Exhibit 99.5
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective as of December 18, 2001, between Artesia Mortgage Capital
Corporation ("AMCC"), 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
AMCC 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
Greenwich Capital Financial Products,
Inc. ("GCFP") and the remaining Other Loan from Allied Capital Corporation
("Allied"; and together with SBRC and GCFP, 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.
AMCC 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 AMCC 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 AMCC, 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 $118,624,328, 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.
(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 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
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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 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:
10
(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.
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, J.P.
11
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 Sidley Xxxxxx Xxxxx & Xxxx, as
special counsel for the Seller, 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) 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);
(j) a written letter of Sidley Xxxxxx Xxxxx & Xxxx, as
special counsel to the Seller, substantially in the Form of Exhibit D-3B,
relating to the disclosure in the Prospectus regarding the Mortgage Loans and
AMCC, dated the Closing Date and addressed to the Purchaser and each of the
other Interested Parties (except for the Rating Agencies); and
(k) 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 the Seller, SSBI, Greenwich Capital 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,
12
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 0000 Xxxxxxxxx
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, attention: Xxxxx Xxxxx,
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 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
13
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.
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
14
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 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]
15
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.
ARTESIA MORTGAGE CAPITAL CORPORATION
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 PROPERTY ADDRESS
107 The Marketplace at Palmdale 010-00000688 AMCC 39176 - 00000 00xx Xxxxxx West
116 0000 Xxxxxxxx Xxxxxxxxx 010-00000659 AMCC 0000 Xxxxxxxx Xxxxxxxxx
000 Xxxxxx Xxxxx Apartments 010-00000768 AMCC 0000 Xxxxxxx Xxxx
140 Agilent Technologies Building 010-00000720 AMCC 0000 Xxxxxxxxx Xxxxxxxx Xxx
147 Xxxxxxx Place Industrial 010-00000766 AMCC 000-000 Xxxxxxx Xxxxx
148 Figueroa Industrial 010-00000749 AMCC 18093 - 00000 Xxxxx Xxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxx Xxxxxx 020-00000071 AMCC 0000 Xxxxxxx Xxxxxxxxx
154 Xxxxxxx West Plaza 010-00000735 AMCC 7671, 7675, 7685 and 0000 Xxxxx
Xxxxxxxx Xxxxxx
166 Promenade At Temecula 010-00000693 AMCC 40620 & 00000 Xxxxxxxxxx Xxxx
179 Westland Shopping Center 010-00000652 AMCC 0000 Xxxx Xxxxx Xxxxxxx Xxxxx
000 Xxxxxxxx Xxxx Plaza 010-00000709 AMCC 510, 602 & 000 Xxxx Xxxxxxxx Xxxx
186 Santorini at the Park Apartments 010-00000748 AMCC 0000 Xxxxxx Xxxxxx Xxxxx
000 Xxxxx Golf and Ihop Pad Site 010-00000639 AMCC 00000 Xxxxx Xxxxx Xxxxxx
198 Ventura Commerce Center II 010-00000547 AMCC 0000 Xxxxxxxxx Xxxx and 0000 Xxxx
Xxxxx
000 Xxxxxxxxxxx II 010-00000706 AMCC 00000 Xxxxxxx Xxxxxxx
201 0000 Xxx Xxxxx Xxxxxx Xxxx 010-00000764 AMCC 0000 Xxx Xxxxx Xxxxxx Xxxx
203 Spring Mill Apartments 010-00000753 AMCC 24, 25, 47, 48, 193, 194, and 000 Xxxxxx'x
Xxx
204 Glyndon Square Shopping Center 010-00000495 AMCC 0000-0000 Xxxxxx Xxxx
000 Xxxx Xxxxxx Xxxx Xxxxxxxxxx Xxxx - 010-00000633 AMCC 00000 Xxxx Xxxxxx Xxxx Xxxx
Phase 2
211 National Tour Building 010-00000721 AMCC 30222 Xxxxxxxxx
215 Aspen Apartments 010-00000742 AMCC 1411, 1413, 1415, 1421 & 0000 Xxxxx
Xxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxxx Apartments 010-00000744 AMCC 0000 Xxxxxxx Xxxxxx
218 Cimmaron Professional Plaza 010-00000758 AMCC 0000 Xxxxx Xxxxxxxx Xxxx
219 California Creations Building 010-00000538 AMCC 0000 Xxxxx Xxxxxxx Xxxxxx
-------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxxx / Xxxxx Xxxxx 010-00000383 AMCC
Portfolio
000x Xxxxxxxxx Xxxxxx 010-00000383a AMCC 0000 Xxxxx Xxxxxx Xxxxxx
221b Cedar Plaza Shopping Center 010-00000383b AMCC 4647 - 0000 Xxxxx Xxxxxx Xxxxxx
-------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx Apartments 010-00000761 AMCC 0000 Xxxxxxx Xxxx
-------------------------------------------------------------------------------------------------------------------------------
225 2380 Wycliff / 970 Xxxxxxx 010-00000115 AMCC
Portfolio
225a 0000 Xxxxxxx Xxxxxx 010-00000115a AMCC 0000 Xxxxxxx Xxxxxx
225b 000 Xxxxxxx Xxxxxx 010-00000115b AMCC 000 Xxxxxxx Xxxxxx
-------------------------------------------------------------------------------------------------------------------------------
226 Greenbrier Apartments II 010-00000751 AMCC 0000 00xx Xxxxxx Xxxxxxxxx
227 Greenbrier Apartments III 010-00000752 AMCC 0000 00xx Xxxxxx Xxxxxxxxx
228 Greenbrier Apartments I 010-00000750 AMCC 0000 00xx Xxxxxx Xxxxxxxxx
230 Rite Aid Drugstore 010-00000352 AMCC 000 Xxxx Xxxxx Xxxxxx
231 000-00 000xx Xxxxxx 010-00000376 AMCC 000-00 000xx Xxxxxx
000 16249-16259 Stagg Street 010-00000511 AMCC 16249-16259 Xxxxx Xxxxxx
000 0000 Xxxxxxx Xxxxx 010-00000332 AMCC 0000 Xxxxxxx Xxxxx
234 Toll House Office Building 010-00000256 AMCC 000 Xxxxx Xxxxx Xxxx Xxxxxx
235 Linden Hills Co-op Grocery Store 010-00000377 AMCC 0000 Xxxx 00xx Xxxxxx
236 Goodyear/Wenco Building 010-00000404 AMCC 0000 Xxxxx Xxxxx Xxxxxxx
238 WMC International Industrial 010-00000329 AMCC 00000 Xxxxx 0xx Xxxxxx
Xxxxxxxx
000 Desert Club Apartments 010-00000284 AMCC 0000 Xxxx Xxxxx Xxxxxx
PROPERTY
CONTROL PROPERTY SIZE UNIT
NUMBER CITY STATE ZIP CODE SIZE TYPE
107 Xxxxxxxx XX 00000 000,000 XX
000 Xxxxx Xxxxxx XX 00000 97,918 SF
123 Xxx Xxxxx XX 00000 344 Xxxxx
000 Xxxxxxxxx XX 00000 60,000 SF
147 Xxx Xxxxxxx XX 00000 90,155 SF
148 Xxx Xxxxxxx XX 00000 74,520 SF
150 Xxxxxx Xxxxxxx XX 00000 71,749 SF
154 Xxxx XX 00000 61,433 SF
166 Xxxxxxxx XX 00000 22,228 SF
179 Xxxx XX 00000 36,935 SF
182 Xxxxxxx XX 00000 36,860 SF
186 Xxxxxxx XX 00000 31 Xxxxx
000 Xxxxx XX 00000 21,960 SF
198 Xxxxxxx XX 00000 47,422 SF
199 Xxxxxxx XX 00000 20,974 XX
000 XxXxxx XX 00000 25,831 SF
000 Xxxxxxx Xxxxxx XX 00000 Xxxxx
Xxxxxxxx 00
000 Xxxxxxx XX 00000 29,857 SF
206 Xxxxxxx XX 00000 57,600 SF
000 Xxxxxx Xxxxx XX 00000 22,840 SF
Xxxxxxxxx
000 Xxxxx XX 00000 45 Xxxxx
000 Xxxxxxxxx XX 00000 24 Xxxxx
000 Xxx Xxxxx XX 00000 12,600 SF
219 Xxxxxxxxx XX 00000 50,000 SF
----------------------------------------------------------------------------------
221 20,374 XX
000x Xxxxx XX 00000 14,674 XX
000x Xxxxx XX 00000 5,700 SF
----------------------------------------------------------------------------------
000 Xxxxxxxxxxx XX 00000 44 Units
----------------------------------------------------------------------------------
225 48,541 XX
000x Xx. Xxxx XX 00000 30,832 SF
225b Xx. Xxxx XX 00000 17,709 SF
----------------------------------------------------------------------------------
000 Xxxxx XX 00000 24 Xxxxx
000 Xxxxx XX 00000 24 Xxxxx
000 Xxxxx XX 00000 24 Units
000 Xx Xxxxxxx XX 00000 17,710 SF
231 Xxxxxxx XX 00000 32,189 SF
232 Xxx Xxxx XX 00000 14,700 SF
233 Xxxxxx XX 00000 16,740 SF
234 Xxx Xxxxx XX 00000 4,200 SF
235 Xxxxxxxxxxx XX 00000 9,000 SF
236 Xxxxx XX 00000 23,413 SF
238 Xxxxxxx XX 00000 13,432 SF
239 Xxxxxx XX 00000 16 Units
A-1
CROSS
COLLATERALIZED
MORTGAGE LOAN
CROSS GROUP AGGREGATE
COLLATERALIZED CUT-OFF DATE ORIGINAL
CONTROL (MORTGAGE PRINCIPAL OWNERSHIP PRINCIPAL MORTGAGE
NUMBER LOAN / PROPERTY NAME LOAN GROUP) BALANCE INTEREST BALANCE RATE
107 The Marketplace at Palmdale No 19,194,866 Fee Simple 19,500,000 7.2310%
116 0000 Xxxxxxxx Xxxxxxxxx No 13,408,094 Fee Simple 13,500,000 7.9500%
000 Xxxxxx Xxxxx Apartments No 9,880,000 Fee Simple 9,880,000 7.1000%
140 Agilent Technologies No 7,037,629 Fee Simple 7,060,000 7.6100%
Building
147 Xxxxxxx Place Industrial Yes (X1) 6,286,000 Fee Simple 3,428,000 7.0000%
148 Xxxxxxxx Industrial Yes (X1) 6,286,000 Fee Simple 2,858,000 7.0000%
000 Xxxxxxx Xxxxx Xxxxxx No 6,042,062 Fee Simple 6,050,000 7.4000%
000 Xxxxxxx Xxxx Xxxxx No 5,196,367 Fee Simple 5,200,000 7.8000%
166 Promenade At Temecula No 4,334,062 Fee Simple 4,375,000 7.2000%
179 Westland Shopping Center No 3,686,246 Fee Simple 3,700,000 8.1100%
000 Xxxxxxxx Xxxx Xxxxx No 3,291,822 Fee Simple 3,300,000 7.6500%
186 Santorini at the Park Apartments No 3,150,000 Fee Simple 3,150,000 6.7000%
195 Uinta Golf and Ihop Pad Site No 2,605,858 Fee Simple 2,625,000 8.3400%
198 Ventura Commerce Center II No 2,549,520 Fee Simple 2,564,820.02 (c) 8.4000%
199 Willowbrook II No 2,542,476 Fee Simple 2,550,000 7.7100%
201 0000 Xxx Xxxxx Xxxxxx Xxxx No 2,325,000 Fee Simple 2,325,000 7.1200%
000 Xxxxxx Xxxx Xxxxxxxxxx No 2,300,000 Fee Simple 2,300,000 6.7500%
000 Xxxxxxx Xxxxxx Shopping Center No 2,218,183 Fee Simple 2,280,000 8.2000%
000 Xxxx Xxxxxx Xxxx Industrial No 2,101,733 Fee Simple 2,117,000 8.6000%
Park - Phase 2
211 National Tour Building No 1,779,805 Fee Simple 1,785,000 7.7600%
215 Aspen Apartments No 1,650,000 Fee Simple 1,650,000 6.9000%
000 Xxxxxxxx Xxxxxxx No 1,498,709 Fee Simple 1,500,000 6.7500%
Apartments
218 Cimmaron Professional No 1,450,000 Fee Simple 1,450,000 7.0400%
Plaza
219 California Creations No 1,379,840 Fee Simple 1,400,000 8.1000%
Building
----------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxxx / Xxxxx No 1,269,067 1,325,000 7.5000%
Xxxxx Xxxxxxxxx
000x Xxxxxxxxx Xxxxxx Fee Simple
000x Xxxxx Xxxxx Xxxxxxxx Xxxxxx Fee Simple
----------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx Apartments No 1,250,000 Fee Simple 1,250,000 6.7000%
----------------------------------------------------------------------------------------------------------------------------------
225 2380 Wycliff / 970 Xxxxxxx No 1,228,688 1,300,000 7.9000%
Portfolio
225a 0000 Xxxxxxx Xxxxxx Fee Simple
225b 000 Xxxxxxx Xxxxxx Fee Simple
----------------------------------------------------------------------------------------------------------------------------------
226 Greenbrier Apartments II No 1,074,074 Fee Simple 1,075,000 6.7500%
000 Xxxxxxxxxx Xxxxxxxxxx XXX No 1,074,074 Fee Simple 1,075,000 6.7500%
228 Greenbrier Apartments I No 1,071,077 Fee Simple 1,072,000 6.7500%
230 Rite Aid Drugstore No 949,302 Fee Simple 1,000,000 6.9500%
231 167-55 148th Avenue No 862,654 Fee Simple 900,000 7.6000%
232 16249-16259 Stagg Street No 727,094 Fee Simple 740,000 8.8000%
233 0000 Xxxxxxx Xxxxx No 626,169 Fee Simple 655,000 7.4500%
000 Xxxx Xxxxx Xxxxxx Xxxxxxxx Xx 000,000 Fee Simple 675,000 7.8000%
000 Xxxxxx Xxxxx Co-op Grocery No 610,626 Fee Simple 690,000 7.2000%
Store
236 Goodyear/Wenco Building No 554,728 Fee Simple 630,000 7.3000%
238 WMC International Industrial No 463,274 Fee Simple 534,000 7.9500%
Building
239 Desert Club Apartments No 329,468 Fee Simple 345,000 7.9500%
MASTER INTEREST ANTICIPATED
CONTROL SERVICING RATE ACCRUAL REPAYMENT SCHEDULED
NUMBER FEE RATE TYPE METHOD LOAN TYPE NOTE DATE DATE MATURITY DATE
107 0.0625% Fixed 30/360 Fully 05/25/01 NAP 07/01/16
Amortizing
116 0.0625% Fixed Actual/360 Balloon 12/12/00 NAP 01/01/11
123 0.0625% Fixed Actual/360 Balloon 11/29/01 NAP 12/01/08
140 0.0625% Fixed Actual/360 Balloon 08/17/01 NAP 09/01/11
147 0.0625% Fixed Actual/360 Balloon 11/21/01 NAP 12/01/11
148 0.0625% Fixed Actual/360 Balloon 11/21/01 NAP 12/01/11
150 0.0625% Fixed Actual/360 Balloon 09/04/01 NAP 10/01/11
154 0.0625% Fixed Actual/360 Balloon 10/04/01 NAP 11/01/11
166 0.0625% Fixed 30/360 Fully 08/21/01 NAP 09/01/16
Amortizing
179 0.0625% Fixed Actual/360 Balloon 07/25/01 NAP 08/01/11
182 0.0625% Fixed Actual/360 Balloon 07/10/01 NAP 08/01/06
186 0.0625% Fixed Actual/360 Balloon 11/20/01 NAP 12/01/11
195 0.0625% Fixed Actual/360 Balloon 10/17/00 NAP 11/01/10
198 0.0625% Fixed Actual/360 Balloon 12/08/99 NAP 01/01/10
199 0.0625% Fixed Actual/360 Balloon 06/18/01 NAP 07/01/11
201 0.0625% Fixed Actual/360 Balloon 11/21/01 NAP 12/01/11
203 0.0625% Fixed Actual/360 Balloon 11/16/01 NAP 12/01/11
204 0.0625% Fixed Actual/360 Balloon 08/09/99 NAP 09/01/09
206 0.0625% Fixed Actual/360 Balloon 09/18/00 NAP 10/01/10
211 0.0625% Fixed Actual/360 Balloon 06/20/01 NAP 07/01/11
215 0.0625% Fixed Actual/360 Balloon 11/02/01 NAP 12/01/11
216 0.0625% Fixed Actual/360 Balloon 10/08/01 NAP 11/01/11
218 0.0625% Fixed Actual/360 Balloon 11/20/01 NAP 12/01/11
219 0.0625% Fixed Actual/360 Balloon 11/12/99 NAP 12/01/09
-----------------------------------------------------------------------------------------------
221 0.0625% Fixed Actual/360 Balloon 11/20/98 NAP 12/01/08
221a
221b
-----------------------------------------------------------------------------------------------
224 0.0625% Fixed 30/360 Fully 11/15/01 NAP 12/01/16
Amortizing
-----------------------------------------------------------------------------------------------
225 0.0625% Fixed Actual/360 Balloon 11/20/97 NAP 12/01/12
225a
225b
-----------------------------------------------------------------------------------------------
226 0.0625% Fixed Actual/360 Balloon 10/24/01 NAP 11/01/11
227 0.0625% Fixed Actual/360 Balloon 10/24/01 NAP 11/01/11
228 0.0625% Fixed Actual/360 Balloon 10/24/01 NAP 11/01/11
230 0.0625% Fixed Actual/360 Balloon 08/24/98 NAP 09/01/08
231 0.0625% Fixed Actual/360 Balloon 11/17/98 NAP 12/01/08
232 0.0625% Fixed Actual/360 Balloon 03/08/00 NAP 04/01/10
233 0.0625% Fixed Actual/360 Balloon 10/20/98 NAP 11/01/08
234 0.0625% Fixed Actual/360 Balloon 08/12/98 NAP 09/01/08
235 0.0625% Fixed 30/360 Fully 10/02/98 NAP 11/01/14
Amortizing
236 0.0625% Fixed 30/360 Fully 12/23/98 NAP 01/01/14
Amortizing
238 0.0625% Fixed 30/360 Fully 07/23/98 NAP 08/01/13
Amortizing
239 0.0625% Fixed Actual/360 Balloon 06/04/98 NAP 07/01/08
----------------------------------
Footnotes: (c) Original Balance and First Payment Date were $2,800,000 and
2/1/00, respectively. A principal paydown of $206,949.28 occurred
on 6/30/01 following the 17th payment date of the loan, per the
original note terms.
A-2
STATED STATED
ORIGINAL TERM ORIGINAL REMAINING TERM REMAINING
CONTROL MONTHLY DEBT TO MATURITY / AMORTIZATION TO MATURITY / AMORTIZATION
NUMBER LOAN / PROPERTY NAME SERVICE PAYMENT ARD (MONTHS) TERM (MONTHS) ARD (MONTHS) TERM (MONTHS)
107 The Marketplace at Palmdale 177,799.49 180 180 175 175
116 0000 Xxxxxxxx Xxxxxxxxx 98,588.07 120 360 109 349
123 Spring Creek Apartments 66,396.76 84 360 84 360
140 Agilent Technologies Building 52,678.97 120 300 117 297
000 Xxxxxxx Xxxxx Industrial 22,806.57 120 360 120 360
148 Xxxxxxxx Industrial 19,014.35 120 360 120 360
000 Xxxxxxx Xxxxx Xxxxxx 41,888.98 120 360 118 358
000 Xxxxxxx Xxxx Xxxxx 37,433.27 120 360 119 359
166 Promenade At Temecula 39,814.55 180 180 177 177
179 Westland Shopping Center 28,827.35 120 300 116 296
000 Xxxxxxxx Xxxx Xxxxx 23,413.98 60 360 56 356
186 Santorini at the Park Apartments 20,326.26 120 360 120 360
195 Uinta Golf and Ihop Pad Site 19,887.08 120 360 107 347
198 Ventura Commerce Center II 21,331.46 102 342 97 337
199 Willowbrook II 18,198.08 120 360 115 355
201 0000 Xxx Xxxxx Xxxxxx Xxxx 16,611.03 120 300 120 300
203 Spring Mill Apartments 14,917.76 120 360 120 360
000 Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx 17,900.55 120 300 93 273
000 Xxxx Xxxxxx Xxxx Xxxxxxxxxx Xxxx - 16,428.17 120 360 106 346
Phase 2
211 National Tour Building 12,800.30 120 360 115 355
215 Aspen Apartments 11,556.82 120 300 120 300
000 Xxxxxxxx Xxxxxxx Apartments 9,728.98 120 360 119 359
218 Cimmaron Professional Plaza 9,685.88 120 360 120 360
219 California Creations Building 10,370.47 120 360 96 336
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxxx / Xxxxx Xxxxx 9,791.64 120 300 84 264
Portfolio
000x Xxxxxxxxx Xxxxxx
000x Xxxxx Xxxxx Shopping Center
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx Apartments 11,026.75 180 180 180 180
------------------------------------------------------------------------------------------------------------------------------------
225 2380 Wycliff / 970 Xxxxxxx 9,947.65 180 300 132 252
Portfolio
225a 0000 Xxxxxxx Xxxxxx
225b 000 Xxxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
226 Greenbrier Apartments II 6,972.43 120 360 119 359
000 Xxxxxxxxxx Apartments III 6,972.43 120 360 119 359
000 Xxxxxxxxxx Apartments I 6,952.98 120 360 119 359
230 Rite Aid Drugstore 7,035.93 120 300 81 261
231 000-00 000xx Xxxxxx 6,709.58 120 300 84 264
232 00000-00000 Xxxxx Xxxxxx 6,109.02 120 300 100 280
233 0000 Xxxxxxx Xxxxx 4,819.11 120 300 83 263
000 Xxxx Xxxxx Xxxxxx Xxxxxxxx 5,562.25 120 240 81 201
235 Linden Hills Co-op Grocery Store 6,062.33 192 192 155 155
236 Goodyear/Wenco Building 5,768.81 180 180 145 145
238 WMC International Industrial 5,087.78 180 180 140 140
Building
239 Desert Club Apartments 2,651.35 120 300 79 259
CONTROL CUT-OFF DATE LOAN BALANCE AT
NUMBER PRINCIPAL BALANCE MATURITY / ARD
107 19,194,866.02 -
116 13,408,094.44 12,053,630.71
123 9,880,000.00 9,108,742.42
140 7,037,629.03 5,751,579.17
147 3,428,000.00 2,989,139.16
148 2,858,000.00 2,492,111.19
150 6,042,061.74 5,330,649.35
154 5,196,366.73 4,626,653.04
166 4,334,061.70 -
179 3,686,246.43 3,059,080.13
182 3,291,822.39 3,148,694.18
186 3,150,000.00 2,724,654.18
195 2,605,858.45 2,365,356.06
198 2,549,519.70 2,101,618.92
199 2,542,476.46 2,264,753.66
201 2,325,000.00 1,866,430.22
203 2,300,000.00 1,992,142.77
204 2,218,183.15 1,890,306.23
206 2,101,733.12 1,919,272.70
211 1,779,805.17 1,587,274.69
215 1,650,000.00 1,315,525.46
216 1,498,708.52 1,299,087.74
218 1,450,000.00 1,265,702.49
219 1,379,840.45 1,255,319.37
---------------------------------------------
221 1,269,066.77 1,076,339.49
221a
221b
---------------------------------------------
224 1,250,000.00 -
---------------------------------------------
225 1,228,688.29 861,672.39
225a
225b
---------------------------------------------
226 1,074,074.45 931,013.85
227 1,074,074.45 931,013.85
228 1,071,077.02 928,414.31
230 949,302.05 798,682.08
231 862,653.89 733,284.27
232 727,094.11 623,672.32
233 626,169.43 531,201.42
234 625,758.41 472,739.24
235 610,625.90 -
236 554,727.81 -
238 463,273.63 -
239 329,468.12 284,079.13
A-3
YIELD YIELD
MAINTENANCE MAINTENANCE PREPAYMENT PREPAYMENT
CONTROL DEFEASEANCE DEFEASEANCE PERIOD PERIOD END PENALTY START PENALTY END
NUMBER LOAN / PROPERTY NAME START DATE END DATE START DATE DATE DATE DATE
107 The Marketplace at Palmdale 08/01/04 03/31/16 NAP NAP NAP NAP
116 0000 Xxxxxxxx Xxxxxxxxx 02/01/05 09/30/10 NAP NAP NAP NAP
000 Xxxxxx Xxxxx Apartments 01/01/05 09/30/08 NAP NAP NAP NAP
140 Agilent Technologies Building 10/01/04 05/31/11 NAP NAP NAP NAP
000 Xxxxxxx Xxxxx Industrial 01/01/05 09/30/11 NAP NAP NAP NAP
148 Xxxxxxxx Industrial 01/01/05 09/30/11 NAP NAP NAP NAP
000 Xxxxxxx Xxxxx Xxxxxx 11/01/04 06/30/11 NAP NAP NAP NAP
000 Xxxxxxx Xxxx Plaza 12/01/04 07/31/11 NAP NAP NAP NAP
166 Promenade At Temecula 10/01/04 05/31/16 NAP NAP NAP NAP
179 Westland Shopping Center NAP NAP 08/01/06 04/30/11 NAP NAP
000 Xxxxxxxx Xxxx Xxxxx 09/01/04 04/30/06 NAP NAP NAP NAP
186 Santorini at the Park 01/01/05 08/31/11 NAP NAP NAP NAP
Apartments
195 Uinta Golf and Ihop Pad Site 01/01/04 07/31/10 NAP NAP NAP NAP
198 Ventura Commerce Center II 02/01/05 12/31/09 NAP NAP NAP NAP
199 Willowbrook II 08/01/04 03/31/11 NAP NAP NAP NAP
201 0000 Xxx Xxxxx Xxxxxx Xxxx 01/01/05 09/30/11 NAP NAP NAP NAP
203 Spring Mill Apartments 01/01/05 09/30/11 NAP NAP NAP NAP
000 Xxxxxxx Xxxxxx Shopping NAP NAP 09/01/04 05/31/09 NAP NAP
Center
206 West Little York Industrial 11/01/05 06/30/10 NAP NAP NAP NAP
Park - Phase 2
211 National Tour Building 08/01/04 03/31/11 NAP NAP NAP NAP
215 Aspen Apartments 01/01/05 08/31/11 NAP NAP NAP NAP
000 Xxxxxxxx Xxxxxxx Apartments 12/01/04 08/31/11 NAP NAP NAP NAP
218 Cimmaron Professional Plaza 01/01/05 08/31/11 NAP NAP NAP NAP
219 California Creations Building NAP NAP 12/01/02 08/31/09 NAP NAP
-----------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxxx / Xxxxx NAP NAP 12/01/03 08/31/08 NAP NAP
Plaza Portfolio
000x Xxxxxxxxx Xxxxxx
000x Xxxxx Xxxxx Xxxxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx Apartments 01/01/05 09/30/16 NAP NAP NAP NAP
-----------------------------------------------------------------------------------------------------------------------------------
225 2380 Wycliff / 970 Xxxxxxx NAP NAP 12/01/02 05/31/12 NAP NAP
Portfolio
225a 0000 Xxxxxxx Xxxxxx
225b 000 Xxxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
226 Greenbrier Apartments II 12/01/04 08/31/11 NAP NAP NAP NAP
000 Xxxxxxxxxx Apartments III 12/01/04 08/31/11 NAP NAP NAP NAP
000 Xxxxxxxxxx Apartments I 12/01/04 08/31/11 NAP NAP NAP NAP
230 Rite Aid Drugstore NAP NAP 09/01/03 02/29/08 NAP NAP
231 167-55 148th Avenue NAP NAP 12/01/03 09/30/08 NAP NAP
232 16249-16259 Stagg Street NAP NAP 04/01/05 12/31/09 NAP NAP
233 0000 Xxxxxxx Xxxxx NAP NAP 11/01/03 08/31/08 NAP NAP
234 Toll House Office Building NAP NAP 09/01/03 03/31/08 NAP NAP
000 Xxxxxx Xxxxx Co-op Grocery NAP NAP 11/01/03 07/31/14 NAP NAP
Store
236 Goodyear/Wenco Building NAP NAP 01/01/04 09/30/13 NAP NAP
238 WMC International Industrial NAP NAP 08/01/03 05/31/13 NAP NAP
Building
239 Desert Club Apartments NAP NAP 07/01/03 01/31/08 NAP NAP
YIELD
MAINTENANCE
YIELD INTEREST RATE YIELD
MAINTENANCE YIELD CONVERTED MAINTENANCE
CONTROL CALCULATION MAINTENANCE TO MONTHLY INTEREST RATE
NUMBER METHOD INTEREST RATE MORTGAGE RATE REFERENCE DATE
107 NAP NAP NAP NAP
116 NAP NAP NAP NAP
123 NAP NAP NAP NAP
140 NAP NAP NAP NAP
147 NAP NAP NAP NAP
148 NAP NAP NAP NAP
150 NAP NAP NAP NAP
154 NAP NAP NAP NAP
166 NAP NAP NAP NAP
179 Type 2 Treasury Flat No Weighted Average Life
182 NAP NAP NAP NAP
186 NAP NAP NAP NAP
195 NAP NAP NAP NAP
198 NAP NAP NAP NAP
199 NAP NAP NAP NAP
201 NAP NAP NAP NAP
203 NAP NAP NAP NAP
204 Type 2 Treasury Flat No Weighted Average Life
206 NAP NAP NAP NAP
211 NAP NAP NAP NAP
215 NAP NAP NAP NAP
216 NAP NAP NAP NAP
218 NAP NAP NAP NAP
219 Type 2 Treasury Flat No Weighted Average Life
-------------------------------------------------------------------------------
221 Type 2 Treasury Flat No Weighted Average Life
221a
221b
-------------------------------------------------------------------------------
224 NAP NAP NAP NAP
-------------------------------------------------------------------------------
225 Type 2 Treasury Flat No Weighted Average Life
225a
225b
-------------------------------------------------------------------------------
226 NAP NAP NAP NAP
227 NAP NAP NAP NAP
228 NAP NAP NAP NAP
230 Type 2 Treasury Flat No Weighted Average Life
231 Type 2 Treasury Flat No Weighted Average Life
232 Type 2 Treasury Flat No Weighted Average Life
233 Type 2 Treasury Flat No Weighted Average Life
234 Type 2 Treasury Flat No Weighted Average Life
235 Type 2 Treasury Flat No Weighted Average Life
236 Type 2 Treasury Flat No Weighted Average Life
238 Type 3 Treasury Flat Yes Maturity
239 Type 3 Treasury Flat Yes Maturity
A-4
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
herein below 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 October 22, 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 Property securing any Mortgage Loan has
been noticed or commenced. As of the date of the
C-3
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, provided that, partial releases
of such funds in accordance with the applicable Mortgage Loan Documents may have
occurred.
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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 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,
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(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 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.
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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 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
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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, Moody's 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 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
C-8
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 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,
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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 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);
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(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 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.
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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 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
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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 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
C-13
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 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.
C-14
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.
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
C-15
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 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.
C-16
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.
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
C-17
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.
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
C-18
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 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
C-19
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.
C-20
SCHEDULE C-6
Loan Number Loan Name Description of Exception
----------- --------------------------- ----------------------------------------------------
010-688 The Marketplace at Palmdale Amendment to Agreement Regarding Letter of Credit
accomplishes, among other things, the following: (i)
sets forth the conditions upon which the required
amount of such letter of credit may be reduced; (ii)
eliminates the Tenant Improvement and Leasing
Commission Reserve and Security Agreement; and (iii)
modifies the conditions whereby the lender is
entitled to draw upon the letter of credit.
C-6-1
SCHEDULE C-8
Loan Number Loan Name Description of Exception
----------- --------------------------- ----------------------------------------------------
010-284 Desert Club Apartments Access endorsement unavailable in Arizona.
010-329 WMC International Industrial Access endorsement unavailable in Arizona.
Building
010-376 167-55 148th Ave. Access endorsement unavailable in New York.
010-633 West Little York Industrial Access endorsement unavailable in Texas.
Park - Phase 2
010-652 Westland Shopping Center Access endorsement unavailable in Texas.
010-706 Willowbrook II Access endorsement unavailable in Texas.
010-404 Goodyear/Wenco Building Same as survey endorsement not obtained, although
the area shown on the survey is the same as the
property legally described in the related mortgage.
C-8-1
SCHEDULE C-12
Loan Number Loan Name Description of Exception
----------- --------------------------- ----------------------------------------------------
010-115 2380 Wycliff & 970 Xxxxxxx The related environmental report is dated November
4, 1997, which is more than twelve months prior to
the closing date.
010-256 Toll House Office Building The related environmental report is dated May 22,
1998, which is more than twelve months prior to the
closing date.
010-284 Desert Club Apartments The related environmental report is dated April 28,
1998, which is more than twelve months prior to the
closing date.
010-329 WMC International Industrial The related environmental report is dated June 2,
Building 2000, which is more than twelve months prior to the
closing date.
010-332 0000 Xxxxxxx Xxxxx The related environmental report is dated August
26, 1998, which is more than twelve months prior to
the closing date.
010-352 Rite Aid Drugstore The related environmental report is dated July 23,
1998, which is more than twelve months prior to the
closing date.
010-376 167-55 148th Ave. The related environmental report is dated July 14,
1998, which is more than twelve months prior to the
closing date.
000-000 Xxxxxxxxx Xxxxxx/Xxxxx Xxxxx The related environmental report is dated August
25, 1998, which is more than twelve months prior to
the closing date.
000-000 Xxxxxxx Xxxxxx Shopping Center The related environmental report is dated May 28,
1999, which is more than twelve months prior to the
closing date.
010-511 16249-16259 Stagg Street The related environmental report is dated May 3,
2000, which is more than twelve months prior to the
closing date.
010-538 California Creations Building The related environmental report is dated August
13, 1999, which is more than twelve months prior to
the closing date.
010-547 Ventura Commerce Center II The related environmental report is dated September
20, 1999, which is more than twelve months prior to
the closing date.
010-633 West Little York Industrial The related environmental report is dated August
Park - Phase 2 11, 2000, which is more than twelve months prior to
the closing date.
010-639 Uinta Gold and Ihop pad store The related environmental report is dated September
15, 2000, which is more than twelve months prior to
the closing date.
C-12-1
SCHEDULE C-14
Loan Number Loan Name Description of Exception
----------- --------------------------- ----------------------------------------------------
010-511 16249-16259 Stagg Street The mortgaged property is located in California and
has a PML of 22%. Earthquake insurance was not
required by the lender because the appraised value
of the land ($1,110,000.00) exceeds the cut-off date
principal balance of the loan ($727,094.00).
010-659 0000 Xxxxxxxx Xxxx. A seismic risk analysis was prepared by Surveys,
Inc. at the time of origination, which revealed that
of those buildings that suffered some damage from
the Northridge earthquake, only a few had hairline
cracks in their weld joints. Consequently, there is
only a small probability that the mortgaged property
would have this problem. Surveys, Inc. estimated the
475-year, 90% PML for the subject property at 23%.
Earthquake insurance coverage was required and was
provided by the borrower. The borrower commissioned
an engineering company to prepare a comprehensive
seismic evaluation of the mortgaged property,
including the inspection of weld joints discussed
above. Lender agreed to drop the requirement for
earthquake insurance coverage, provided that the
investigation results were acceptable to Survey's
Inc. and provided that the results allowed Survey's
Inc. to lower its determination of the 475-year, 90%
PML to 20% or less.
Xxxxxxx Laboratories conducted a visual, magnetic
particle, and/or ultrasonic inspection of 83 moment
frame connections within the mortgaged property on
September 15th through September 18th, 2001. Their
"earthquake Damage Investigation - Moment
Connections" report revealed no damage to the weld
joints as a result of previous seismic activity.
After a review of this report, Survey's Inc. lowered
the PML on the mortgaged property to 19%. As a
result, the lender approved the Borrower's request
to drop earthquake insurance coverage on the
mortgaged property.
C-14-1
SCHEDULE C-31
Loan Number Loan Name Description of Exception
----------- --------------------------- ----------------------------------------------------
010-538 California Creations Building The mortgaged property was most recently inspected
on September 8, 2000, which is more than twelve (12)
months from the Closing Date.
010-659 0000 Xxxxxxxx Xxxx. The mortgaged property was most recently inspected
on November 8, 2000, which is more than twelve (12)
months from the Closing Date.
C-31-1
SCHEDULE C-34
Loan Number Loan Name Description of Exception
----------- --------------------------- ----------------------------------------------------
010-688 The Marketplace at Palmdale There is no independent member or director, and
therefore, any dissolution, winding-up or insolvency
filing requires the unanimous consent of the members
of the borrower, but not the consent of an
independent member or director.
C-34-1
SCHEDULE C-36
Loan Number Loan Name Description of Exception
----------- --------------------------- ----------------------------------------------------
010-652 Westland Shopping Center The mortgaged property consists of 3.03 acres within
a tax lot that is currently 13.36 acres. It is an
event of default under the loan documents should a
separation not be effective on or before January 1,
2002. Prior to such separation, the lender has the
right to escrow taxes on the entire tax parcel.
C-36-1
SCHEDULE C-43
Loan Number Loan Name Description of Exception
----------- --------------------------- ----------------------------------------------------
010-115 2380 Wycliff & 970 Xxxxxxx The loan is full recourse.
010-538 The California Creations The loan is full recourse.
Building
010-329 WMC International Industrial The loan is full recourse.
Building
010-749 Xxxxxxxx Industrial The guarantor of the non-recourse carveouts (The
Xxxxxxx Companies) is not an individual, but has a
net worth of over $84,000,000.00.
000-000 Xxxxxxx Xxxxx Industrial The guarantor of the non-recourse carveouts (The
Xxxxxxx Companies) is not an individual, but has a
net worth of over $84,000,000.00.
010-693 Temecula Retail Neither the borrower or the guarantor is liable for
losses incurred by the holder of the mortgaged loan
by reason of violation of environmental laws or
breaches of environmental covenants. However, both
the borrower and the guarantor signed the
environmental indemnity agreement.
C-43-1
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 ARTESIA MORTGAGE CAPITAL CORPORATION
I, ______________________, hereby certify that I am a duly
elected and acting Assistant Secretary of Artesia Mortgage Capital Corporation
(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 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 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 ARTESIA MORTGAGE CAPITAL CORPORATION
In connection with the execution and delivery by Artesia
Mortgage Capital Corporation (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.
ARTESIA MORTGAGE CAPITAL CORPORATION
By:________________________________________________
Name:
Title:
D-2-1
EXHIBIT D-3A
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX,
SPECIAL COUNSEL TO THE SELLER
D-3A-1
[SIDLEY XXXXXX XXXXX & XXXX LETTERHEAD]
December 27, 2001
Artesia Mortgage Capital Corporation First Union Securities, Inc.
0000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 000 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Salomon Brothers Mortgage Standard & Poor's Ratings Services
Securities VII, Inc. 00 Xxxxx Xxxxxx, 00xx Xxxxx
000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx Inc. Moody's Investors Service, Inc.
000 Xxxxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Greenwich Capital Markets, Inc. Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation X.X. Xxxxxx Securities Inc.
00 Xxxxxxx Xxxxxx 000 Xxxx Xxxxxx, 0xx 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 Artesia Mortgage Capital
Corporation ("AMCC") 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
AMCC, as seller, and Salomon Brothers Mortgage Securities VII, Inc. ("SBMS
VII"), as purchaser, and that certain Indemnification Agreement referred to
therein (the "Indemnification Agreement"; and, together with the Mortgage Loan
Purchase Agreement, the "AMCC Agreements").
SIDLEY XXXXXX XXXXX & XXXX NEW YORK
December 27, 2001
Page 2
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. For purposes of this
opinion letter, we make reference to that certain letter, dated as of December
18, 2001 (the "Artesia BC Support Letter"), from Artesia Banking Corporation
("Artesia BC") to SBMS VII and Xxxxx Fargo Bank Minnesota, N.A., as trustee,
relating to AMCC's obligations under the Mortgage Loan Purchase Agreement.
For the purposes of this opinion letter, we have reviewed the
AMCC Agreements and the Artesia BC Support Letter (collectively, the
"Agreements"). 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 Agreements 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 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) except as expressly addressed in opinion paragraph 1 below, the due
organization of the parties to each of the Agreements 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 paragraphs 1 and 4
below, the power and authority of the parties to each of the Agreements to enter
into, perform under and consummate the transactions contemplated by such
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) except as expressly addressed by opinion paragraph 2 below, the
due authorization by all necessary action, and the due execution and delivery,
of each of the Agreements by the parties thereto, (ix) except as expressly
addressed in opinion paragraphs 3 and 6 below, 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, and (x) the absence
of any other agreement that supplements or otherwise modifies the express
provisions of the Agreements.
When used in this opinion, the term "knowledge" and words of
similar import mean that the Sidley Xxxxxx Xxxxx & Xxxx attorneys currently
practicing law with this firm who have been actively involved in representing
AMCC in connection with any matters relating to the transaction contemplated by
the AMCC Agreements, have no current conscious awareness
SIDLEY XXXXXX XXXXX & XXXX NEW YORK
December 27, 2001
Page 3
of any contrary facts or information. In that regard, we have conducted no
special or independent investigation of factual matters in connection with this
opinion letter.
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, the General Corporation Law of the State of Delaware 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 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:
SIDLEY XXXXXX XXXXX & XXXX NEW YORK
December 27, 2001
Page 2
1. AMCC is validly existing as a corporation in good standing
under the laws of the State of Delaware and has the requisite corporate
power and authority to enter into and perform its obligations under the
AMCC Agreements.
2. Each AMCC Agreement has been duly authorized, executed and
delivered by AMCC.
3. The Mortgage Loan Purchase Agreement constitutes a valid,
legal and binding agreement of AMCC, enforceable against AMCC in
accordance with its terms.
4. The execution, delivery and performance of the AMCC
Agreements by AMCC will not conflict with or result in a violation of
any term or provision of the certificate of incorporation or by-laws of
AMCC or 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 AMCC Agreements.
5. To our knowledge, no consent, approval, authorization or
order of any federal or State of New York court, agency or other
governmental body is required for the consummation by AMCC of the
transactions contemplated by the terms of the AMCC Agreements.
6. The Artesia BC Support Letter constitutes a valid, legal
and binding agreement of Artesia BC, enforceable against Artesia BC in
accordance with its terms.
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 AMCC Agreements. 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.
Very truly yours,
EXHIBIT D-3B
FORM OF LETTER RELATING
TO DISCLOSURE FROM SIDLEY XXXXXX XXXXX & XXXX,
SPECIAL COUNSEL TO THE SELLER
D-3B-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,
