 16,677.01 120 360 113 353 2,300,601.16 2,057,715.40
Center
207 Holiday Inn Stillwater 16,524.48 120 300 114 294 1,990,242.83 1,686,107.24
000 000-000 North XxXxxx 13,232.87 120 360 115 355 1,795,128.51 1,610,699.25
Xxxxxxxxx
000 Xxxxxxx Xxx Xxxxx Xxxx 14,872.03 120 300 114 294 1,791,218.56 1,517,496.90
212 Eaglepointe Office 11,863.37 120 360 118 358 1,697,814.12 1,500,900.99
Xxxxxxxx
000 Xxxxx on Xxxx 12,229.81 120 360 115 355 1,689,164.35 1,508,929.93
000 Xxxxxxxx Xxxxxxx Manor 11,597.36 120 360 117 357 1,671,518.08 1,475,658.46
Apartments
217 XxXxxxx Medical Office 10,495.82 120 360 115 355 1,470,612.41 1,309,036.32
Building
000 Xxxxxxxx Xxxx Xxxx and 9,132.08 120 360 118 358 1,338,169.97 1,175,846.01
39th Drive
223 Storage Inn 9,759.27 120 300 115 295 1,261,572.30 1,044,024.21
229 Valley View Xxxxx Shopping 7,651.95 112 293 112 293 1,000,000.00 826,643.63
Center and Billboard Xxxx
000 0000 Xxxx Xxxxxx Xxxxxx Xxxx 3,814.58 120 360 118 358 533,354.45 474,279.09
------------
Footnotes: (a) Loan is interest only for the first 24 payments.
First Payment Date shown is first IO payment. Monthly
Debt Service Payment shown is the full P&I amount.
(b) Loan is interest only for the entire term. First
Payment Date shown is first IO payment. Monthly Debt
Service Payment shown is the interest only amount.
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A INFORMATION FOR THE BIRCH RUN OUTLET CENTER JUNIOR PORTION, WHICH IS
ASSOCIATED WITH THE CLASS BR CERTIFICATES. THE BIRCH RUN OUTLET CENTER JUNIOR
PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
000x Xxxxx Xxx Xxxxxx Xxxxxx 90,023.61 120 360 117 357 12,891,504.37 11,399,572.83
(Junior Portion)
A-6
YIELD YIELD
MAINTEN- MAINTEN-
DEFEASE- DEFEASE ANCE ANCE PREPAYMENT
CONTROL ANCE -ANCE END PERIOD PERIOD END PENALTY
NUMBER LOAN / PROPERTY NAME START DATE DATE START DATE DATE START DATE
000x Xxxxx Xxx Xxxxxx Xxxxxx 01/01/04 06/30/11 NAP NAP NAP
(Senior Portion)
102 Phoenix Marriott 01/01/04 04/30/11 NAP NAP NAP
103 Imperial Apartments NAP NAP 01/01/04 07/31/11 NAP
000 Xxxxxxx Xxxxx at Torrey 01/01/04 06/30/11 NAP NAP NAP
Hills
108 Metro Park Office Building 01/01/04 06/30/11 NAP NAP NAP
109 Hilton Garden Inn 01/01/04 03/31/11 NAP NAP NAP
000 Xxxxxxxxx Xxxxxxxxxxx 01/01/04 04/30/11 NAP NAP NAP
Shopping Center
000 Xxxxxxx Xxxxx 01/01/04 06/30/11 NAP NAP NAP
120 Holiday Inn Hotel and 01/01/04 06/30/11 NAP NAP NAP
Resort - Tewksbury
121 Xxxx Station Shopping 01/01/04 05/31/11 NAP NAP NAP
Center
124 Raymour & Xxxxxxxx Plaza 01/01/04 03/31/11 NAP NAP NAP
125 Xxxxxx City Self Storage NAP NAP 07/01/06 03/31/11 NAP
128 Euclid Business Center 01/01/04 04/30/11 NAP NAP NAP
129 0000 Xxxxxx Xxxxxxxxx 01/01/04 04/30/11 NAP NAP NAP
Northeast
000 Xxxxxxxx Xxxxx 01/01/04 09/30/10 NAP NAP NAP
133 Xxxx'x Home Improvement 01/01/04 01/31/11 NAP NAP NAP
Warehouse
134 Millennium II Office 01/01/04 02/28/11 NAP NAP NAP
Building
137 Shadow Lakes Apartments 01/01/04 02/28/11 NAP NAP NAP
138 Medical Center West 01/01/04 06/30/11 NAP NAP NAP
000 Xxxxxx Xxxxx Xxxxxx Xxxx 01/01/04 06/30/08 NAP NAP NAP
142 1698 Xxxxxxxx Drive East 01/01/04 03/31/11 NAP NAP NAP
000 Xxxxxx Xxxx Xxxxxx Xxxx 01/01/04 06/30/08 NAP NAP NAP
146 Freeport Distribution 01/01/04 03/31/11 NAP NAP NAP
149 0000 Xxxxxxxxx Xxxxxxxxx 01/01/04 07/31/10 NAP NAP NAP
Office Building
152 Nexus and Valencia NAP NAP 10/01/06 06/30/11 NAP
Shopping Center
155 000-000 Xxxxxx Avenue & 01/01/04 02/28/11 NAP NAP NAP
000-000 Xxxxx Xxxxxx
156 Xxxxxxxxx Village NAP NAP 09/01/06 05/31/11 NAP
Apartments
157 Sierra College Self Storage 01/01/04 06/30/11 NAP NAP NAP
160 Holiday Inn Asheville 01/01/04 04/30/11 NAP NAP NAP
Airport
161 Princeton Belvidere 01/01/04 05/31/11 NAP NAP NAP
000 Xxxxxxxx Xxxxxx 01/01/04 06/30/11 NAP NAP NAP
000 Xxxxxxxxx Xxxxxxxx 01/01/04 06/30/11 NAP NAP NAP
165 Hannaford Ground Lease at 01/01/04 06/30/11 NAP NAP NAP
Albemarle Crossing
167 000 Xxxxxxxxxxxxx Xxxxxx 01/01/04 04/30/11 NAP NAP NAP
168 Palomar Commerce Center 01/01/04 06/30/11 NAP NAP NAP
171 Mt. Xxxxxx Plaza 01/01/04 07/31/11 NAP NAP NAP
172 Durango Mini-Storage & 01/01/04 06/30/11 NAP NAP NAP
Charleston West
Mini-Storage
000 Xxx Xxxxx Xxxxx 01/01/04 04/30/11 NAP NAP NAP
000 Xxxxxxxxx Xxxxxxxxxx 01/01/04 02/28/11 NAP NAP NAP
175 000-000 Xxxxxx Xxxxxx 01/01/04 08/31/10 NAP NAP NAP
176 Aliso Viejo Town 01/01/04 09/30/10 NAP NAP NAP
Center-Building # 7
180 0000 Xxxxx Xxxxxxxxx Xxxxxx 01/01/04 01/31/11 NAP NAP NAP
000 00xx Xxxxxx and Greenway NAP NAP 10/01/06 06/30/11 NAP
Road
184 Evanston Northwestern 01/01/04 03/31/11 NAP NAP NAP
Ground Lease
000 Xxxx Xxxxxx Village Office 01/01/04 06/30/11 NAP NAP NAP
Building
187 Fairmount Greens Apartments 01/01/04 06/30/11 NAP NAP NAP
000 Xxxxxxx Xxxxxx Shopping 01/01/04 06/30/11 NAP NAP NAP
Center
190 00000 Xxxxxxxxx Xxxxxxxxx 01/01/04 12/31/10 NAP NAP NAP
191 Park 2000 - Building K 01/01/04 03/31/11 NAP NAP NAP
YIELD MAINTENANCE
YIELD INTEREST RATE YIELD
PREPAYMENT MAINTENANCE YIELD CONVERTED TO MAINTENANCE
CONTROL PENALTY END CALCULATION MAINTENANCE MONTHLY MORTGAGE INTEREST RATE
NUMBER DATE METHOD INTEREST RATE RATE REFERENCE DATE
101a NAP NAP NAP NAP NAP
102 NAP NAP NAP NAP NAP
103 NAP Type 1 Treasury Flat Yes Maturity
104 NAP NAP NAP NAP NAP
108 NAP NAP NAP NAP NAP
109 NAP NAP NAP NAP NAP
113 NAP NAP NAP NAP NAP
115 NAP NAP NAP NAP NAP
120 NAP NAP NAP NAP NAP
121 NAP NAP NAP NAP NAP
124 NAP NAP NAP NAP NAP
125 NAP Type 1 Treasury Flat Yes Maturity
128 NAP NAP NAP NAP NAP
129 NAP NAP NAP NAP NAP
132 NAP NAP NAP NAP NAP
133 NAP NAP NAP NAP NAP
134 NAP NAP NAP NAP NAP
137 NAP NAP NAP NAP NAP
138 NAP NAP NAP NAP NAP
139 NAP NAP NAP NAP NAP
142 NAP NAP NAP NAP NAP
144 NAP NAP NAP NAP NAP
146 NAP NAP NAP NAP NAP
149 NAP NAP NAP NAP NAP
152 NAP Type 1 Treasury Flat Yes Maturity
155 NAP NAP NAP NAP NAP
156 NAP Type 1 Treasury Flat No Maturity
157 NAP NAP NAP NAP NAP
160 NAP NAP NAP NAP NAP
161 NAP NAP NAP NAP NAP
163 NAP NAP NAP NAP NAP
164 NAP NAP NAP NAP NAP
165 NAP NAP NAP NAP NAP
167 NAP NAP NAP NAP NAP
168 NAP NAP NAP NAP NAP
171 NAP NAP NAP NAP NAP
172 NAP NAP NAP NAP NAP
173 NAP NAP NAP NAP NAP
174 NAP NAP NAP NAP NAP
175 NAP NAP NAP NAP NAP
176 NAP NAP NAP NAP NAP
180 NAP NAP NAP NAP NAP
181 NAP Type 1 Treasury Flat Yes Maturity
184 NAP NAP NAP NAP NAP
185 NAP NAP NAP NAP NAP
187 NAP NAP NAP NAP NAP
188 NAP NAP NAP NAP NAP
190 NAP NAP NAP NAP NAP
191 NAP NAP NAP NAP NAP
A-7
YIELD YIELD
MAINTEN- MAINTEN-
DEFEASE- DEFEASE ANCE ANCE PREPAYMENT
CONTROL ANCE -ANCE END PERIOD PERIOD END PENALTY
NUMBER LOAN / PROPERTY NAME START DATE DATE START DATE DATE START DATE
192 Park 2000 - Building H 01/01/04 03/31/11 NAP NAP NAP
194 Xxxxxxx Mini Storage 01/01/04 01/31/11 NAP NAP NAP
000 000-000 Professional 01/01/04 07/31/10 NAP NAP NAP
Center Drive
197 9, 9A & 0 Xxxxxx Xxxxxx 01/01/04 05/31/11 NAP NAP NAP
000 Xxxxxxx Xxxxxx Plaza 01/01/04 02/28/11 NAP NAP NAP
000 Xxxxx Xxxxx Xxxx Shopping NAP NAP 05/01/06 01/31/11 NAP
Center
207 Holiday Inn Stillwater 01/01/04 02/28/11 NAP NAP NAP
000 000-000 North XxXxxx 01/01/04 03/31/11 NAP NAP NAP
Boulevard
210 Holiday Inn Ponca City 01/01/04 02/28/11 NAP NAP NAP
212 Eaglepointe Office Building NAP NAP 10/01/06 06/30/11 NAP
213 Plaza on Xxxx 01/01/04 03/31/11 NAP NAP NAP
000 Xxxxxxxx Xxxxxxx Manor 01/01/04 05/31/11 NAP NAP NAP
Apartments
217 XxXxxxx Medical Office 01/01/04 03/31/11 NAP NAP NAP
Building
000 Xxxxxxxx Xxxx Xxxx and NAP NAP 10/01/06 06/30/11 NAP
39th Drive
223 Storage Inn 01/01/04 03/31/11 NAP NAP NAP
229 Valley View Xxxxx Shopping 01/01/04 12/31/10 NAP NAP NAP
Center and Billboard Xxxx
000 0000 Xxxx Xxxxxx Xxxxxx Xxxx NAP NAP 10/01/06 06/30/11 NAP
YIELD MAINTENANCE
YIELD INTEREST RATE YIELD
PREPAYMENT MAINTENANCE YIELD CONVERTED TO MAINTENANCE
CONTROL PENALTY END CALCULATION MAINTENANCE MONTHLY MORTGAGE INTEREST RATE
NUMBER DATE METHOD INTEREST RATE RATE REFERENCE DATE
192 NAP NAP NAP NAP NAP
194 NAP NAP NAP NAP NAP
196 NAP NAP NAP NAP NAP
197 NAP NAP NAP NAP NAP
200 NAP NAP NAP NAP NAP
202 NAP Type 1 Treasury Flat Yes Maturity
207 NAP NAP NAP NAP NAP
209 NAP NAP NAP NAP NAP
210 NAP NAP NAP NAP NAP
212 NAP Type 1 Treasury Flat Yes Maturity
213 NAP NAP NAP NAP NAP
214 NAP NAP NAP NAP NAP
217 NAP NAP NAP NAP NAP
220 NAP Type 1 Treasury Flat Yes Maturity
223 NAP NAP NAP NAP NAP
229 NAP NAP NAP NAP NAP
237 NAP Type 1 Treasury Flat Yes Maturity
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A INFORMATION FOR THE BIRCH RUN OUTLET CENTER JUNIOR PORTION, WHICH IS
ASSOCIATED WITH THE CLASS BR CERTIFICATES. THE BIRCH RUN OUTLET CENTER JUNIOR
PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
000x Xxxxx Xxx Xxxxxx Xxxxxx 01/01/04 06/30/11 NAP NAP NAP
(Junior Portion)
101b NAP NAP NAP NAP NAP
A-8
EXHIBIT B
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine signature) and
delivery of any and all documents contemplated by this Agreement, including,
without limitation, endorsements of Mortgage Notes, and the performance and
compliance by the Seller with the terms of this Agreement will not: (i) violate
the Seller's organizational documents; or (ii) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Seller is a party or by which it is bound or which is applicable to it
or any of its assets, which default or breach, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(c) The Seller has full power and authority to enter into and fully
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(d) The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans (and, in the event that the
related transaction is deemed to constitute a loan secured by all or part of the
Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under the
conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to: (i) applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights generally; and
(ii) general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms hereof will
not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Seller's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the best
of the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
B-1
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
(i) The transfer of the Mortgage Loans to the Purchaser as contemplated
herein is not subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(j) The Mortgage Loans do not constitute all or substantially all of
the assets of the Seller.
(k) The Seller is not transferring the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud its present or future creditors.
(l) The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
(m) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
(n) The Seller does not intend to, and does not believe that it will,
incur debts or obligations beyond its ability to pay such debts and obligations
as they mature.
(o) The consideration to be received by the Seller in connection with
its transfer of the Mortgage Loans to the Purchaser, as provided herein,
constitutes at least reasonably equivalent value and fair consideration for the
Mortgage Loans.
(p) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
B-2
EXHIBIT C
All exceptions to any representation and warranty should be scheduled
on a schedule or exhibit denominated to match the Section number of the specific
representation and warranty, e.g., Schedule C-12(a). Each such Schedule shall
set forth the specific exception or exceptions to the specific part or parts of
the related representation and warranty and not simply list the loan. The
standard for repurchase is to be any breach that materially and adversely
effects the value of the Mortgage Loan, the Mortgaged Property, the interests of
the Trust/Trustee in such Mortgage Loan or the interests of the
Certificateholders, or any one of them, including any economic interest, in such
Mortgage Loan.
For purposes of these representations and warranties, the phrases "to
the knowledge of the Seller" or "to the Seller's knowledge" shall mean, except
where otherwise expressly set forth below, the actual state of knowledge of the
Seller or any servicer acting on its behalf regarding the matters referred to,
in each case (i) solely in the case of the Seller, after having conducted such
inquiry and due diligence into such matters as would be customarily performed by
prudent institutional commercial or multifamily mortgage lenders, as applicable,
and in all events as required by the Seller's underwriting standards, at the
time of the Seller's origination or acquisition, as applicable, of the
particular Mortgage Loan and (ii) subsequent to such origination, utilizing the
servicing and monitoring practices customarily utilized by prudent commercial
mortgage loan servicers with respect to securitizable commercial or multifamily,
as applicable, mortgage loans, and the phrases "to the actual knowledge of the
Seller" or "to the Seller's actual knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents which are part of or required to
be part of a Mortgage File shall be deemed to be within the knowledge and the
actual knowledge of the Seller. Wherever there is a reference to receipt by, or
possession of, the Seller of any information or documents, or to any action
taken by the Seller or not taken by the Seller or its agents or employees, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking such action by,
either of the Seller or any servicer acting on its behalf.
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE MORTGAGE LOANS
The Seller hereby represents and warrants that, as of the date
hereinbelow specified or, if no such date is specified, as of the Closing Date :
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects as of the respective Due Dates for the Mortgage Loans in
December 2001.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good and marketable title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan to, or at
the direction of, the Purchaser free and clear of any and all pledges, liens,
claims, charges, security interests, participation interests and/or other
interests
C-1
and encumbrances. Subject to the completion of all recording and filing
contemplated hereby and by the Pooling and Servicing Agreement, the Seller will
have validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien, claim,
charge, security interest or other encumbrance, or participation interest or any
other ownership interest, or any other interest of any kind or nature
whatsoever, except for the servicing rights identified on Schedule C-42. The
sale of the Mortgage Loans to the Purchaser or its designee does not require the
Seller to obtain any governmental or regulatory approval or consent that has not
been obtained. Each Mortgage Note is, or shall be as of the Closing Date,
properly endorsed to the Purchaser or its designee and each such endorsement is
genuine.
3. Payment Record. No scheduled payment of principal and interest due
under any Mortgage Loan on the Due Date in December 2001 or on any Due Date in
the twelve-month period immediately preceding the Due Date for such Mortgage
Loan in December 2001 is or was 30 days or more delinquent, without giving
effect to any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan is properly recorded in the applicable
jurisdiction and constitutes a valid and, subject to the exceptions and
limitations set forth in Paragraph 13 below, enforceable first priority lien
upon the related Mortgaged Property, prior to all other liens and encumbrances
and except for (a) the lien for current real estate taxes, water charges, sewer
rents and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record referred to in the related lender's title insurance policy (or, if not
yet issued, referred to in a pro forma title policy or title policy commitment
meeting the requirements described below in Paragraph 8), none of which
materially interferes with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan, (c) any other exceptions and exclusions
specifically referred to in such lender's title insurance policy (or, if not yet
issued, referred to in a pro forma title policy or title policy commitment
meeting the requirements described below in Paragraph 8), none of which
materially interferes with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan, (d) other matters to which like properties are
commonly subject, none of which materially interferes with the security intended
to be provided by such Mortgage, the current principal use of the related
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service the related Mortgage Loan, (e) the rights
of tenants (as tenants only) under leases (including subleases) pertaining to
the related Mortgaged Property which do not materially interfere with the
security intended to be provided by such Mortgage, (f) condominium declarations
of record and identified in the lender's title insurance policy (or, if not yet
issued, identified in a pro forma title policy or title policy commitment
meeting the requirements described in Paragraph 8 below) and (g) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Cross-Collateralized
Group (the foregoing items (a) through (g) being herein referred to as the
"Permitted Encumbrances"). Such Permitted Encumbrances do not, individually or
in the aggregate, materially interfere with the security intended to be provided
by such Mortgage or adversely effect the value or marketability of the
C-2
Mortgaged Property. The related assignment of such Mortgage executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name and address of the assignee and any related recording information which
is not yet available to the Seller) to validly and effectively convey the
assignor's interest therein and constitutes a legal, valid, binding and, subject
to the exceptions and limitations set forth in Paragraph 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Mortgage Loan is secured by an
assignment of leases and rents ("Assignment of Leases"), which is either a
separate instrument or is incorporated into the related Mortgage, and which
establishes and creates a valid, subsisting and, subject to the exceptions and
limitations set forth in Paragraph 13 below, enforceable first priority lien on
and security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name and address
of the assignee and any related recording information which is not yet available
to the Seller) to validly and effectively convey the assignor's interest therein
and constitutes a legal, valid, binding and, subject to the exceptions and
limitations set forth in Paragraph 13 below, enforceable assignment of such
Assignment of Leases from the relevant assignor to the Trustee.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded in any material respect, (b)
neither the related Mortgaged Property nor any material portion thereof has been
released from the lien of such Mortgage and (c) the related Borrower has not
been released from its obligations under such Mortgage, in whole or in material
part. Except as described on Schedule C-6 hereto, no alterations, waivers,
modifications or assumptions of any kind have intentionally been given, made or
consented to by or on behalf of the Seller since November 1, 2001. The Seller
has not taken any affirmative action that would cause the representations and
warranties of the related Borrower under any Mortgage Loan not to be true and
correct in any material respect.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, one or more engineering assessments were performed by an independent
engineering consultant firm and except as set forth in an engineering report
prepared in connection with such assessment, the related Mortgaged Property, to
the Seller's knowledge, was as of origination, and, to Seller's actual
knowledge, is as of the Closing Date, in good repair, free and clear of any
damage that would materially and adversely affect its value as security for such
Mortgage Loan. If an engineering report revealed any material damage or
deficiencies, material deferred maintenance or other similar conditions either
(1) an escrow of funds was required or a letter of credit was obtained in an
amount sufficient to effect the necessary repairs or maintenance or (2) such
repairs and maintenance have been completed. To Seller's knowledge, as of
origination of such Mortgage Loan, there was no proceeding pending, and, to the
Seller's actual knowledge, no such proceeding for the condemnation of all or any
material portion of the Mortgaged
C-3
Property securing any Mortgage Loan has been noticed or commenced. As of the
date of the origination of each Mortgage Loan: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance referred to in Paragraph 8
below.
8. Title Insurance. The lien of each Mortgage securing a Mortgage Loan
is insured by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (except that if such policy
is yet to be issued, such insurance may be evidenced by a "marked up" pro forma
policy or title commitment in either case marked as binding and countersigned by
the title company or its authorized agent, either on its face or by an
acknowledged closing instruction or escrow letter) in the original principal
amount of such Mortgage Loan after all advances of principal, insuring the
originator of the related Mortgage Loan, its successors and assigns (as the sole
insured) that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid, and Seller has
made no claims thereunder and, to Seller's actual knowledge, no prior holder of
the related Mortgage has made any claims thereunder and no claims have been paid
thereunder. Seller has not, and to the Seller's actual knowledge, no prior
holder of the related Mortgage has done, by act or omission, anything that would
materially impair the coverage under such Title Policy. Immediately following
the transfer and assignment of the related Mortgage Loan to the Trustee
(including endorsement and delivery of the related Mortgage Note to the
Purchaser and recording of the related Assignment of Mortgage in favor of
Purchaser in the applicable real estate records), such Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. Such
Title Policy contains no exclusion for, or it affirmatively insures (unless, in
the case of clause (b) below, the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a) access to a
public road, and (b) that the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all requirements
under each Mortgage Loan as to completion of any on-site or off-site improvement
and as to disbursements of any funds escrowed for such purpose, which
requirements were to have been complied with on or before the Closing Date, have
been complied with in all material aspects or any such funds so escrowed have
not been released,
C-4
provided that, partial releases of such funds in accordance with the applicable
Mortgage Loan Documents may have occurred.
10. Mortgage Provisions. The Mortgage Note, Mortgage and Assignment of
Leases for each Mortgage Loan, together with applicable state law, contain
customary and, subject to the exceptions and limitations set forth in Paragraph
13 below, enforceable provisions for commercial or multifamily, as applicable,
mortgage loans such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan and all
such fees and expenses are the obligation of the Borrower under the Mortgage.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-12(TS) (as to which a transaction screen
meeting the requirements of the American Society for Testing and Materials, in
effect at the time the related report was prepared, for transaction screens
("Transaction Screen") was performed), (a) an environmental site assessment
meeting the requirements of the American Society for Testing and Materials in
effect at the time the related report was prepared and covering all
environmental hazards typically assessed for similar properties including use,
type and tenants of the Mortgaged Property ("Environmental Report"), or an
update of such an assessment, was performed by an independent and licensed (to
the extent required by applicable state law) environmental consulting firm with
respect to each Mortgaged Property securing a Mortgage Loan in connection with
the origination of such Mortgage Loan and thereafter updated such that, except
as set forth on Schedule C-12(a), such Environmental Report is dated no earlier
than twelve months prior to the Closing Date, (b) a copy of each such
Environmental Report has been delivered to the Purchaser, and (c) either: (i) no
such Environmental Report provides that as of the date of the report there is a
material violation of any applicable environmental laws with respect to any
circumstances or conditions relating to the related Mortgaged Property; or (ii)
if any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the same have not
been subsequently remediated in all material respects, then, except as described
on Schedule C-12(c), one or more of the following are true -- (A) a party not
related to the related Borrower with financial resources reasonably estimated to
be adequate to cure the subject violation in all material respects was
identified as the responsible party for such condition or circumstance and such
condition or circumstance does not materially impair the value of the Mortgaged
Property, (B) the related Borrower was required to provide additional security
reasonably estimated to be adequate to cure the subject violation in all
material respects and/or to obtain an operations and maintenance plan, (C) the
related Borrower, or other responsible party, provided a "no further action"
letter or other evidence reasonably acceptable to a reasonably prudent
commercial mortgage lender that applicable federal, state or local governmental
authorities had no current intention of taking any action, and
C-5
are not requiring any action, in respect of such condition or circumstance, (D)
such conditions or circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant recommended no
further investigation or remediation, (E) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater than 2% of
the outstanding principal balance of the related Mortgage Loan, (F) there exists
an escrow of funds reasonably estimated to be sufficient for purposes of
effecting such remediation, (G) the related Mortgaged Property is identified on
Schedule C-12(G) and insured under a policy of insurance against losses arising
from such circumstances and conditions or (H) a party with financial resources
reasonably estimated to be adequate to cure the subject violation in all
material respects provided a guaranty or indemnity to the related Borrower to
cover the costs of any required investigation, testing, monitoring or
remediation. To the Seller's actual knowledge, there are no significant or
material circumstances or conditions with respect to any Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage, or other loan
document in the Mortgage File, for each Mortgage Loan encumbering the Mortgaged
Property requires the related Borrower to comply with all applicable federal,
state and local environmental laws and regulations. The Seller has not taken any
action which would cause the Mortgaged Property not to be in compliance with all
federal, state and local laws pertaining to environmental hazards or which could
subject the Seller or its successors and assigns to liability under such laws.
Each Borrower represents and warrants in the related Mortgage Loan documents
generally to the effect that except as set forth in certain specified
environmental reports and to the best of its knowledge, as of the date of
origination of such Mortgage Loan, there were no hazardous materials on the
related Mortgaged Property, except those in full compliance with all applicable
Hazardous Materials Laws and the Borrower 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 (or an affiliate thereof) has agreed to
indemnify, defend and hold the Seller and its successors and assigns harmless
from and against, or otherwise be liable for, any and all losses resulting from
a breach of environmental representations, warranties or covenants given by the
Borrower in connection with such Mortgage Loan, generally including any and all
losses, liabilities, damages, injuries, penalties, fines, expenses and claims of
any kind or nature whatsoever (including without limitation, attorneys' fees and
expenses) paid, incurred or suffered by or asserted against, any such party
resulting from such breach. If the Mortgaged Property is a multifamily
residential property and the environmental consultant, in its judgement in
consideration of the age, history or location of the mortgaged property,
considered lead-based paint, asbestos or radon to be a potential environmental
risk, then either (I) Operations and Maintenance Plans ("O&M Plans"), as
appropriate, were obtained and implemented prior to closing or an amount
sufficient to obtain and implement such O&M Plan(s) was held back at closing,
with the O&M Plan(s) required to be obtained and implemented post-closing, or
(II) an environmental assessment for lead-based paint, asbestos or radon, as
appropriate, was conducted and either (i) no further action was recommended,
(ii) O&M Plans or remediation were recommended and obtained or performed prior
to the loan closing, or (iii) O&M Plans or remediation were recommended and
escrows
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sufficient to obtain such O&M Plans or effect such remediation were held back at
closing with the O&M Plan(s) or remediation required to be obtained or performed
post-closing.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower, or any guarantor of
non-recourse exceptions and environmental liability, with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by: (i) bankruptcy, insolvency, reorganization,
fraudulent transfer and conveyance or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and except that certain provisions in such loan documents may be
further limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations
will not render such loan documents invalid as a whole or substantially
interfere with the mortgagee's realization of the principal benefits and/or
security provided thereby. There is no right of rescission, offset, abatement,
diminution or valid defense or counterclaim available to the related Borrower
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby. Seller has
no actual knowledge of any such rights, defenses or counterclaims having been
asserted.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils included within the classification "All Risk of Physical Loss"
or "Extended Coverage" insurance (or the equivalent) policy in an amount at
least equal to the lesser of (i) the outstanding principal balance of such
Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost, of the improvements located on the related Mortgaged Property,
and if applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Except as identified on
Schedule C-14 hereto, each Mortgaged Property securing a Mortgage Loan is the
subject of a business interruption or rent loss insurance policy providing
coverage for at least twelve (12) months (or a specified dollar amount which is
reasonably estimated to cover no less than twelve (12) months of rental income).
If any portion of the improvements on a Mortgaged Property securing any Mortgage
Loan was, at the time of the origination of such Mortgage Loan, in an area
identified in the Federal Register by the Flood Emergency Management Agency as a
special flood hazard area (Zone A or Zone V) (an "SFH Area") and flood insurance
was available, a flood insurance policy meeting the requirements of the then
current guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the minimum amount required, under the terms of
coverage, to compensate for any damage or loss on a replacement basis of the
improvements in the SFH Area, (2) the outstanding principal balance of such
Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable National Flood Insurance Administration Program. Each Mortgaged
Property and all improvements thereon are also covered by comprehensive general
liability insurance in such
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amounts as are generally required by reasonably prudent commercial lenders for
similar properties. If the Mortgaged Property is located within 25 miles of the
coast of Florida, Texas, Louisiana, Mississippi, Alabama, Georgia, North
Carolina or South Carolina, such Mortgaged Property is covered by windstorm
insurance in such amount as is generally required by reasonably prudent
commercial or multifamily, as applicable, lenders for similar properties or
mitigating factors exist which would be satisfactory to reasonably prudent
commercial or multifamily, as applicable, lenders for similar properties. If the
Mortgaged Property is located in the State of California or in a "seismic zone"
3 or 4, a seismic assessment was conducted at the time of origination or,
alternatively, prior to the Closing Date and seismic insurance in an amount
which would be acceptable to a reasonably prudent commercial lender was obtained
to the extent such Mortgaged Property has a PML of greater than twenty percent
(20%) (based on a 450-year lookback with a 10% probability of exceedance in a
50-year period). Any Mortgaged Property constituting a materially non-conforming
use under applicable zoning laws and ordinances constitutes a legal
non-conforming use which, in the event of casualty or destruction, may be
restored or repaired to materially the same extent of the use or structure at
the time of such casualty or such Mortgaged Property is covered by law and
ordinance insurance in an amount as would be customarily required by a
reasonably prudent commercial or multifamily, as applicable, mortgage lender or
a zoning endorsement, in form, substance and amount as would be customarily
required by a reasonably prudent commercial or multifamily, as applicable,
mortgage lender, insuring against loss to the mortgagee resulting from such
non-conformity was obtained or the insurance proceeds available under the
required casualty insurance plus the value of the land and any remaining
improvements will be sufficient to repay the Mortgage Loan. Additionally, for
any Mortgage Loan having a Cut-off Date Principal Balance equal to or greater
than $20,000,000, the insurer for all of the required coverages set forth herein
has a claims paying ability rating from Standard & Poor's, Xxxxx'x or Fitch of
not less than A-minus (or the equivalent), or from A.M. Best of not less than
"A:V" (or the equivalent). All such insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related Mortgage, its
successors and assigns, as mortgagee, and are not terminable (nor may the amount
of coverage provided thereunder be reduced) without thirty (30) days' prior
written notice to the mortgagee; and no such notice has been received, including
any notice of nonpayment of premiums, that has not been cured and all such
insurance is in full force and effect. With respect to each Mortgage Loan, the
related Mortgage requires that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permits the Mortgagee to require
insurance as described above. Except under circumstances, including certain
minimum thresholds, that would be reasonably acceptable to a prudent commercial
or multifamily, as applicable, mortgage lender or that would not otherwise
materially and adversely affect the security intended to be provided by the
related Mortgage, the Mortgage for each Mortgage Loan provides that proceeds
paid under any such casualty insurance policy will (or, at the lender's option,
will) be applied either to the repair or restoration of the related Mortgaged
Property or to the payment of amounts due under such Mortgage Loan; provided
that the related Mortgage may entitle the related Borrower to any portion of
such proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and provided,
further, that, if the related Borrower holds a leasehold interest in the related
Mortgaged Property, the application of such proceeds will be subject to the
terms of the related Ground Lease (as defined in Paragraph 18 below). To
Seller's actual knowledge, all insurance
C-8
policies described above are with an insurance carrier qualified to write
insurance in the relevant jurisdiction.
15. Taxes and Assessments. As of the origination of the Mortgage Loan
or October 1, 2001, whichever is later, there were no, and as of the Closing
Date, the Seller has no knowledge of, any delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are not otherwise covered by an escrow of funds
sufficient to pay such charge. For purposes of this representation and warranty,
real property taxes and assessments shall not be considered delinquent until the
date on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. No Mortgaged Property is the subject of, and
no Borrower under a Mortgage Loan is a debtor in any state or federal
bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge at the time of the
origination of such Mortgage Loan, based upon a letter from governmental
authorities, a legal opinion, a zoning consultant's report or an endorsement to
the related Title Policy, and to Seller's actual knowledge as of the Closing
Date, except as described on Schedule C-17, the improvements located on or
forming part of, and the existing use of, each Mortgaged Property securing a
Mortgage Loan was or are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan or as otherwise reasonably determined by the Seller in a manner
that would be acceptable to a reasonably prudent commercial or multifamily, as
applicable, mortgage lender).
18. Leasehold Estate Only. If any Mortgage Loan is secured, in whole or
in part, by the interest of a Borrower as a lessee under a ground lease
(together with any and all written amendments and modifications thereof and any
and all estoppels from or other agreements with the ground lessor, a "Ground
Lease"), but not by the related fee interest in such property (the "Fee
Interest"), then, except as otherwise specified on Schedule C-18:
(a) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee, its
successors or assigns in a manner that would materially adversely
affect the security provided by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in
written instruments which are a part of the related Mortgage File;
(b) The related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not
subject to any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than
C-9
Permitted Encumbrances, and such Ground Lease, provides that it shall remain
superior to any mortgage or other lien upon the related Fee Interest;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it has
been obtained); provided that such Ground Lease has not been terminated and all
defaults, if any, on the part of the related lessee have been cured;
(d) Such Ground Lease is in full force and effect and the Seller has
not received any notice that any material default has occurred under such Ground
Lease, and the lessor under such Ground Lease has been sent notice of the lien
evidenced by the Mortgage in accordance with the terms of the Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any default under
such Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term (or an original term plus
options exercisable by the holder of the related Mortgage) which extends not
less than twenty (20) years beyond the end of the amortization term of such
Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving the related
Borrower unless the mortgagee under such Mortgage Loan fails to cure a default
of the lessee under such Ground Lease following notice thereof from the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any casualty insurance proceeds, other than de minimus amounts
for minor casualties, with respect to the leasehold interest will be applied
either: (i) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (ii) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest thereon. Under
the terms of the Ground Lease and the related Mortgage, taken together, any
condemnation proceeds or awards in respect of a total or substantially total
taking will be applied first to
C-10
the payment of the outstanding principal and interest on the Mortgage Loan
(except as otherwise provided by applicable law and subject to any rights to
require the improvements to be rebuilt);
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial or
multifamily, as applicable, mortgage lender in the lending area where the
Mortgaged Property is located at the time of the origination of such Mortgage
Loan;
(k) The lessor under such Ground Lease is not permitted to disturb the
possession, interest or quiet enjoyment of the lessee in the relevant portion of
the Mortgaged Property subject to such Ground Lease for any reason, or in any
manner, which would materially adversely affect the security provided by the
related Mortgage; and
(l) Such Ground Lease may not be materially amended or modified without
the prior consent of the mortgagee under such Mortgage Loan, and any such action
without such consent is not binding on such mortgagee, its successors or
assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a) and the related Mortgaged Property, if acquired by a REMIC
in connection with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section 860G(a)(8).
20. Advancement of Funds. The Seller has not advanced funds or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property or the related Borrower (other than
amounts paid by the tenant as specifically provided under related lease or by a
property manager), for the payment of any amount required by such Mortgage Loan,
except for interest accruing from the date of origination of such Mortgage Loan
or the date of disbursement of the Mortgage Loan proceeds, whichever is later,
to the date which preceded by 30 days the first due date under the related
Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, has a shared appreciation feature,
provides for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property, or, provides for
interest-only payments without principal amortization, other than for the
initial partial month period between the date of the origination of such
Mortgage Loan and the first day of the immediately succeeding month, or for the
negative amortization of interest, except that, in the case of an ARD Loan, such
Mortgage Loan provides that, during the period commencing on or about the
related Anticipated Repayment Date and continuing until such Mortgage Loan is
paid in full, (a) additional interest shall accrue and may be compounded monthly
and shall be payable only after the outstanding principal of such Mortgage Loan
is paid in full, and (b) subject to available funds, a portion of the cash flow
generated by such Mortgaged Property will be applied
C-11
each month to pay down the principal balance thereof in addition to the
principal portion of the related Monthly Payment. Neither Seller nor any
affiliate thereof has any obligation to make any capital contribution to the
Borrower under the Mortgage Loan or otherwise.
22. Legal Proceedings. To Seller's knowledge, as of origination there
were no, and to the Seller's actual knowledge, as of the Closing Date, there are
no pending actions, suits, litigation or other proceedings by or before any
court or governmental authority against or affecting the Borrower (or any
related guarantor to the extent the Seller in accordance with Seller's
underwriting standards would consider such guarantor material to the
underwriting of such Mortgage Loan) under any Mortgage Loan or the related
Mortgaged Property that, if determined adversely to such Borrower or Mortgaged
Property, would materially and adversely affect the value of the Mortgaged
Property as security for such Mortgage Loan, the Borrower's ability to pay
principal, interest or any other amounts due under such Mortgage Loan or the
ability of any such guarantor to meet its obligations.
23. Other Liens. Except as otherwise set forth on Schedule C-23, none
of the Mortgage Loans permits the related Mortgaged Property or any interest
therein or any controlling ownership interest in the Borrower (including, but
not limited to, any controlling interest in the manager or managing member of a
Borrower which is a limited liability company or the general partner of a
Borrower which is a general partnership, limited partnership or limited
liability partnership) to be encumbered by any mortgage lien or other
encumbrance except the related Mortgage or the Mortgage of another Mortgage Loan
without the prior written consent of the holder thereof or the satisfaction of
debt service coverage or similar criteria specified therein. To Seller's
knowledge, as of origination, and, to the Seller's actual knowledge as of the
Closing Date, except for cases involving other Mortgage Loans, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by any mortgage
liens junior to or of equal priority with the liens of the related Mortgage. The
Mortgage requires the Borrower to pay all reasonable costs and expenses related
to any required consent to an encumbrance, including reasonable legal fees and
expenses and any applicable Rating Agency fees.
24. No Mechanics' Liens. To Seller's knowledge, as of the origination
of the Mortgage Loan, and, to the Seller's actual knowledge, as of the Closing
Date: (i) each Mortgaged Property securing a Mortgage Loan (exclusive of any
related personal property) is free and clear of any and all mechanics' and
materialmen's liens that are prior or equal to the lien of the related Mortgage
and that are not bonded or escrowed for or covered by title insurance; and (ii)
no rights are outstanding that under law could give rise to any such lien that
would be prior or equal to the lien of the related Mortgage and that is not
bonded or escrowed for or covered by title insurance.
25. Compliance with Usury Laws. Each Mortgage Loan complied with, or
was exempt from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the extent required by applicable law,
each Mortgage Loan requires the related Borrower to be qualified to do business,
and requires the related Borrower and the related Mortgaged Property to be in
material compliance with all regulations, licenses, permits, authorizations,
restrictive covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be so qualified or in
C-12
compliance would have a material and adverse effect upon the enforceability of
the Mortgage Loan or upon the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby. To the Seller's knowledge, as of the date of origination of
each Mortgage Loan and based on any of: (i) a letter from governmental
authorities, (ii) a legal opinion, (iii) an endorsement to the related Title
Policy, (iv) a zoning report from a zoning consultant, or (v) other due
diligence that the originator of the Mortgage Loan customarily performs in the
origination of comparable mortgage loans, the related Borrower was in possession
of all material licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool.
28. Releases of Mortgaged Properties. Except as set forth on Schedule
C-28, no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property from the lien of the related
Mortgage except upon: (i) payment in full of all amounts due under the related
Mortgage Loan or (ii) delivery of "government securities", as defined Treasury
regulation section 1.860G-2(a)(8)(i), in connection with a defeasance of the
related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of material portions of the related Mortgaged Property or the release
of one or more related Mortgaged Properties upon: (i) the satisfaction of
certain legal and underwriting requirements which would be acceptable to a
reasonably prudent commercial or multifamily, as applicable, mortgage lender, or
(ii) the payment of a release price equal to at least 125% of the loan amount
allocated to such Mortgaged Property or the appraised value of such Mortgaged
Property at the time of the release and prepayment consideration in connection
therewith.
29. Defeasance. With respect to any Mortgage Loan that contains a
provision for any defeasance of mortgage collateral (a "Defeasance Loan"), the
related Mortgage Note, Mortgage or other related loan document contained in the
Mortgage File, provides that the defeasance option is not exercisable prior to a
date that is at least two (2) years following the Closing Date and is otherwise
in compliance with applicable statutes, rules and regulations governing REMICs;
requires prior written notice to the holder of the Mortgage Loan of the exercise
of the defeasance option and payment by Borrower of all related reasonable fees,
costs and expenses as set forth below; requires, or permits the lender to
require, the Mortgage Loan (or the portion thereof being defeased) to be assumed
by a single-purpose entity; and requires delivery of a legal opinion that the
Trustee has a perfected security interest in such collateral prior to any other
claim or interest. In addition, each Mortgage loan that is a Defeasance Loan
permits defeasance only with substitute collateral constituting non-callable
"government securities" within the meaning of Treasury regulation section
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments under
the Mortgage Note (or the portion thereof being defeased) when due, and in the
case of ARD Loans, assuming the Anticipated Repayment Date is the Maturity Date.
To Seller's actual knowledge, defeasance under the Mortgage Loan is only for the
purpose of facilitating the disposition of a Mortgaged Property and not as part
of an arrangement to collateralize a REMIC offering with obligations that are
not real estate
C-13
mortgages. With respect to each Defeasance Loan, the related Mortgage or other
related loan document provides that the related Borrower shall (a) pay all
Rating Agency fees associated with defeasance (if Rating Agency approval is a
specific condition precedent thereto) and all other reasonable expenses
associated with defeasance, including, but not limited to, accountant's fees and
opinions of counsel, or (b) provide all opinions required under the related loan
documents, including, if applicable, a REMIC opinion and a perfection opinion
and any applicable rating agency letters confirming no downgrade or
qualification of ratings on any classes in the transaction. Additionally, for
any Mortgage Loan having a Cut-off Date Principal Balance equal to or greater
than $20,000,000, the Mortgage Loan or the related documents require
confirmation from the Rating Agency that exercise of the defeasance option will
not cause a downgrade or withdrawal of the rating assigned to any securities
backed by the Mortgage Loan and require the Borrower to pay any Rating Agency
fees and expenses.
30. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
31. Inspection. The Seller, or an affiliate, inspected, or caused the
inspection of, the related Mortgaged Property within twelve (12) months of the
Closing Date.
32. No Material Default. There exists no material default, breach,
violation or event of acceleration under the Mortgage Note, Mortgage or other
related loan documents for any Mortgage Loan and, to Seller's actual knowledge,
no event or circumstance which, with the passage of time or notice and
expiration of any grace period or cure period, would constitute a material
default, breach, violation or event of acceleration under such Mortgage Note,
Mortgage or other related loan documents; provided, however, that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that pertains to or arises directly out of the subject
matter of or is covered by any other representation and warranty made by the
Seller in this Exhibit C. No foreclosure or other enforcement action has been
taken by the Seller or, to the Seller's knowledge, by any prior holder of such
Mortgage Loan, against the Borrower or the Mortgaged Property with respect to
the subject Mortgage Loan.
33. Due-on-Sale. The Mortgage contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without the prior written consent of the holder of the
Mortgage, either the related Mortgage Property, or any controlling interest in
the related Borrower (including, but not limited to, any controlling interest in
the manager or managing member of a Borrower which is a limited liability
company or the general partner of a Borrower which is a general partnership,
limited partnership or limited liability partnership) is pledged, transferred or
sold, other than by reason of family and estate planning transfers (or by
devise, descent or operation of law upon the death of a member, partner or
shareholder of the related Borrower), transfers of less than a controlling
interest in the Borrower, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the Borrower,
transfers among affiliated Borrowers with respect to cross-collateralized
Mortgaged Loans or multi-property Mortgage Loans or transfers of a similar
nature to the foregoing meeting the requirements of the Mortgage Loan. The
Mortgage requires the Borrower to pay all reasonable fees and expenses
associated with securing the consent or
C-14
approval of the holder of the Mortgage for all actions requiring such consent or
approval under the Mortgage including the cost of any required counsel opinions
relating to REMIC or other securitization and tax issues and any applicable
Rating Agency fees.
34. Single Purpose Entity. Each Mortgage Loan with an original
principal balance over $5,000,000 requires the Borrower to be for at least for
so long as the Mortgage Loan is outstanding, and to Seller's actual knowledge
each Borrower is, a Single-Purpose Entity. For this purpose, "Single-Purpose
Entity" means a person, other than an individual, which is formed or organized
solely for the purpose of owning and operating the related Mortgaged Property or
Properties; does not engage in any business unrelated to such Mortgaged Property
or Properties and the financing thereof; and whose organizational documents
provide, or which entity represented and covenanted in the related Mortgage Loan
documents, substantially to the effect that such Borrower (i) does not and will
not have any material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (ii) does not and
will not have any indebtedness other than as permitted by the related Mortgage
or other related Mortgage Loan Documents; (iii) maintains its own books, records
and accounts, in each case which are separate and apart from the books, records
and accounts of any other person; and (iv) holds itself out as being a legal
entity, separate and apart from any other person. In addition with respect to
all Mortgage Loans with an original principal balance of $15,000,000 or more,
the Borrower's organizational documents provide substantially to the effect that
the Borrower shall: conduct business in its own name; not guarantee or assume
the debts or obligations of any other person; not commingle its assets or funds
with those of any other person; prepare separate tax returns and financial
statements, or if part of a consolidated group, be shown as a separate member of
such group; transact business with affiliates on an arm's length basis pursuant
to written agreements; hold itself out as being a legal entity, separate and
apart from any other person and such organizational documents provide that: any
dissolution and winding up or insolvency filing for such entity is prohibited or
requires the unanimous consent of an independent director or member or all
partners or members, as applicable; such documents may not be amended with
respect to the Single-Purpose Entity requirements without the approval of the
mortgagee or rating agencies; the Borrower shall have an outside independent
director or member. There was obtained for each such Mortgage Loan having an
original principal balance of $20,000,000 a counsel's opinion regarding
non-consolidation of the Borrower in any insolvency proceeding involving any
other party. To Seller's actual knowledge, each Borrower has complied in all
material respects with the requirements of the related Mortgage Loan and
Mortgage and the Borrower's organizational documents regarding
Single-Purpose-Entity status. The organization documents of any Borrower on a
Mortgage Loan having an original principal balance of $15,000,000 or more which
is a single member limited liability company provide that the Borrower shall not
dissolve or liquidate upon the bankruptcy, dissolution, liquidation or death of
the sole member. Any such single member limited liability company Borrower is
organized in jurisdictions that provide for such continued existence and there
was obtained an opinion of such Borrower's counsel confirming such continued
existence and that the applicable law provides that creditors of the single
member may only attach the assets of the member including the membership
interests in the Borrower but not the assets of the Borrower.
35. Whole Loan. Each Mortgage loan is a whole loan and not a
participation interest in a mortgage loan.
C-15
36. Tax Parcels. Each Mortgaged Property either (i) constitutes one or
more complete separate tax lots containing no other property or (ii) is subject
to an endorsement under the related lender title policy insuring same or (iii)
an application for the creation of separate tax lots complying in all respects
with the applicable laws and requirements of the applicable governing authority
has been made and approved by the applicable governing authority and such
separate tax lots shall be effective for the next tax year.
37. ARD Loans. Each Mortgage Loan which is an ARD Loan commenced
amortizing on its initial scheduled Due Date, and provides that: (i) its
Mortgage Rate will increase by at least two (2) percentage points in connection
with the passage of its Anticipated Repayment Date; (ii) its Anticipated
Repayment Date is not less than seven (7) years following the origination of
such Mortgage Loan; (iii) no later than the related Anticipated Repayment Date,
the related Borrower is required (if it has not previously done so) to enter
into a "lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled by the
Master Servicer; and (iv) any net cash flow from the related Mortgaged Property
that is applied to amortize such Mortgage Loan following its Anticipated
Repayment Date shall, to the extent such net cash flow is in excess of the
scheduled principal and interest payment payable therefrom, be net of budgeted
and discretionary (servicer approved) capital expenditures.
38. Security Interests. The security agreements, financing statements
or other instruments, if any, related to the Mortgage Loan establish and create,
and a UCC financing statement has been filed and/or recorded in all places
required by applicable law for the perfection of (to the extent that the filing
of such a UCC financing statement can perfect such a security interest), a valid
security interest in the personal property granted under such Mortgage (and any
related security agreement), which in all cases includes elevators) and all
Borrower owned furniture, fixtures and equipment material to the Borrower's
operation of the Mortgaged Property and, if such Mortgaged Property is a hotel,
restaurant, healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre, mobile home park or fitness center operated by
the related Borrower, such personal property, with the exception of certain
leased personal property for which there is an assignment of the Borrower's
interest, constitutes all the material personal property required to operate the
Borrower's business and any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the related Mortgage Loan
establishes and creates a valid and enforceable lien and first priority security
interest in such material personal property described therein (subject to the
exceptions and limitations set forth in Paragraph 13 above), except for certain
personal property subject to purchase money security interests or personal
property leases and security interests to secure revolving lines of credit, all
of which are in compliance with or allowable under the related Mortgage Loan
documents and are disclosed in the Mortgage Loan File or the Borrower's
financial statements or operating statements. In the case of each Mortgage Loan
secured by a hotel, the related loan documents contain such provisions as are
necessary and UCC Financing Statements have been filed as necessary, in each
case, to perfect a valid first priority security interest in the related
revenues with respect to such Mortgaged Property. An assignment of each UCC
financing statement relating to the Mortgage Loan has been executed by Seller in
blank which the Purchaser or Trustee, as applicable, or designee is authorized
to complete and to file in the filing office in which such financing statement
was filed. Each Mortgage Loan and the related Mortgage (along with any security
agreement and UCC financing statement), together
C-16
with applicable state law, contain customary and enforceable provisions such as
to render the rights and remedies of the holders thereof adequate for the
practical realization against the personal property described above, and the
principal benefits of the security intended to be provided thereby.
39. Environmental Insurance. If the Mortgaged Property securing any
Mortgage Loan is covered by a secured creditor policy, then:
(a) the Seller --
(i) has disclosed, or is aware that there has been disclosed,
in the application for such policy or otherwise to the insurer
under such policy the "pollution conditions" (as defined in
such policy) identified in any environmental reports related
to such Mortgaged Property which are in the Seller's
possession or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered to the insurer
under such policy copies of all environmental reports in the
Seller's possession related to such Mortgaged Property,
in each case with respect to (i) and (ii) to the extent required by
such policy or to the extent the failure to make any such disclosure or
deliver any such report would materially and adversely affect the
Purchaser's ability to recover under such policy;
(b) all premiums for such insurance have been paid;
(c) such insurance is in full force and effect; and
(d) such insurance policy has a term of not less than three (3)
years beyond the maturity date of the Mortgage Loan.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury regulation section 1.860G-1(b)(2).
41. Operating Statements. Each Mortgage requires the Borrower upon
request to provide the owner or holder of the Mortgage with quarterly (except
for Mortgage Loans with an original principal balance less than $3,000,000) and
annual operating statements (or a balance sheet statement of income and expenses
and a statement of changes in financial position), rent rolls (if there is more
than one tenant) and related information and annual financial statements, which
annual financial statements for all Mortgage Loans with an original principal
balance greater than $20 million shall be audited by an independent certified
public accountant upon the request of the holder of the Mortgage Loan.
42. Servicing Rights. Except as set forth on Schedule C-42 hereto and
except as to the Master and Special Servicer, no Person has been granted or
conveyed the right to service any Mortgage Loan or receive any consideration in
connection therewith.
C-17
43. Recourse. Each Mortgage Loan is non-recourse, except that the
Borrower and in the case of a Mortgage Loan with an initial principal balance of
$3,000,000 or more, either: a principal of the Borrower who is a natural person
or other individual guarantor who is a natural person, with assets other than
any interest in the Borrower has agreed to be jointly and severally liable for
all liabilities, expenses, losses, damages, expenses or claims suffered or
incurred by the holder of the Mortgage Loan by reason of or in connection with:
(i) any fraud or material misrepresentation by the Borrower, (ii) misapplication
or misappropriation of rents, insurance payments, condemnation awards, tenant
security deposits or other funds subject to the Mortgage, (iii) acts of
material, physical waste (or, alternatively, the failure to repair or restore
the related Mortgaged Property in accordance with any related Mortgage Loan
document, to the extent not covered by insurance proceeds paid on account of
damage which is the subject of any such repair or restoration which are made
available for such purpose to the Borrower or the holder of the Mortgage Loan),
(iv) violation of applicable environmental laws or breaches of environmental
covenants or (v) the related Mortgaged Property becoming an asset in a voluntary
bankruptcy or insolvency proceeding instituted by the Borrower, that impairs the
ability of the holder of the related Mortgage Loan to enforce its lien on the
related Mortgaged Property. With respect to clause (iv) in this paragraph,
environmental insurance meeting the requirements set forth in Paragraph 39 shall
satisfy such requirement. With respect to clause(v) in this paragraph, such
requirement will be satisfied if the related Mortgage Loan documents provide
that the non-recourse provisions of the Mortgage Loan documents shall not be
applicable to Borrower (and a principal of Borrower who is a natural person or
other individual guarantor who is a natural person shall guaranty the Borrower's
recourse obligations arising from such non-applicability) either (a) in the
event of a voluntary bankruptcy filing by the Borrower or (b) to the extent the
Mortgage Loan holder's rights of recourse to the Mortgaged Property are impaired
by or as a result of any legal proceeding (including a voluntary bankruptcy or
insolvency proceeding) instituted by the Borrower. No waiver of liability for
such non-recourse exceptions has been granted to the Borrower or any such
guarantor or principal by the Seller or anyone acting on behalf of the Seller.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that has not been assigned to the Purchaser.
45. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
46. Servicing. The servicing and collection practices used with respect
to each Mortgage Loan in all material respects have met customary standards
utilized by prudent commercial or multifamily, as applicable, mortgage loan
servicers with respect to whole loans.
47. Originator's Authorization To Do Business. To the extent required
under applicable law to assure the enforceability of a Mortgage Loan, as of such
Mortgage Loan's funding date and at all times when it held such Mortgage Loan,
the originator of such Mortgage Loan was authorized to do business in the
jurisdiction in which the related Mortgaged Property is located.
C-18
48. No Fraud In Origination. In the origination of the Mortgage Loan,
none of the Seller, the originator or any employee or agent of the Seller or the
originator, participated in any fraud or intentional material misrepresentation
with respect to the Borrower, the Mortgaged Property or any guarantor. To
Seller's actual knowledge, no Borrower or guarantor is guilty of defrauding or
making an intentional material misrepresentation to the Seller or originator
with respect to the origination of the Mortgage Loan, the Borrower or the
Mortgaged Property.
49. Appraisal. An appraisal of the Mortgaged Property for each Mortgage
Loan was conducted in connection with the origination of such Mortgage Loan,
which appraisal is signed by an appraiser, who, to Seller's actual knowledge,
had no interest, direct or indirect, in the related Borrower, such Mortgaged
Property or in any loan made on the security of the Mortgaged Property, and
whose compensation is not affected by the approval or disapproval of such
Mortgage Loan; to the Seller's actual knowledge, the appraisal and appraiser
both satisfy the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation, all as in effect on the date the Mortgage Loan was originated.
50. Access and Parking. The following statements are true with respect
to each Mortgaged Property: (i) the Mortgaged Property is located on or adjacent
to a public road, or has access to an irrevocable easement permitting ingress
and egress and (ii) except for de minimus violations or legal non-conforming
parking, to the Seller's knowledge, as of the time of origination of such
Mortgage Loan, based upon a letter from governmental authorities, a legal
opinion, an independent zoning consultant's report or an endorsement to the
related title insurance policy insuring the holder of the Mortgage against
losses related to the lack of such parking, and to Seller's actual knowledge as
of the Closing Date, the Mortgaged Property has parking to the extent, if any,
required under applicable law, including local ordinances.
51. Jurisdiction of Organization. Each Borrower under a Mortgage Loan
was at the time of origination of thereof either a natural person or was an
entity organized under the laws of the United States or the laws of a
jurisdiction located within the United States, its territories and possessions.
52. Borrower Concentration. No single Borrower or group of affiliated
Borrowers is/are the obligor(s) under any one or more Mortgage Loans with a
Cut-off Date Principal Balance equal to or greater than five percent (5%) of the
Initial Pool Balance.
53. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are conveyed hereunder to the Purchaser.
-----------------
Each representation and warranty of the Seller set forth in this
Exhibit C, to the extent related to the enforceability of any instrument,
agreement or other document or as to
C-19
offsets, defenses, counterclaims or rights of rescission related to such
enforceability, is qualified to the extent that (a) enforcement may be limited
(i) by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally as from time to time in
effect, (ii) by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and (iii) by any
applicable anti-deficiency law or statute; and (b) such instrument, agreement or
other document may contain certain provisions which may be unenforceable in
accordance with their terms, in whole or in part, but the unenforceability of
such provisions will not (subject to the qualification in clause (a) above) (i)
cause the related Mortgage Note or the related Mortgage to be void in their
entirety, (ii) invalidate the related Borrower's obligation to pay interest at
the stated interest rate of such Mortgage Note on, and repay the principal of,
the related Mortgage Loan in accordance with the payment terms of such Mortgage
Note, such Mortgage and other written agreements delivered to the Seller in
connection therewith, (iii) invalidate the obligation of any related guarantor
to pay guaranteed obligations with respect to interest at the stated interest
rate of such Note on, and the principal of, such Mortgage Loan in accordance
with the payment terms of such guarantor's written guaranty, (iv) impair the
mortgagee's right to accelerate and demand payment of interest at the stated
interest rate of such Mortgage Note on, and principal of, such Mortgage Loan
upon the occurrence of a legally enforceable default, or (v) impair the
mortgagee's right to realize against the related Mortgaged Property by judicial
or, if applicable, non-judicial foreclosure.
X-00
XXXXXXXX X-0
000-000 XXXXXX XXXXXX (00-0000000): The Borrower was temporarily a
Restated Revocable Trust whose tenants in common were Xxxxx Xxxxxxxx, Xxxxxx
Xxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxx and 000 Xxxxxx Xxxxxx, LLC. The Lender agreed
to close the loan with the tenants in common structure in order to protect and
preserve the Trust's preferred 1031 tax exchange status on the condition that
the subject property will be transferred to a single asset Limited Liability
Company by May 1, 2001, approximately six months after loan closing. The new
ownership as of 4/16/01 became 000 Xxxxxx Xxxxxx LLC and is managed by Xx. Xxxxx
Xxxxxxxx.
VALLEY VIEW XXXXX SHOPPING CENTER (400022): The original loan was
modified on December 13, 2001 and paid down to $1,000,000. The interest rate and
maturity date remained the same; however, the payment was re-amortized
($1,000,000 at 7.81% with 293 months of amortization). The modified amortization
was based on the original amortization schedule of 300 months less 7 months and
the new payment became effective 1/1/02. The original purpose of the loan, which
closed March 13, 2001, was to refinance the existing debt of $674,640. The
original subject loan amount was $1,250,000 (120 month maturity - April 1, 2011,
300 month amortization and 7.81% interest rate). The original loan included an
unanchored retail building (which remains as the subject collateral) and an
office/warehouse building (which was released from the subject collateral). A
subject neighbor acquired the office/warehouse building from the Borrower for
$650,000. The original subject site contained 1.89 acres and was subdivided into
two separate parcels. The collateral of the subject loan now consists of the
14,424 s.f. retail building and +/- 1.428 acres of land.
BIRCH RUN OUTLET CENTER (00-0000000): The original Co-Lender Agreement
was modified on December 19, 2001. The definition of "Appraisal Reduction Event"
was modified to increase the threshold amount from 35% to 50%.
C-6-1
SCHEDULE C-12(a)
Environmental Reports older than 12 months (date of report):
------------------------------------------------------------------------------------------------------------------
Aliso Xxxxx Xxxx Xxxxxx-Xxxxxxxx # 0 (00-0000000) 9/28/00
000-000 Xxxxxx Xxxxxx (00-0000000) 8/31/00
Cochrane Plaza (00-0000000) 11/28/00
150-170 Professional Center Drive (00-0000000) 3/20/00
Evanston Northwestern Ground Lease (00-0000000) 8/3/00
0000 Xxxxxxxxx Xxxxxxxxx Office Building (11777) 8/28/00
Valley View Xxxxx Shopping Center (400022) 12/5/00
C-12(a)-1
SCHEDULE C-12(g)
Loans with Environmental Insurance policies (amounts and dates of policies):
------------------------------------------------------------------------------------------------------------------------------
Via Verde Plaza (00-0000000) $5,000,000 7/31/01-7/31/16
Holiday Inn Stillwater (12044) $2,500,000 5/17/01-5/17/16
Holiday Inn Ponca City (12045) $2,250,000 5/17/01-5/17/16
C-12(g)-1
SCHEDULE C-14
Self-Insured Tenants (Rating)
------------------------------------------------------------------------
Hannaford Ground Lease (00-0000000) BBB-(*)
-------------
*Tenant self-insures, parent has BBB- credit rating
No Windstorm Insurance <25 Miles From Coast
------------------------------------------------------------------------
Shadow Lakes Apartments (00-0000000)
C-14-1
SCHEDULE C-18(g)
Ground Lease Maturity Dates
---------------------------------------------------------------------------------------------------------------
Holiday Inn Ashville Airport (00-0000000) Leasehold 8/31/2044
0000 Xxxxxx Xxxxxxxxx XX (00-0000000) Fee/Leasehold 7/1/2023(*)
-----------------------
*Borrowers are contracted to purchase respective properties for $1 at ground
lease maturity date
C-18(g)-1
SCHEDULE C-21
IO Loans and IO periods in months
----------------------------------------------------------------
Imperial Apartments (00-0000000) 00
Xxxxxxxx Xxxxxxxxxxxx Ground Lease (00-0000000) 120
C-21-1
SCHEDULE C-22
MILLENNIUM II OFFICE BUILDING (11663): The Borrower is party to a
lawsuit brought by the general contractor for the Property (Suffolk Construction
Company v. Millennium Two, L.L.C. v. Thermal Concepts, Inc., Case #
CLOO-9181AG.) The contractor is seeking payment of its contract balance,
retainage, pending change orders, general conditions resulting from delays, and
punchlist items. The Borrower claims that the contractor was responsible for
delays in gaining occupancy of the building as well as correcting certain
construction deficiencies and punchlist items. The parties are in the discovery
phase of the litigation. A reserve of $733,000 was set aside at closing to cover
the potential liability.
C-22-1
SCHEDULE C-23
Loans with Current Secondary or Mezzanine Debt
--------------------------------------------------------------------------------------------------------------------------
Birch Run Outlet Center (00-0000000) $10,000,000 B-note
Willow Grove Office Mews (00-0000000) $940,000 mezzanine debt
Cherry Hill Office Mews (00-0000000) $900,000 mezzanine debt
X-00-0
XXXXXXXX X-00
XXXXXXXXX XXXXXXXX (00-0000000): The secured property currently
consists of a 7.426-acre parcel. The Borrower has the right to request that
approximately 1.6 unimproved acres be released from the collateral. The proposed
release acreage is located in the southernmost of the site along Circumferential
Road, and will have no impact on the existing usage. The remaining collateral
parcel, containing approximately 5.826 acres, will conform to all zoning
regulations. The appraiser indicated that the subdivision of this site would not
have a negative impact on the appraised value of the property, as no value was
attributed to the excess land in the initial appraisal. The approval of the
release is subject to Lender's consent, in its sole discretion, and will require
evidence that the release will have no negative impact on the initial appraised
value or zoning compliance of the remaining collateral.
IMPERIAL APARTMENTS (00-0000000): The secured property currently
consists of a total of 68.06 acres - Imperial Gardens & Imperial Ridge contain
60.16 acres and Imperial Park contains 7.9 acres. The Borrower has the right to
request that 2.01 unimproved acres at Imperial Gardens & Imperial Ridge be
released from the collateral. The proposed release acreage is located in the
southeast portion of the site, and will have no impact on the existing usage.
The remaining collateral parcel, containing approximately 66.05 acres, will
conform to all zoning regulations. The appraiser indicated that the subdivision
of this site would not have a negative impact on the appraised value of the
property, as no value was attributed to the excess land in the initial
appraisal. The approval of the release is subject to Lender's consent, at its
sole discretion, and will require evidence that the release will have no
negative impact on the initial appraised value or zoning compliance of the
remaining collateral.
C-28-1
SCHEDULE C-37
ARD Loans (ARD Date)
------------------------------------------------------------------------------------------
331-335 Xxxxxx Xxxxxx & 000-000 Xxxxx Xxxxxx (00-0000000) 06/01/11
Imperial Apartments (00-0000000) 12/01/11
IMPERIAL APARTMENTS (00-0000000): The rate increases by 100 bps during
the first 24 months and then increases to 200 bps thereafter. Only 75% of the
cashflow is applied to the principal paydown during the first 24 months and then
increases to 100% thereafter.
000-000 XXXXXX XXXXXX & 000-000 XXXXX XXXXXX (00-0000000): The rate
increases by 100 bps from the maturity date until 5/1/13 and then increases to
200 bps thereafter. 100% of the cashflow is applied to the principal paydown
during entire ARD period.
C-37-1
SCHEDULE C-42
In-place servicing rights
Fully-Retained Primary Servicing Rights
-----------------------------------------------------------------------------------------------------------------------
Millennium II Office Building (11663) Continental Xxxxxxx
5900 Xxxxxxxxx (11777) Continental Xxxxxxx
Holiday Inn Stillwater (12044) Continental Xxxxxxx
Holiday Inn Ponca City (12045) Continental Xxxxxxx
Hometown Square (12104) Continental Xxxxxxx
Medical Center West (12172) Continental Xxxxxxx
0000 Xxxxx 00xx Xxxxxx (12261) Continental Xxxxxxx
Raymour & Xxxxxxxx Plaza (12342) Continental Xxxxxxx
Palomar Commerce Center (12424) Continental Xxxxxxx
Metro Park Office Building (12510) Continental Xxxxxxx
Xxxxxxx Square (12525) Continental Xxxxxxx
Durango Mini Storage & Charleston West Mini Storage (12598) Continental Xxxxxxx
Xxxx Station Shopping Center (12624) Continental Xxxxxxx
Partially-Retained Primary Servicing Rights
-----------------------------------------------------------------------------------------------------------------------
Hannaford Ground Lease (00-0000000) Laureate Capital
Albemarle Crossing (00-0000000) Laureate Capital
Holiday Inn Asheville Airport (00-0000000) Laureate Capital
Newport Avenue Plaza (00-0000000) Xxxxxxxx & Grew
Princeton Belvidere (00-0000000) Xxxxxxxx & Grew
0 Xxxxxx Xxx (00-0000000) Xxxxxxxx & Grew
C-42-1
SCHEDULE C-43
Non-Warm Body Recourse for "Bad Acts" (Explanation)
----------------------------------------------------------------------------------------------------------------------------
0000 Xxxxxx Xxxxxxxxx XX (00-0000000) No, however deep pocket
000-000 Xxxxxx Xxxxxx & 000-000 Xxxxx Xxxxxx (00-0000000) No(*)
Phoenix Airport Marriott (00-0000000) No, however deep pocket
Lakeshore Marketplace (00-0000000) No - Publicly Traded REIT
Super Kmart - Shakopee (00-0000000) No, however deep pocket
Birch Run Outlet Center (00-0000000) No - Publicly Traded REIT
Willow Grove Office Mews (00-0000000) No - Publicly Traded REIT
Cherry Hill Office Mews (00-0000000) No - Publicly Traded REIT
-------------
*331-335 XXXXXX XXXXXX & 000-000 XXXXX XXXXXX (00-0000000): The entire
property is ground-leased for a minimum term of twenty years to Whole Foods
Market Group, Inc. for a Bread & Circus market. There is a guarantee from the
BB+ rated parent, Whole Foods Market, Inc. The lease is triple net, with the
tenant responsible for all operating expenses.
Non-Warm Body Environmental Recourse
-------------------------------------------------
Aliso Viejo Town Center-Building # 7 (00-0000000)
000-000 Xxxxxx Xxxxxx (00-0000000)
150-170 Professional Center Drive (00-0000000)
Imperial Apartments (00-0000000)
Holiday Inn Stillwater (12044)
Holiday Inn Ponca (12045)
ALISO VIEJO TOWN CENTER-BUILDING # 7 (00-0000000): Although we DO NOT
have a "warm body" on the environmental carveouts, we DO have one on all of the
remaining carveouts. The environmental report was clean and recommended no
further action.
000-000 XXXXXX XXXXXX (00-0000000): Although we DO NOT have a "warm
body" on the environmental carveouts, we DO have one on all of the remaining
carveouts. The environmental report was clean and recommended no further action.
The Phase I Engineer found a clean site, excepting one 2.5 cubic foot area of
damaged, asbestos-containing insulation enveloping the duct work. The Engineer
recommended repair or removal of the damaged ACMs by a licensed professional,
the cost of which was estimated to run between $500 and $1,000. The Lender
required that the recommended work be completed, along with all the immediate
repairs outlined in the subject property condition report, and collected an
amount equal to $1,250, or $1,000 grown by 125% at closing. This work has since
been completed and the monies released to the Borrower on 4/27/01.
150-170 PROFESSIONAL CENTER DRIVE (00-0000000): Although we DO NOT have
a "warm body" on the environmental carveouts, we DO have one on all of the
remaining carveouts. The environmental report was clean and recommended no
further action.
IMPERIAL APARTMENTS (00-0000000): Liability for the recourse provisions
relating to environmental matters caused by others shall be limited solely to
the Borrower and
C-43-1
the Corporate Managing Member of the Borrower. If the property becomes
environmentally contaminated during the term of the loan, by any cause
whatsoever, Borrower and Corporate Managing Member agree, at their expense, to
deliver to Lender environmental insurance acceptable to Lender. Xxxxxxx Xxxxxxx
provided a personal guarantee as to any environmental contamination at the
property due to any actions by himself, the Borrower or their affiliates.
HOLIDAY INN STILLWATER (12044): In lieu of signing the environmental
indemnity guarantee carve-outs, the Borrower purchased environmental insurance
covering the Lender.
HOLIDAY INN PONCA (12045): In lieu of signing the environmental
indemnity guarantee carve-outs, the Borrower purchased environmental insurance
covering the Lender.
C-43-2
SCHEDULE C-50
BIRCH RUN OUTLET CENTER (00-0000000): Note A balance of $52,891,504
consists of a $40,000,000 Senior Interest and a $12,891,504 Junior Interest.
C-50-1
EXHIBIT D-1
FORM OF CERTIFICATE OF A SECRETARY
OR ASSISTANT SECRETARY OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-C2
CERTIFICATE OF SECRETARY OF GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
I, ______________________, hereby certify that I am a duly elected and
acting Assistant Secretary of Greenwich Capital Financial Products, Inc. (the
"Company"), and certify further as follows:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware;
2. Attached hereto as Exhibit A is a true, correct and complete copy of
the organizational documents of the Company, as in full force and effect on the
date hereof;
3. Attached hereto as Exhibit B is a certificate of the Secretary of
State of the State of Delaware issued within ten days of the date hereof with
respect to the good standing of the Company;
4. Since the date of the good standing certificate referred to in
clause 3 above, the Company has not received any notification from the Secretary
of State of the State of Delaware, or from any other source, that the Company is
not in good standing in Delaware.
5. Attached hereto as Exhibit C are the resolutions of the board of
directors of the Company authorizing the transactions contemplated by the
Mortgage Loan Purchase Agreement dated as of December 18, 2001 (the "Mortgage
Loan Purchase Agreement"), between Salomon Brothers Mortgage Securities VII,
Inc. ("SBMS VII") and the Company, including the sale of the subject mortgage
loans (the "Mortgage Loans") by the Company to SBMS VII. Such resolutions are in
full force and effect on the date hereof and are not in conflict with any other
resolutions of the board of directors of the Company in effect on the date
hereof.
6. The Mortgage Loans do not constitute all or substantially all of the
assets of the Company.
7. To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Company are pending or contemplated.
8. Each person who, as an officer or representative of the Company,
signed (a) the Mortgage Loan Purchase Agreement, (b) the Indemnification
Agreement dated as of December __, 2001 (the "Indemnification Agreement"), among
the Company, SBMS VII, Xxxxxxx Xxxxx Xxxxxx Inc., Greenwich Capital Markets,
Inc., Credit Suisse First Boston Corporation, X.X. Xxxxxx Securities and First
Union Securities, Inc., (c) any other document or certificate delivered on or
before the date hereof in connection with the transactions
D-1
contemplated by the foregoing documents, was, at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signature of
such person appearing on any such document is his or her genuine signature.
Capitalized terms used but not otherwise defined herein have the
respective meanings assigned to them in the Mortgage Loan Purchase Agreement
and, if not defined therein, then in the Indemnification Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name as of ___________,
2001.
By:
---------------------------
Name:
Title:
The undersigned, an officer of the Company, hereby certifies that
___________________ is the duly elected and qualified and acting Assistant
Secretary of the Company and that the signature appearing above is his/her
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of ____________,
2001.
By:
---------------------------
Name:
Title:
X-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-C2
CERTIFICATE OF GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
In connection with the execution and delivery by Greenwich Capital
Financial Products, Inc. (the "Company") of, and the consummation of the various
transactions contemplated by, that certain Mortgage Loan Purchase Agreement
dated as of December 18, 2001 (the "Mortgage Loan Purchase Agreement"), between
Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII") and the Company, and
the Indemnification Agreement dated as of December 18, 2001 (the
"Indemnification Agreement"), among the Company, SBMS VII, Xxxxxxx Xxxxx Xxxxxx
Inc., Greenwich Capital Markets, Inc., Credit Suisse First Boston Corporation,
X.X. Xxxxxx Securities Inc. and First Union Securities, Inc. (together, the
Mortgage Loan Purchase Agreement and the Indemnification Agreement are referred
to herein as the "Agreements"), the undersigned hereby certifies that (i) the
representations and warranties of the Company in the Agreements are true and
correct in all material respects at and as of the date hereof (or, in the case
of the representations and warranties set forth in Exhibit C of the Mortgage
Loan Purchase Agreement, as of such other date specifically provided in the
particular representation and warranty) with the same effect as if made on the
date hereof (or, in the case of the representations and warranties set forth in
Exhibit C of the Mortgage Loan Purchase Agreement, on such other date
specifically provided in the particular representation and warranty), and (ii)
the Company has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part required under the Mortgage Loan
Purchase Agreement to be performed or satisfied at or prior to the date hereof.
Capitalized terms used but not otherwise defined herein have the respective
meanings assigned to them in the Mortgage Loan Purchase Agreement and, if not
defined therein, then in the Indemnification Agreement.
Certified this ___ day of December, 2001.
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
---------------------------
Name:
Title:
D-2-1
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL
TO THE SELLER
December __, 2001
Addressees listed on Exhibit A hereto
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series
2001-C2
Ladies and Gentlemen:
I am a Senior Vice President and Deputy General Counsel of Greenwich
Capital Markets, Inc. ("GCM") and have acted as counsel to GCM's affiliate,
Greenwich Capital Financial Products, Inc. (the "Company") pursuant to Section
7(h) of the Mortgage Loan Purchase Agreement, dated as of December 18, 2001 (the
"Mortgage Loan Purchase Agreement"), between Salomon Brothers Mortgage
Securities VII, Inc. ("SBMS VII") and the Company, relating to the sale by the
Company of certain mortgage loans (the "Mortgage Loans"). I have also acted as
counsel to the Company in connection with its entering into the Indemnification
Agreement dated as of December 18, 2001 (the "Indemnification Agreement"), among
the Company, SBMS VII, Xxxxxxx Xxxxx Xxxxxx Inc., GCM, Credit Suisse First
Boston Corporation, X.X. Xxxxxx Securities Inc. and First Union Securities, Inc.
The Mortgage Loan Purchase Agreement and the Indemnification Agreement are
collectively referred to herein as the "Agreements." Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Mortgage Loan
Purchase Agreement.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such corporate records of the Company, certificates of
public officials, officers of the Company and other persons and other documents,
agreements and instruments and have made such other investigations as I have
deemed necessary or appropriate for purposes of this opinion.
Based upon the foregoing, I am of the opinion that:
1. The Company is a validly existing Delaware corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority under such laws to enter into and perform its obligations under the
Agreements.
2. Each Agreement has been duly authorized, executed and delivered by
the Company.
3. No consent, approval, authorization or order of any court,
governmental agency or body is required in connection with the execution and
delivery by the Company of the Agreements, except for those consents, approvals,
authorizations or orders that previously have been obtained.
D-3A-1
4. The transfer of the Mortgage Loans as provided in the Agreements and
the fulfillment of the other terms of the Agreements will not conflict with or
result in a violation of the Certificate of Incorporation or the By-laws of the
Company or any agreement, instrument, order, writ, judgment or decree known to
me to which the Company is a party or is subject.
5. To the best of my knowledge, there are no actions or proceedings
against the Company, pending (with regard to which the Company has received
service of process) or overtly threatened in writing before any court,
governmental agency or arbitrator which affect the enforceability of the
Agreements, or which would draw into question the validity of the Agreements or
any action taken or to be taken in connection with the Company's obligations
contemplated therein, or which would materially impair the Company's ability to
perform under the terms of the Agreements.
The opinions expressed herein are limited to the laws of the State of
New York and the federal law of the United States.
This letter of opinion is given to you for your sole benefit, and no
other person or entity is entitled to rely hereon without the express written
consent of the Company or GCM.
Very truly yours,
D-3A-2
EXHIBIT D-3B
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX,
SPECIAL COUNSEL TO THE SELLER
D-3B-1
SIDLEY XXXXXX XXXXX & XXXX
a partnership including professional corporations
[SIDLEY XXXXXX XXXXX & XXXX LETTERHEAD]
December 27, 2001
Salomon Brothers Mortgage First Union Securities, Inc.
Securities VII, Inc. 000 Xxxxx Xxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services
Xxxxxxx Xxxxx Barney Inc. 00 Xxxxx Xxxxxx, 00xx Xxxxx
000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
Greenwich Capital Markets, Inc. 00 Xxxxxx Xxxxxx
000 Xxxxxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Greenwich Capital Financial Products,
Credit Suisse First Boston Corporation Inc.
00 Xxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxxxxxxxxx 00000
X.X. Xxxxxx Securities Inc. Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2001-C2
Ladies and Gentlemen:
We have acted as special counsel to Greenwich Capital Financial
Products, Inc. ("GCFP") in connection with certain matters relating to the
transactions contemplated by that certain Mortgage Loan Purchase Agreement,
dated as of December 18, 2001 (the "Mortgage Loan Purchase Agreement"), between
GCFP, as seller, and Salomon Brothers Mortgage Securities VII, Inc. ("SBMS
VII"), as purchaser.
This opinion letter is being provided to you pursuant to Section
7(h) of the Mortgage Loan Purchase Agreement. Capitalized terms not defined
herein have the respective meanings set forth in, or otherwise assigned to them
pursuant to, the Mortgage Loan Purchase Agreement.
SIDLEY XXXXXX XXXXX & XXXX NEW YORK
December 27, 2001
Page 2
For the purposes of this opinion letter, we have reviewed the
Mortgage Loan Purchase Agreement. In addition, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of such other
documents and records as we have deemed relevant or necessary as the basis for
the opinions contained in this letter; we have obtained such certificates from
and made such inquiries of officers and representatives of the parties to the
Mortgage Loan Purchase Agreement and public officials as we have deemed relevant
or necessary as the basis for such opinions; and we have relied upon, and
assumed the accuracy of, such other documents and records, such certificates and
the statements made in response to such inquiries, with respect to the factual
matters upon which such opinions are based. We have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters material to this opinion contained in the Mortgage Loan Purchase
Agreement, (ii) the legal capacity of natural persons, (iii) the genuineness of
all signatures, (iv) the authenticity of all documents submitted to us as
originals, (v) the conformity to authentic originals of all documents submitted
to us as certified, conformed, photostatic or electronic copies, (vi) the due
organization of the parties to the Mortgage Loan Purchase Agreement and the
valid existence of each such entity in good standing under the laws of its
jurisdiction of organization, (vii) except as expressly addressed in opinion
paragraph 2 below, the power and authority of the parties to the Mortgage Loan
Purchase Agreement to enter into, perform under and consummate the transactions
contemplated by the Mortgage Loan Purchase Agreement, without any resulting
conflict with or violation of the organizational documents of any such party or
with or of any law, rule, regulation, order or decree applicable to any such
party or its assets, and without any resulting default under or breach of any
other agreement or instrument by which any such party is bound or which is
applicable to it or its assets, (viii) the due authorization by all necessary
action, and the due execution and delivery, of the Mortgage Loan Purchase
Agreement by the parties thereto, (ix) except as expressly addressed in opinion
paragraph 1 below, the constitution of the Mortgage Loan Purchase Agreement as
the legal, valid and binding obligation of each party thereto, enforceable
against such party in accordance with its terms, and (x) the absence of any
other agreement that supplements or otherwise modifies the express terms of the
Mortgage Loan Purchase Agreement.
In delivering this opinion letter, we do not express any opinions
concerning the laws of any jurisdiction other than the laws of the State of New
York and, where expressly referred to below, the federal laws of the United
States of America (without regard to conflicts of law principles). In addition,
we do not express any opinion with respect to the tax, securities or "doing
business" laws of any particular jurisdiction or with respect to any matter not
expressly addressed below.
Our opinions set forth below with respect to the enforceability of
any agreement or any particular right or obligation under any agreement are
subject to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any
SIDLEY XXXXXX XXXXX & XXXX NEW YORK
December 27, 2001
Page 3
provision that purports to waive (i) the application of any federal, state or
local statute, rule or regulation, (ii) the application of any general
principles of equity or (iii) the obligation of diligence, (b) any provision
that purports to grant any remedies that would not otherwise be available at
law, to restrict access to any particular legal or equitable remedies, to make
any rights or remedies cumulative and enforceable in addition to any other right
or remedy, to provide that the election of any particular remedy does not
preclude recourse to one or more other remedies, to provide that the failure to
exercise or the delay in exercising rights or remedies will not operate as a
waiver of such rights or remedies, to impose penalties or forfeitures or to
provide for set-off in the absence of mutuality between the parties, (c) any
provision that purports to release, exculpate or exempt a party from, or
indemnify a party for, liability for any act or omission on its part that
constitutes negligence, recklessness or willful or unlawful conduct, (d) any
provision that purports to govern matters of civil procedure, including any such
provision that purports to establish evidentiary standards, to waive objections
to venue or forum, to confer subject matter jurisdiction on any court that would
not otherwise have such jurisdiction or to waive any right to a jury trial, or
(e) any provision that purports to render unenforceable any modification, waiver
or amendment that is not executed in writing, to sever any provision of any
agreement, to appoint any person or entity as the attorney-in-fact of any other
person or entity or to provide that any agreement or any particular provision
thereof is to be governed by or construed in accordance with the laws of any
jurisdiction other than the State of New York; (4) bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference, fraudulent
conveyance and transfer, moratorium and other similar laws affecting the rights
of creditors or secured parties generally; and (5) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of any provision of any agreement that
purports or is construed to provide indemnification with respect to securities
law violations.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Mortgage Loan Purchase Agreement constitutes a valid, legal
and binding agreement of GCFP, enforceable against GCFP in accordance with
its terms.
2. The execution, delivery and performance of the Mortgage Loan
Purchase Agreement by GCFP will not conflict with or result in a violation
of any federal or State of New York statute or regulation generally
applicable to domestic corporations in connection with transactions of the
type contemplated by the Mortgage Loan Purchase Agreement.
The opinions expressed herein are being delivered to you as of the
date hereof, and we assume no obligation to advise you of any changes of law or
fact that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is being delivered solely for your benefit in connection with the transactions
contemplated by the Mortgage Loan Purchase Agreement. Accordingly, it may not be
quoted, filed with any governmental authority or other regulatory agency or
otherwise circulated or utilized for any other purpose without our prior written
consent.
SIDLEY XXXXXX XXXXX & XXXX NEW YORK
December 27, 2001
Page 4
Very truly yours,
EXHIBIT D-3C
FORM OF LETTER RELATING
TO DISCLOSURE FROM SIDLEY XXXXXX XXXXX & XXXX,
SPECIAL COUNSEL TO THE SELLER
D-3C-1
[SIDLEY XXXXXX XXXXX & XXXX LETTERHEAD]
December 27, 2001
Salomon Brothers Mortgage X.X. Xxxxxx Securities Inc.
Securities VII, Inc. 000 Xxxx Xxxxxx, 0xx Xxxxx
000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
First Union Securities, Inc.
Xxxxxxx Xxxxx Barney Inc. 000 Xxxxx Xxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Greenwich Capital Markets, Inc.
Credit Suisse First Boston Corporation 000 Xxxxxxxxx Xxxx
00 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series 2001-C2
Ladies and Gentlemen:
We have acted as special counsel to Salomon Brothers Mortgage
Securities VII, Inc. (the "Depositor"), Salomon Brothers Realty Corp. ("SBRC"),
Greenwich Capital Financial Products, Inc. ("GCFP") and Artesia Mortgage Capital
Corporation ("AMCC") in connection with certain matters relating to the
following transactions (collectively, the "Transactions"):
(i) the sale by SBRC, and the purchase by the Depositor, of certain
multifamily and commercial mortgage loans (the "SBRC Mortgage Loans"),
pursuant to that certain Mortgage Loan Purchase Agreement, dated as of
December 18, 2001 (the "SBRC Mortgage Loan Purchase Agreement"), between
SBRC and the Depositor;
(ii) the sale by GCFP, and the purchase by the Depositor, of certain
multifamily and commercial mortgage loans (the "GCFP Mortgage Loans"),
pursuant to that certain Mortgage Loan Purchase Agreement, dated as of
December 18, 2001 (the "GCFP Mortgage Loan Purchase Agreement"), between
GCFP and the Depositor;
(iii) the sale by AMCC, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "AMCC Mortgage
Loans"), pursuant to
SIDLEY XXXXXX XXXXX & XXXX NEW YORK
December 27,2001
Page 2
that certain Mortgage Loan Purchase Agreement, dated as of December 18,
2001 (the "AMCC Mortgage Loan Purchase Agreement"), between AMCC and the
Depositor;
(iv) the sale by Allied Capital Corporation ("Allied"), and the
purchase by the Depositor, of a certain commercial mortgage loan (the "MJ
Ocala Hilton Loan"), pursuant to that certain Mortgage Loan Purchase
Agreement, dated as of December 18, 2001 (the "Allied Mortgage Loan
Purchase Agreement") between Allied and the Depositor;
(v) the creation of a common law trust (the "Trust") and the
issuance of an aggregate $877,619,220 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-C2 (the
"Certificates"), consisting of 22 classes designated Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class E, Class X-1, Class X-2, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q, Class BR, Class R and Class Y, pursuant to that certain Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among the Depositor as Depositor, Midland Loan
Services, Inc., as Master Servicer, as General Special Servicer and as
Birch Run Special Servicer, Xxxxx Fargo Bank Minnesota, N.A., as Trustee,
XX Xxxxxx Chase Bank, as Certificate Administrator and Tax Administrator,
Fortress CBO Investments I, Ltd. as Birch Run Companion Mortgage Loan
Noteholder and Allied as MJ Ocala Hilton Companion Mortgage Loan
Noteholder;
(vi) the conveyance of the SBRC Mortgage Loans, the GCFP Mortgage
Loans, the AMCC Mortgage Loans and the MJ Ocala Hilton Loan (collectively,
the "Mortgage Loans") by the Depositor to the Trust, pursuant to the
Pooling and Servicing Agreement, in exchange for the issuance of the
Certificates; and
(vii) the sale by the Depositor, and the purchase by Xxxxxxx Xxxxx
Xxxxxx Inc. ("SSBI"), Greenwich Capital Markets, Inc. ("Greenwich
Capital"), Credit Suisse First Boston Corporation ("CSFB"), X.X. Xxxxxx
Securities Inc. ("X.X. Xxxxxx") and First Union Securities, Inc.
("Wachovia Securities"; and, together with SSBI, Greenwich Capital, CSFB
and X.X. Xxxxxx in such capacity, the "Underwriters"), of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D and Class E Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to that
certain Underwriting Agreement, dated as of December 18, 2001 (the
"Underwriting Agreement"), between the Depositor and the Underwriters.
The SBRC Mortgage Loan Purchase Agreement, the GCFP Mortgage Loan
Purchase Agreement, the AMCC Mortgage Loan Purchase Agreement and the Allied
Mortgage Loan Purchase Agreement are collectively referred to herein as the
"Mortgage Loan Purchase Agreements". The Mortgage Loan Purchase Agreements, the
Pooling and Servicing Agreement and the Underwriting Agreement are collectively
referred to herein as the "Agreements".
SIDLEY XXXXXX XXXXX & XXXX NEW YORK
December 27,2001
Page 3
Capitalized terms not defined herein have the respective meanings set forth in
the Pooling and Servicing Agreement and, to the extent not defined therein, in
the other Agreements.
For the purposes of this letter, we have reviewed: the Agreements;
the Depositor's registration statement on Form S-3 (No. 333-63752) (the
"Registration Statement") filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"); the
Prospectus, dated December 10, 2001, relating to publicly offered mortgage
pass-through certificates evidencing interests in trust funds established by the
Depositor (the "Basic Prospectus"); and the Prospectus Supplement, dated
December 18, 2001, specifically relating to the Trust and the Publicly Offered
Certificates (including all exhibits and annexes thereto, the "Original
Prospectus Supplement") the Supplement to the Original Prospectus Supplement
(the "Additional Supplement"; and, together with the Basic Prospectus and the
Original Prospectus Supplement, the "Prospectus"). In addition, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of
such other documents and records as we have deemed relevant or necessary as the
basis for the statements made in this letter; we have obtained such certificates
from and made such inquiries of officers and representatives of the respective
parties to the Agreements and public officials as we have deemed relevant or
necessary as the basis for the statements made in this letter; and we have
relied upon, and assumed the accuracy of, such other documents and records, such
certificates and the statements made in response to such inquiries, with respect
to the factual matters upon which the statements made in this letter are based.
We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the
Agreements, (ii) the legal capacity of natural persons, (iii) the genuineness of
all signatures, (iv) the authenticity of all documents submitted to us as
originals, (v) the conformity to authentic originals of all documents submitted
to us as certified, conformed, photostatic or electronic copies, (vi) the due
authorization by all necessary action, and the due execution and delivery, of
the Agreements by the parties thereto, (vii) the constitution of each of the
Agreements as the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, (viii) compliance
with the Agreements by the parties thereto, (ix) the conformity, to the
requirements of the Pooling and Servicing Agreement and the respective Mortgage
Loan Purchase Agreements, of the Mortgage Notes, the Mortgages and the other
documents relating to the Mortgage Loans delivered to the Custodian by, on
behalf of or at the direction of the Depositor, SBRC, GCFP, AMCC and Allied, (x)
the conformity of the text of each document filed with the Commission through
the Commission's Electronic Data Gathering, Analysis and Retrieval System to the
printed documents reviewed by us, and (xi) the absence of any agreement that
supplements or otherwise modifies the express terms of the Agreements. In
rendering this letter, we do not make any statement concerning the laws of any
jurisdiction other than the federal laws of the United States of America.
In the course of acting as special counsel to the Depositor, SBRC,
GCFP and AMCC in connection with the preparation of the Prospectus, we have
generally reviewed and discussed with certain representatives of the Depositor,
SBRC, GCFP, AMCC, SSBI, Greenwich Capital and the other parties to the
Agreements and their respective counsel (in addition to us)
SIDLEY XXXXXX XXXXX & XXXX NEW YORK
December 27,2001
Page 4
the information set forth in the Prospectus, other than any documents or
information incorporated by reference in the Prospectus. In addition, we have
reviewed loan summaries delivered to us by SBRC, GCFP and AMCC with respect to
the SBRC Mortgage Loans, the GCFP Mortgage Loans and the AMCC Mortgage Loans,
respectively; and we have undertaken a limited review of copies of certain
environmental insurance policies and other selected Mortgage Loan documents with
respect to certain SBRC Mortgage Loans, GCFP Mortgage Loans and AMCC Mortgage
Loans. While we have not otherwise made any independent check or verification
of, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, on the basis of the foregoing, nothing has come to our attention
that causes us to believe that the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the Additional
Prospectus Supplement or as of the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that we make no statement as
to: (i) any accounting, financial or statistical data or other information of
that nature contained in or omitted from the Registration Statement or the
Prospectus; (ii) any documents or information incorporated by reference in the
Registration Statement or the Prospectus; or (iii) any information on or omitted
from the diskette that accompanies the Prospectus. In that connection, we advise
you that we have, as to materiality, relied to the extent we deemed appropriate
upon the judgment of officers and representatives of the Depositor, SBRC, GCFP
and AMCC. In addition, in that connection, we call to your attention that, with
your knowledge and consent, except as stated above, we have not examined or
otherwise reviewed any of the Mortgage Files, Servicing Files or any particular
documents contained in such files or any other documents with respect to the
Mortgage Loans.
When used in this letter, the term "attention" or any other word or
phrase of similar import means the conscious awareness of facts or other
information of solely those attorneys who are currently practicing law with
Sidley Xxxxxx Xxxxx & Xxxx and have been actively involved in representing the
Depositor, SBRC, GCFP and AMCC in connection with any matters relating to the
Transactions. With your permission, no attempt was made by such attorneys to
gather information from any other attorneys currently practicing law with Sidley
Xxxxxx Xxxxx & Xxxx that may have represented the Depositor, SBRC, GCFP, AMCC or
any of their respective affiliates in other matters or to review any files
associated with those matters.
This letter is being delivered to you as of the date hereof, and we
assume no obligation to advise you of any changes of law or fact that may occur
after the date hereof, notwithstanding that such changes may affect the
statements made herein. This letter is solely for your benefit in connection
with the Transactions and may not be relied on in any manner for any other
purpose or by any other person or transmitted to any other person without our
prior consent.
SIDLEY XXXXXX XXXXX & XXXX NEW YORK
December 27,2001
Page 5
Very truly yours,
