Exhibit 99.3
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement") is dated and
effective as of September 17, 2002 between Column Financial, Inc. ("Column"), 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
Column 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.
A real estate mortgage investment conduit ("REMIC") election
has been made with respect to one (1) Mortgage Loan (the resulting REMIC being
herein referred to as a "Loan REMIC"), for federal income tax purposes. Column
also 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 regular interest (the "Loan REMIC Regular Interest") and
residual interest (the "Loan REMIC Residual Interest"; and, collectively with
the Loan REMIC Regular Interest, the "Loan REMIC Interests") in the Loan REMICs.
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") and the Loan REMIC Interests. 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 September 11, 2002 (the
"Pooling and Servicing Agreement"), among SBMS VII as depositor, KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage as master servicer
(the "Master Servicer"), ARCap Special Servicing, Inc. as special servicer (the
"Special Servicer") and Xxxxx Fargo Bank Minnesota, N.A. as trustee (the
"Trustee"). 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 and the Loan
REMIC Interests to the Trust contemporaneously with its purchase of the Mortgage
Loans and the Loan REMIC Interests hereunder.
The Depositor will acquire certain of the Other Loans from Salomon
Brothers Realty Corp. and KeyBank National Association (together, the "Other
Loan Sellers").
SBMS VII intends to sell the Registered Certificates to Xxxxxxx Xxxxx
Xxxxxx Inc. ("SSBI"), Credit Suisse First Boston Corporation ("CSFB"), McDonald
Investments, Inc. ("MII") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"; and, SSBI, CSFB, MII and Xxxxxxx Xxxxx collectively in such
capacity, the "Underwriters"), pursuant to an underwriting agreement, dated as
of September 17, 2002 (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 September 17, 2002 (the "Certificate Purchase
Agreement"), between SBMS VII and SSBI. The Registered Certificates are more
fully described in the prospectus dated September 3, 2002 (the "Basic
Prospectus"); and the supplement to the Basic Prospectus dated September 17,
2002 (the "Prospectus Supplement"; and, together with the Basic Prospectus, the
"Prospectus"), as each may be amended or supplemented at any time hereafter.
Certain classes of the Non-Registered Certificates are more fully described in
the offering memorandum dated September 17, 2002 (the "Memorandum"), as it may
be amended or supplemented at any time hereafter.
Column will indemnify SBMS VII, SSBI, MII, CSFB, Xxxxxxx Xxxxx and
certain related parties with respect to the disclosure regarding the Mortgage
Loans and Column 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 September 17, 2002 (the
"Indemnification Agreement"), among Column, SBMS VII, SSBI, MII, CSFB and
Xxxxxxx Xxxxx.
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 and the
Loan REMIC Interests. The purchase and sale of the Mortgage Loans and the Loan
REMIC Interests shall take place on September 26, 2002, 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 September 2002
(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 $Column: 135,121,108, subject to a variance of plus
or minus 5%. The purchase price for the Mortgage Loans and the Loan REMIC
Interests shall be as set forth in the purchase 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 September 1,
2002 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). It is
acknowledged and agreed by both parties hereto that at the time of transfer
hereunder the Mortgage Loans will be subject to
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certain servicing rights separately sold by the Seller to the Master Servicer
and/or parties that will act as Sub-Servicers under the Pooling and Servicing
Agreement on behalf of the Master Servicer.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all of the right, title and interest of the Seller in and to the
Mortgage Loans and any and all related Loan REMIC Interests, including all
interest and principal received on or with respect to the Mortgage Loans and any
and all related Loan REMIC Interests after the Cut-off Date (other than
scheduled payments of interest and principal due on or before the Cut-off Date),
together with all of the right, title and interest of the Seller in and to the
proceeds of any related title, hazard or other insurance policies and any
escrow, reserve or other comparable accounts related to the Mortgage Loans.
(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) No later than the Closing Date, 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 Mortgage File and any Additional Collateral (other
than reserve funds and escrow payments) with respect to each Mortgage Loan (as
such Mortgage File and Additional Collateral exist or, in the case of such
Mortgage File, should exist in accordance with the definition thereof in the
Pooling and Servicing Agreement, as of the Closing Date). In addition, with
respect to each Mortgage Loan as to which any such Additional Collateral is in
the form of a Letter of Credit as of the Closing Date, the Seller shall cause to
be prepared, executed and delivered to the issuer of each such Letter of Credit
such notices, assignments and acknowledgments as are required under such Letter
of Credit to assign, without recourse, to, and vest in, the Trustee the Seller's
rights as the beneficiary thereof and drawing party thereunder. Unless the
Purchaser provides the Seller with written instructions to the contrary prior to
the Closing Date, the designated recipient of the items described in the second
preceding sentence shall be the Custodian, and the designated beneficiary under
each Letter of Credit referred to in the preceding sentence shall be the
Trustee.
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 for any Mortgage Loan 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 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, within 10 days
following (or, in the case of the reserve
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funds and escrow payments referred to in clause (ii) of this sentence, no later
than) the Closing Date, deliver to and deposit with, or cause to be delivered to
and deposited with, the Purchaser or its designee, each of the following items
that are in the possession or under the control of the Seller and that relate to
the Mortgage Loans (except to the extent that any of the following items are to
be retained by a subservicer that will continue to act on behalf of the
Purchaser or its designee): (i) originals or copies of all property-specific
financial statements, appraisals, environmental/engineering reports, transaction
screens, leases, rent rolls, third-party underwriting reports, insurance
policies, legal opinions, property management agreements, tenant estoppels,
subordination and non-disturbance agreements, and any other documents that the
Purchaser or its servicing agent reasonably deems necessary to service the
subject Mortgage Loan and specifies to the Seller in writing and, to the extent
they are not required to be a part of a Mortgage File for any Mortgage Loan,
originals or copies of all documents, certificates and opinions that were
delivered by or on behalf of the related Borrowers in connection with the
origination of the Mortgage Loans (provided that the Seller shall not be
required to deliver any attorney-client privileged communication or any
documents or materials prepared by the Seller or its affiliates solely for
internal uses); (ii) all unapplied reserve funds and escrow payments; and (iii)
a limited power of attorney from the Seller enabling the Purchaser or its
designee to effect the recordation of documents contemplated by Section 2(d).
Unless the Purchaser provides the Seller with written instructions to the
contrary prior to the Closing Date, the designated recipient of the items
described in clauses (i) and (ii) of the preceding sentence shall be the
applicable Master Servicer.
Notwithstanding the foregoing, if the Seller is unable to deliver any
Letter of Credit constituting Additional Collateral for any Mortgage Loan, then
the Seller may, in lieu thereof, deliver on behalf of the related Borrower, to
be used for the same purposes as such missing Letter of Credit either: (i) a
substitute letter of credit substantially comparable to, but in all cases in the
same amount and with the same draw conditions and renewal rights as, that Letter
of Credit and issued by an obligor that meets any criteria in the related
Mortgage Loan Documents applicable to the issuer of that Letter of Credit; or
(ii) a cash reserve in an amount equal to the amount of that Letter of Credit.
For purposes of the delivery requirements of this Section 2(c), any such
substitute letter of credit shall be deemed to be Additional Collateral of the
type covered by the first paragraph of this Section 2(c) and any such cash
reserve shall be deemed to be reserve funds of the type covered by the third
paragraph of this Section 2(c).
In connection with the foregoing paragraphs of this Section 2(c), the
Seller is a designated recipient, or shall otherwise be the beneficiary, of all
certifications relating to the Mortgage Loans made and/or delivered by the
Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the Pooling and
Servicing Agreement.
(d) The Seller shall be responsible for all reasonable fees and
out-of-pocket 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. 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
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preparation of a substitute therefor or cure such defect, as the case may be;
provided that the cost of such preparation shall be borne by the Purchaser if
the loss or return is caused by the Purchaser's negligence.
(e) Under generally accepted accounting principles ("GAAP"), the Seller
shall report its transfer of the Mortgage Loans and the Loan REMIC Interests 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 (including, without
limitation, financial and accounting records) to reflect such transfer as a sale
(as opposed to a secured loan) and to reflect that the Mortgage Loans and the
Loan REMIC Interests are no longer property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans and the Loan REMIC
Interests to the Purchaser, as provided herein, the Seller shall not take any
action inconsistent with the Purchaser's ownership of the Mortgage Loans and the
Loan REMIC Interests. 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 before the Closing Date,
take all actions required under applicable law to effectuate the transfer of the
Mortgage Loans and the Loan REMIC Interests by the Seller to the Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to time,
shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
(h) 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 data is available) contemplated by the Loan Set-up
File, the Loan Periodic Update File, the Operating Statement Analysis Report and
the Property File.
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 and the Loan REMIC, that may be undertaken by or on behalf of the
Purchaser on or prior to the Closing Date. 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 and the Loan REMIC, 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.
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SECTION 4. Representations, Warranties and Covenants of the Seller and
the Purchaser.
(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-1. The Purchaser hereby makes, as of the Closing Date, to and for the
benefit of the Seller, each of the representations and warranties set forth in
Exhibit B-2.
(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, with respect to each Mortgage Loan, each of
the representations and warranties set forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of SBMS VII only, that the Seller has not dealt with any
broker, investment banker, agent or other person (other than SBMS VII, SSBI,
MII, CSFB and Xxxxxxx Xxxxx) who may be entitled to any commission or
compensation in connection with the sale to the Purchaser of the Mortgage Loans
and the Loan REMIC Interests.
(d) It is understood and agreed that the representations and warranties set
forth in and/or made pursuant to 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 5. Notice of Breach; Cure and Repurchase.
(a) The Purchaser or its designee shall provide the Seller with written
notice of any Material Breach or Material Document Defect with respect to any
Mortgage Loan. Within 90 days of the earlier of discovery or receipt (including,
without limitation, from any party to the Pooling and Servicing Agreement) of
written notice by the Seller that there has been a Material Breach or Material
Document Defect with respect to any Mortgage Loan (or, if such Material Breach
or Material Document Defect, as the case may be, relates to whether such
Mortgage Loan is or, as of the Closing Date, was a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (a "Qualified Mortgage"), and
provided that the Seller received prompt written notice thereof, within 90 days
after any earlier discovery by any party to the Pooling and Servicing Agreement
of such Material Breach or Material Document Defect, as the case may be) (such
90-day period, in any case, the "Initial Resolution Period"), the Seller shall,
subject to Section 5(b) below, (i) correct or cure such Material Breach or
Material Document Defect, as the case may be, in all material respects or (ii)
repurchase the Mortgage Loan affected by such Material Breach or Material
Document Defect, as the case may be (such Mortgage Loan, a "Defective Mortgage
Loan"), at the related Purchase Price, with payment to be made in accordance
with the reasonable directions of the Purchaser; provided that, if the Seller
shall have delivered to the Purchaser a certification executed on behalf of the
Seller by an officer thereof stating (i) that such Material Breach or Material
Document Defect, as the case may be, does not relate to whether the Defective
Mortgage Loan is or, as of the Closing Date, was a Qualified Mortgage, (ii) that
such Material Breach or Material Document Defect, as the case may be, is
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capable of being cured but not within the applicable Initial Resolution Period,
(iii) that 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, (iv) what actions the Seller is
pursuing in connection with the cure thereof and (v) that the Seller anticipates
that such Material Breach or Material Document Defect, as the case may be, will
be cured within an additional period not to exceed 90 more days, then the Seller
shall have an additional 90 days following the end of the Initial Resolution
Period (such additional 90-day period, the "Resolution Extension Period") to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan;
and, provided, further, that the delivery of the foregoing certification in
connection with, and/or any attempt by the Seller to cure, any alleged Breach or
Document Defect shall not be deemed an admission on the part of the Seller that
such alleged Breach or Document Defect is, in fact, a Breach or Document Defect,
as the case may be, or more particularly, that it is a Material Breach or
Material Document Defect, as the case may be. Any such repurchase of a Defective
Mortgage Loan shall be on a whole loan, servicing released basis. The Seller
shall have no obligation to monitor the Mortgage Loans regarding the existence
of a Material Breach or Material Document Defect, but if the Seller discovers a
Material Breach or Material Document Defect with respect to any Mortgage Loan,
it will notify the Purchaser.
If the Seller or any Affiliate thereof is obligated to purchase the
Westfarms Mall Pari Passu Mortgage Loan from the Series 2002-CP3 Trust by reason
of a breach of representation or warranty or by reason of missing or defective
loan documentation, then: (i) the Westfarms Mall Mortgage Loan shall be deemed
to be a defective Mortgage Loan, and (ii) the Seller shall, contemporaneously
with its or its Affiliate's purchase of the Westfarms Mall Pari Passu Mortgage
Loan from the Series 2002-CP3 Trust, repurchase the Westfarms Mall Mortgage
Loan, at the related Purchase Price, with payment to be made in accordance with
the reasonable directions of the Purchaser.
The Seller acknowledges the rights of the applicable Master Servicer
and Special Servicer under Section 2.03 of the Pooling and Servicing Agreement
to enforce the repurchase obligations of the Seller under this Section 5(a), on
behalf of the Trustee for the benefit of the Certificateholders.
In connection with the repurchase of any Mortgage Loan held by a Loan
REMIC, pursuant to this Section 5(a), the Purchaser shall effect a "qualified
liquidation" of such Loan REMIC in accordance with the REMIC Provisions.
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 such Mortgage Loan and shall forward such amended schedule to the
Purchaser.
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 remedies provided for in this Section 5(a) with respect to any
Material Breach or Material Document Defect as to any Mortgage Loan shall also
apply to any related REO Property. If (i) the Seller disputes its obligation to
cure any alleged Breach or Document Defect or to repurchase the related Mortgage
Loan, (ii) the related
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Mortgage Loan or any related REO Property is liquidated prior to the resolution
of that dispute and (iii) 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 payments, Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds and/or other amounts received upon such
liquidation (such payment to be deemed as payment of the remaining unpaid
portion of the applicable Purchase Price in connection with a repurchase).
(b) It shall be a condition to any repurchase of a Defective Mortgage
Loan by the Seller pursuant to Section 5(a) that the Purchaser (which shall
include the Trustee) 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 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.
(c) It is understood and agreed that, subject to Section 5(d), the
obligations of the Seller set forth in this Section 5 to cure a Material Breach
or a Material Document Defect, or to repurchase the related Defective Mortgage
Loan(s), constitute the sole remedies available to the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders with
respect to a Breach or Document Defect in respect of any Mortgage Loan; provided
that there is no limitation on the part of the Purchaser, the Certificateholders
or the Trustee on behalf of the Certificateholders, or any person or entity
acting on its or their behalf, with regard to enforcing such repurchase
obligations or suing for damages in the event of a breach of such repurchase
obligations.
(h) Notwithstanding the foregoing, the Seller shall deliver to the
Trustee a guarantee dated no later than the Closing Date (the "Column
Performance Guarantee") made by Credit Suisse First Boston acting through the
Cayman branch (the "Column Performance Guarantor") in favor of the Trustee,
guaranteeing full payment and performance of the repurchase obligations of the
Seller pursuant to this Section 5.
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 LLP, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
(b) The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the Seller made
pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date or, in the case of any of the
representations and warranties made pursuant to Section 4(b), such other
date as specified in Exhibit C;
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(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 commercially reasonable 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, SSBI, MII, CSFB and Xxxxxxx Xxxxx.
(c) the Pooling and Servicing Agreement duly executed and delivered by SBMS
VII, the Master Servicer, the Special Servicer and the Trustee;
(d) the Column Performance Guarantee duly executed and delivered by the
Column Performance Guarantor;
(e) 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 SBMS
VII, SSBI, MII, CSFB, Xxxxxxx Xxxxx 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;
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(f) 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 30 days prior
to the Closing Date;
(g) 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;
(h) resolutions of the Seller authorizing the specific transactions or
transactions of the type contemplated by this Agreement, which resolutions will
be in full force and effect, and will not have been rescinded, as of the Closing
Date;
(i) a written opinion of counsel for the Seller, which may be delivered by
in-house counsel, substantially in the form of Exhibit D-3A hereto (with any
modifications required by either Rating Agency), dated the Closing Date and
addressed to SBMS VII, each of the other parties to the Pooling and Servicing
Agreement and each of the other Interested Parties;
(j) a written opinion of Cadwalader, Xxxxxxxxxx & Xxxx, as special counsel
for the Seller, substantially in the form of Exhibit D-3B hereto (with any
modifications required by either Rating Agency), dated the Closing Date and
addressed to SBMS VII, each of the other parties to the Pooling and Servicing
Agreement and each of the other Interested Parties;
(k) 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);
(l) a written letter of Cadwalader, Xxxxxxxxxx & Xxxx, as special counsel
to the Seller, substantially in the form of Exhibit D-3C hereto, relating to the
disclosure in the Prospectus regarding the Mortgage Loans and Column, dated the
Closing Date and addressed to SSBI, MII, CSFB and Xxxxxxx Xxxxx;
(m) with respect to the Loan REMIC, the related Loan REMIC Declaration and
a written opinion of counsel for the Seller, addressed to the Interested
Parties, to the effect that, assuming the election required by Section 860D(b)
of the Code is properly made, such Loan REMIC will qualify for treatment as a
REMIC for federal income tax purposes;
(n) such opinions regarding the Column Performance Guarantee and the Column
Performance Guarantor as the Purchaser may reasonably request;
(o) one or more accountants' comfort letters, addressed, and in form and
substance reasonably acceptable, to SBMS VII, SSBI, MII, CSFB and Xxxxxxx Xxxxx,
relating to the information regarding the Mortgage Loans contained in the
Prospectus and Memorandum that is of a statistical nature; and
(p) such further certificates, opinions and documents as the Purchaser may
reasonably request prior to the Closing Date or any Rating Agency may require
and in a form reasonably acceptable to the Purchaser.
10
SECTION 8. Costs.
The Seller shall be responsible for any costs and expenses incurred by
either party hereto in connection with the transactions contemplated hereunder,
except to the extent that such costs and expenses are otherwise borne by the
Other Loan Sellers in accordance with the terms of that certain Term Sheet,
dated March 28, 2002 (the "Term Sheet"), between SSBI and KeyBank National
Association.
SECTION 9. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to the Purchaser at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxxxx Xxxxx, facsimile no.: 000-000-0000, or
to such other address or facsimile number as may hereafter be furnished to the
Seller in writing by the Purchaser; and, if to the Seller, addressed to the
Seller at 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000,
attention: President, 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 and the Loan REMIC Interests. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans and the Loan REMIC Interests 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 and the Loan REMIC Interests 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 and the Loan REMIC Interests 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 right, title and interest in and to the Mortgage
Loans and the Loan REMIC Interests 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 and the Loan REMIC Interests 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 under applicable law; 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 for the purpose of perfecting such security interest under
applicable law. The Seller
11
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans and the Loan REMIC Interests,
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. In
connection with the foregoing, the Seller authorizes the Purchaser to execute
and file such UCC financing statements as the Purchaser may deem necessary or
appropriate to accomplish the foregoing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans and the
Loan REMIC Interests by the Seller to the Purchaser, notwithstanding any
restrictive or qualified endorsement or assignment in respect of any Mortgage
Loan or Loan REMIC Interests.
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; CONSENT TO JURISDICTION.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND
TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE SELLER AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS
TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK
CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT,
12
THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
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 and the Loan REMIC Interests to the Trust as contemplated by the
recitals hereto, SBMS VII is expressly authorized to assign its rights and
obligations under this Agreement, in whole or in part, to the Trustee for the
benefit of the registered holders and beneficial owners of the Certificates. To
the extent of any such assignment, the Trustee (including, without limitation,
when 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, and the
Purchaser shall not agree to any such amendment that has any such effect.
13
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]
14
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.
COLUMN FINANCIAL, INC.
By:________________________________
Name:
Title:
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
By:________________________________
Name:
Title:
EXHIBIT A
Mortgage Loan Schedule
Control Loan / Property Name Loan Loan Property Address City State Zip Code Property Property
Number Number Seller Size Size Unit
Type
000 Xxxxxxxx Xxxx 10016990 Column 000 Xxxx Xxxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 432,856 SF
000 Xxxxxxxxx Xxxx (a) 10017088 Column 000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 600,148 SF
Footnotes:
--------------------------------------------
(a) Represents one of two pari passu A notes with equal Cut-off date principal balances.All LTV and DSCR statistics are calculated
based upon both A notes, which have a combined Cut-off date principal balance of $157,744,298.39.All DSCR statistics are
calculated based upon the highest Debt Service Payment shown in Annex A-3 of the Prospectus Supplement dated September 17,
2002.
Control Loan / Property Cross Cross Ownership Original Mortgage Administrative Rate Type Interest
Number Name Collater- Collater- Interest Principal Rate Fee Rate Accrual
alized alized Balance Method
(Mortgage Mortgage
Loan Group) Loan
Group
Aggregate
Cut-Off
Date
Principal
Balance
000 Xxxxxxxx Xxxx No 56,248,958 Fee in 56,400,000 6.5000% 0.0625% Fixed 30/360
part and
Leasehold
in part
105 Westfarms Mall(a) No 78,872,149 Fee Simple 79,000,000 5.8817% 0.0625% Fixed Actual/360
Control Loan Type Note Date Antici- Sched-
Number pated uled
Repayment Maturity
Date Date
102 Balloon 06/20/02 NAP 07/11/12
105 ARD 07/01/02 07/11/12 07/11/32
Footnotes:
------------------------------------
(a) Represents one of two pari passu A notes with equal Cut-off date principal balances.All LTV and DSCR statistics are calculated
based upon both A notes, which have a combined Cut-off date principal balance of $157,744,298.39.All DSCR statistics are
calculated based upon the highest Debt Service Payment shown in Annex A-3 of the Prospectus Supplement dated September 17,
2002.
(b) Based on the amortization schedule shown in Annex A-3 of the Prospectus Supplement dated September 17, 2002.
Control Loan / Property Name Monthly Grace Interest Original Stated Remain- Stated Cut-off
Number Debt Period Only Term to Original ing Term Remaining Date
Service Period Maturity Amort- to Amort- Principal
Payment / ARD ization Maturity ization Balance
(months) Term / ARD Term
(months) (months) (months)
000 Xxxxxxxx Xxxx 380,816.84 0 NAP 120 300 118 298 56,248,958.35
000 Xxxxxxxxx Xxxx (a) 463,888.93 0 NAP 120 360 118 358 78,872,149.20(b)
Control Loan
Number Balance
at
Maturity
/ ARD
102 343,716,406.58
105 267,212,359.92(a)
Footnotes:
------------------------------------
(a) Represents one of two pari passu A notes with equal Cut-off date principal balances.All LTV and DSCR statistics are calculated
based upon both A notes, which have a combined Cut-off date principal balance of $157,744,298.39.All DSCR statistics are
calculated based upon the highest Debt Service Payment shown in Annex A-3 of the Prospectus Supplement dated September 17,
2002.
(b) Based on the amortization schedule shown in Annex A-3 of the Prospectus Supplement dated September 17, 2002.
Control Loan / Property Name Defease- Defease Yield Yield Prepayment Prepayment Yield Yield
Number ance -ance Mainten- Mainten- Penalty Penalty Maintenance Maintenance
Start End ance ance Start End Date Calculation Interest
Date Date Period Period Date Method Rate
Start End
Date Date
000 Xxxxxxxx Xxxx 07/11/05 01/10/12 NAP NAP NAP NAP NAP NAP
000 Xxxxxxxxx Xxxx (a) 10/11/04 04/10/12 NAP NAP NAP NAP NAP NAP
Control Yield Yield
Number Maintenance Maintenancee
Interest Interest
Rate Rate
Converted Reference
to Date
Monthly
Mortgage
Rate
102 NAP NAP
105 NAP NAP
Footnotes:
------------------------------------
(a) Represents one of two pari passu A notes with equal Cut-off date principal balances.All LTV and DSCR statistics are calculated
based upon both A notes, which have a combined Cut-off date principal balance of $157,744,298.39.All DSCR statistics are
calculated based upon the highest Debt Service Payment shown in Annex A-3 of the Prospectus Supplement dated September 17,
2002.
A-1
Control Loan / Property Name Originator Holdback Holdback Holdback Holdback Description
Number Original Current is a
Balance Balance Letter
as of of
6/1/02 Credit
000 Xxxxxxxx Xxxx Xxxxxx Finacial, Inc. NAP NAP NAP NAP
000 Xxxxxxxxx Xxxx (a) Column Finacial, Inc. NAP NAP NAP NAP
Footnotes:
------------------------------------
(a) Represents one of two pari passu A notes with equal Cut-off date principal balances.All LTV and DSCR statistics are calculated
based upon both A notes, which have a combined Cut-off date principal balance of $157,744,298.39.All DSCR statistics are
calculated based upon the highest Debt Service Payment shown in Annex A-3 of the Prospectus Supplement dated September 17,
2002.
X-0
Xxxxxxx X-0
Representations, Warranties and covenants
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 the Loan REMIC
Interests (and, in the event that the related transaction is deemed to
constitute a loan secured by all or part of the Mortgage Loans and the Loan
REMIC Interests, to pledge the Mortgage Loans and the Loan REMIC Interests) 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
B-1-1
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.
(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 and the Loan REMIC Interests 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 and the Loan REMIC Interests do not constitute
all or substantially all of the assets of the Seller.
(k) The Seller is not transferring the Mortgage Loans and the Loan
REMIC Interests 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 and the
Loan REMIC Interests to the Purchaser, as contemplated herein.
(m) After giving effect to its transfer of the Mortgage Loans and the
Loan REMIC Interests 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) In connection with its transfer of the Mortgage Loans and the Loan
REMIC Interests to the Purchaser as provided herein, the Seller is receiving new
value and consideration constituting at least reasonably equivalent value and
fair consideration for the Mortgage Loans and the Loan REMIC Interests.
(p) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
B-1-2
EXHIBIT B-2
Representations, Warranties and Covenants
with respect to the 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.
(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, and except for those filings of Mortgage Loan
documents and assignments thereof that are contemplated by the Pooling and
Servicing Agreement to be completed after the Closing Date.
B-2-1
Exhibit C
Representations and Warranties with Respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's knowledge"
and other words and phrases of like import shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller (and, as
to any Mortgage Loan, with respect to the period subsequent to origination, any
servicer acting on behalf of the Seller with respect to that Mortgage Loan)
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein); provided that the Seller shall be deemed
to have knowledge of the information contained in those loan documents relating
to each of the Mortgage Loans that are required to be delivered by the Seller to
the Purchaser or the Purchaser's designee as part of the related Mortgage File
or otherwise pursuant to Section 2(c) of this Agreement (collectively as to the
subject Mortgage Loan, the "Mortgage Loan Documents"). For purposes of this
Exhibit C, the "Value" of a Mortgaged Property shall mean the value of such
Mortgaged Property as determined by the appraisal (and subject to the
assumptions set forth in the appraisal) performed in connection with the
origination of the related Mortgage Loan.
The Seller hereby represents and warrants with respect to the
respective Mortgage Loans that, as of the date hereinbelow specified or, if no
such date is specified, as of the Closing Date:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (consistent
with the definition of Mortgage Loan Schedule in the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the respective Due Dates for the Mortgage Loans in September 2002.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights identified on Schedule C-2). The Seller has
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,
charge, security interest or other encumbrance (except for certain servicing
rights identified on Schedule C-2); provided that recording and/or filing of
various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. 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.
C-1
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in September 2002 (without giving effect to any applicable grace
period), nor was any such payment 30 days or more delinquent in the twelve-month
period immediately preceding the Due Date for such Mortgage Loan in September
2002 (without giving effect to any applicable grace period), nor was any such
payment 60 days or more delinquent since origination (without giving effect to
any applicable grace period).
4. Lien; Valid Assignment. The Mortgage securing and delivered in
connection with each Mortgage Loan constitutes a legal, valid and, subject to
the limitations and exceptions set forth in Paragraph 13 below, enforceable
first priority lien upon the related Mortgaged Property, including, without
limitation, all buildings located thereon and all fixtures attached thereto,
prior to all other liens and encumbrances, and such Mortgaged Property is free
and clear of all liens and encumbrances that have priority over and/or are pari
passu with the lien of such Mortgage, in any event subject, however, to the
following (collectively, the "Permitted Encumbrances"): (a) the lien for current
real estate taxes, ground rents, water charges, sewer rents and assessments not
yet due and payable; (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy (or, if not yet issued, referred to
in a pro forma title policy or a "marked-up" commitment binding upon the title
insurer), none of which materially interferes with the security intended to be
provided by such Mortgage, the current principal use or operation of the related
Mortgaged Property, the Value of the Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (c) 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 "marked-up" commitment binding upon the title insurer),
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use of the related Mortgaged Property, the
Value of the 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, the Value of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; (e) the
rights of tenants (as tenants only) under leases (including the right to sublet)
pertaining to the related Mortgaged Property, which rights do not materially
interfere with the security intended to be provided by such Mortgage, the
current principal use of the related Mortgaged Property, the Value of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan; (f)
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; and (g) if the related Mortgaged Property consists
of one or more units in a condominium, the related condominium declaration, the
terms of which condominium declaration do not materially interfere with the
security intended to be provided by such Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan. 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
C-2
available to the Seller) and constitutes a legal, valid, binding and, subject to
the limitations and exceptions set forth in Paragraph 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates in favor of holder a valid,
subsisting and, subject to the limitations and exceptions 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, except for Permitted Encumbrances and except that a license
may have been granted to the related Borrower to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; 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 of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in Paragraph 13 below, enforceable
assignment of such Assignment of Leases from the relevant assignor to the
Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default. No person other than the related Borrower owns any interest
in any payments due under the related leases on which the Borrower is the
landlord, covered by the related Assignment of Leases.
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, (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.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds or insurance coverage exists sufficient to effect the necessary
repairs and maintenance). As of the date of origination of the Mortgage Loan,
there was no proceeding pending (or, to the Seller's knowledge, threatened by
the appropriate governmental authority with the power of eminent domain) for the
condemnation of all or any material part of the related Mortgaged Property. The
Seller has not received notice and has no knowledge of any proceeding pending
for the condemnation of all or any material portion of the
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Mortgaged Property securing any Mortgage Loan. As of the date of origination of
each Mortgage Loan and, to the Seller's knowledge, as of the Closing Date (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, and none of the material
improvements on the related Mortgaged Property encroached over any easements,
except, in each case, for encroachments that are insured against by the lender's
title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the Value or current use of such Mortgaged
Property and (b) no improvements on adjoining properties encroached upon such
Mortgaged Property so as to materially and adversely affect the Value of such
Mortgaged Property, except those encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring 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, to the Seller's knowledge, no material claims have been made
thereunder and no claims have been paid thereunder. No 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, 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 whether, or it affirmatively insures
(unless the related Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available) that, (a) the related Mortgaged Property
has access to a public road, and (b) 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
documented as part of the Mortgage Loan Documents and the rights to which are
transferred to the Trustee, 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.
10. Mortgage Provisions. The Mortgage Loan Documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
limitations and exceptions set forth in Paragraph 13 below, enforceable
provisions 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,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located). Except as
otherwise identified on Schedule C-10, none of the Mortgage Loan Documents
contain any provision that expressly
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excuses the related Borrower from obtaining and maintaining insurance coverage
for acts of terrorism (provided that such insurance coverage is generally
available at commercially reasonable rates and, in circumstances where such
insurance is not expressly required, that any request on the part of the lender
that the related Borrower maintain such insurance coverage is reasonable).
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 such Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, SBMS VII 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.
12. Environmental Conditions. Except as otherwise identified on
Schedule C-12A, (a) a "phase I" environmental site assessment meeting ASTM
standards and covering all environmental hazards typically assessed for similar
properties including use, type and tenants of the related Mortgaged Property, or
an update of such an environmental site assessment (which update may have been
effected through a transaction screen or a database search), was performed by an
independent third-party environmental consultant (licensed to the extent
required by applicable state law) with respect to each Mortgaged Property
securing a Mortgage Loan on behalf of the originator, the Seller or another
holder of such Mortgage Loan in connection with or subsequent to the origination
of such Mortgage Loan, (b) the report of each such assessment or update, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) twelve (12) months prior to the Closing Date, (c) a copy of
each such Environmental Report has been delivered to the Purchaser or its
servicing agent, (d) in cases where the related Mortgaged Property is identified
on Schedule C-12B, additional soil and/or ground water testing ("Additional
Testing", and any resulting report, also an "Environmental Report") was
performed by an independent third-party environmental consultant (licensed to
the extent required by applicable state law) with respect to such Mortgaged
Property on behalf of the originator, the Seller or another holder of such
Mortgage Loan in connection with or subsequent to the origination of such
Mortgage Loan and (e) either: (i) no such Environmental Report, if any, reveals
that as of the date of the report there is a material violation of applicable
environmental laws with respect to any known 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 one or more of the following are true--(A) one or
more parties not related to the related Borrower and collectively having
financial resources reasonably estimated to be adequate to cure the violation
was identified as the responsible party or parties for such conditions or
circumstance, and such conditions or circumstances do not materially impair the
Value of the related Mortgaged Property, (B) the related Borrower was required
to provide additional security reasonably estimated to be adequate to cure the
violations and/or to obtain and, for the period contemplated by the related
Mortgage Loan Documents, maintain an operations and maintenance plan, (C) the
related Borrower, or other responsible party, provided a "no further action"
letter or other evidence that would be 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
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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 third-party environmental consultant
recommended no further investigation or remediation, (E) the expenditure of
funds reasonably estimated to be necessary to effect such remediation is not
greater than 2% of the outstanding principal balance of the related Mortgage
Loan, (F) there exists an escrow of funds reasonably estimated to be sufficient
for purposes of effecting such remediation, (G) the related Borrower or other
responsible party is currently taking such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable governmental
regulatory authority or (H) a responsible party provided a guaranty or indemnity
to the related Borrower to cover the costs of any required investigation,
testing, monitoring or remediation and, as of the date of origination of the
related Mortgage Loan, such responsible party had financial resources reasonably
estimated to be adequate to cure the subject violation in all material respects.
To the Seller's knowledge, there are no significant or material circumstances or
conditions with respect to such Mortgaged Property not revealed in any such
Environmental Report, where obtained, that would require investigation or
remediation by the related Borrower under, or otherwise be a material violation
of, any applicable environmental law. The Mortgage Loan Documents for each
Mortgage Loan require the related Borrower to comply in all material respects
with all applicable federal, state and local environmental laws and regulations.
To the Seller's knowledge, none of the Mortgage Loans is covered by a secured
creditor environmental insurance policy, running to the benefit of the lender.
Each Borrower represents and warrants in the related Mortgage Loan Documents
that, except as set forth in certain environmental reports and to its actual
knowledge, it has not used, caused or permitted to exist and will not use, cause
or permit to exist on the related Mortgaged Property any hazardous materials in
any manner which violates federal, state or local laws, ordinances, regulations,
orders, directives or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal of
hazardous materials. With respect to each Mortgage Loan, the related Borrower
(or affiliate thereof) has agreed to indemnify, defend and hold the Seller and
its successors and assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, expenses and claims of any
kind whatsoever (including attorneys' fees and costs) paid, incurred or suffered
by or asserted against, any such party resulting from a breach of environmental
representations, warranties or covenants given by such Borrower in connection
with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement executed by or on behalf of the related Borrower 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, conveyance, receivership. moratorium or other similar laws
relating to or 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 state or federal law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability 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 valid defense,
counterclaim or right of offset, rescission,
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abatement or diminution, 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, except in each case, with
respect to the enforceability of any provisions requiring the payment of default
interest, late fees, additional interest, prepayment premiums or yield
maintenance charges.
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 insurance (or the equivalent) policy, in an amount at least
equal to the lesser of the outstanding principal balance of such Mortgage Loan
and 100% of the full insurable 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. Each Mortgaged Property is also covered by comprehensive general
liability insurance against claims for personal and bodily injury, death or
property damage occurring on, in or about the related Mortgaged Property in
amounts customarily required by prudent commercial lenders for properties of
similar types. Except as disclosed on Schedule C-14A, each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption or rental
loss insurance policy providing coverage in an amount equal to all effective
gross income (or, alternatively, in an amount equal to net operating income plus
continuing expenses) 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, (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 located in
California or seismic zones 3 and 4 is covered by seismic insurance to the
extent such Mortgaged Property has a probable maximum loss of greater than
twenty percent (20%) of the replacement value of the related improvements,
calculated using methodology acceptable to a reasonably prudent commercial
mortgage lender with respect to similar properties in the same area or
earthquake zone. All such hazard and flood 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 ten (10) 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. Additionally, except
as set forth on Schedule C-14B, for any Mortgage Loan having a Cut-off Date
Principal Balance equal to or greater than $5,000,000, the insurer for all of
the required coverages set forth herein satisfies the requirements of the
related Mortgage Loan Documents and has a claims paying ability or financial
strength rating from S&P or Xxxxx'x of not less than A-minus (or the
equivalent), or from A.M. Best Company of not less
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than "A:V" (or the equivalent). With respect to each Mortgage Loan, the related
Mortgage Loan Documents require that the related Borrower or a tenant of such
Borrower maintain insurance as described above or permit the related mortgagee
to require insurance as described above. Except under circumstances that would
be reasonably acceptable to a prudent institutional commercial mortgage lender
or that would not otherwise materially and adversely affect the security
intended to be provided by the related Mortgage, the Mortgage Loan Documents for
each Mortgage Loan provide 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 all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan Documents 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).
Except as set forth on Schedule C-14B, each Mortgaged Property is
insured by an "all-risk" casualty insurance policy that does not contain an
express exclusion for (or, alternatively, is covered by a separate policy that
insures against property damage resulting from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes,
water charges, sewer rents or assessments or other outstanding charges affecting
any Mortgaged Property securing a Mortgage Loan that are a lien of priority
equal to or higher than the lien of the related Mortgage and that have not been
paid (or if any do exist by reason of being in dispute, they are covered by an
escrow of funds sufficient to pay such items and other charges). 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 Borrower under a Mortgage Loan is a debtor
in any state or federal bankruptcy, insolvency or similar proceeding, and no
Mortgaged Property is the subject of any such proceeding in which any affiliate
of the related Borrower is a debtor.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Borrower at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan 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). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance insurance coverage has been
obtained in an amount that would be required by prudent commercial mortgage
lenders (or, if the related Mortgaged Property may not be restored or repaired
to the full extent of the use or
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structure at the time of such casualty and law and ordinance insurance coverage
has not been obtained in an amount that would be required by prudent commercial
mortgage lenders, such fact does not materially and adversely affect the Value
of the related Mortgaged Property).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (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 Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) such Ground Lease or a memorandum thereof has been or
will be duly recorded as of the Closing Date; such Ground Lease
permits the interest of the lessee thereunder to be encumbered 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; and if required by such Ground Lease, the
lessor thereunder has received notice of the lien of the related
Mortgage in accordance with the provisions of such Ground Lease;
(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 the related Fee Interest and
Permitted Encumbrances;
(c) the Borrower's interest in such Ground Lease is
assignable to, is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained); provided that such
Ground Lease has not been terminated and all amounts owed thereunder
have been paid;
(d) such Ground Lease is in full force and effect, and, to
the Seller's knowledge, no material default has occurred under such
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; and 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
through legal proceedings) 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 either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity
Date of such Mortgage Loan,
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or (ii) has an original term which does not end prior to the 5th
anniversary of the Stated Maturity Date of such Mortgage Loan and has
extension options that are exercisable by the lender upon its taking
possession of the Borrower's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not
less than twenty (20) years beyond the Stated Maturity Date 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 for
any reason, including 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 related casualty insurance proceeds
(other than de minimis 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;
(j) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender in the lending area where the
related Mortgaged Property is located at the time of the origination
of such Mortgage Loan; and
(k) such Ground Lease provides that it may not be amended or
modified without the prior written 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. Each Mortgage Loan is (and, if such Mortgage
Loan is an asset of a Loan REMIC, the related Loan REMIC Regular Interest also
is) a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
and Treasury regulation section 1.860G-2(a) (but without regard to the rule in
Treasury regulation section 1.860G-2(f)(2)).
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property
(other than amounts paid by the tenant as specifically provided under related
lease or by the 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.
C-10
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, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides 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) 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 the Seller nor any affiliate thereof has
any obligation to make any capital contributions to the Borrower under any
Mortgage Loan. None of the Mortgage Loans was originated for the primary purpose
of financing incomplete improvements on the related Mortgaged Property.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits, proceedings or governmental investigations by or before any
court or governmental authority against or affecting the Borrower 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 or the
current ability of the Borrower to pay principal, interest or any other amounts
due under such Mortgage Loan. The Seller has not intentionally violated any
provision of the United States Bank Secrecy Act, the United States Money
Laundering Control Act of 1986 or the United States International Money
Laundering Abatement and Anti-Terrorist Financing Act of 2001, or any other law
of any jurisdiction, applicable to it or the Mortgage Loans insofar as such laws
require Seller to make investigations, reports or take other actions with
respect to the related Borrowers.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, 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 related Mortgage Loan
Documents require the Borrower under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. To the Seller's knowledge: (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
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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. Each Mortgage Loan complied with, or was exempt from,
all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. As of the date of origination of each
Mortgage Loan, which knowledge is based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Borrower at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located, 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, occupancy 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. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. 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" within the meaning of 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 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 in connection
therewith; and provided, further, that certain Cross-Collateralized Groups of
Mortgage Loans or individual Mortgage Loans secured by multiple parcels may
permit the related Borrower to obtain the release of one or more of the related
Mortgaged Properties by substituting comparable real estate property, subject
to, among other conditions precedent, receipt of confirmation from each Rating
Agency that such release and substitution will not result in a qualification,
downgrade or withdrawal of any of its then-current ratings of the Certificates;
and provided, further, that any Mortgage Loan may permit the unconditional
release of one or more unimproved parcels of land to which the Seller did not
give any material value in underwriting the Mortgage Loan. No release or partial
release of any Mortgaged Property, or any portion thereof, expressly permitted
by the related Mortgage Loan Documents, will constitute a significant
modification of the related Mortgage Loan under Treasury regulation section
1.860G-2(b)(2).
C-12
29. Defeasance. Except as otherwise specified on Schedule C-29, each
Mortgage Loan that contains a provision for any defeasance of mortgage
collateral permits defeasance (i) no earlier than two years following the
Closing Date (or, if such Mortgage Loan is an asset of a Loan REMIC, the
"start-up date" with in the meaning of Section 860G(a)(9) of the Code for such
Loan REMIC) and (ii) only with substitute collateral constituting "government
securities" within the meaning of Treasury regulation section 1.860G-2(a)(8)(i).
To the Seller's knowledge, defeasance under each such 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.
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan Documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee, including Rating Agency fees.
31. 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.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within twelve (12)
months preceding the Closing Date.
33. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note, Mortgage, Assignment of Leases or other related loan documents for any
Mortgage Loan (other than payments due but not yet 30 days or more delinquent);
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that pertains to or arises
out of the subject matter otherwise covered by any other representation and
warranty made by the Seller in this Exhibit C. For purposes of this Paragraph
33, the Seller shall be deemed to have such knowledge as a servicer would be
reasonably expected to have as a result of performing normal and customary
servicing duties with respect to commercial and multifamily mortgage loans being
held for securitization.
34. Due-on-Sale. Except as described on Schedule C-34, the Mortgage
for each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of or permits lender to accelerate the payment of the unpaid
principal balance of such Mortgage Loan if, without the prior written consent of
the holder of such Mortgage, either the related Mortgaged Property, or any
direct controlling equity interest in the related Borrower, is 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, transfers of shares in public companies, 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 Mortgage Loans or multi-property Mortgage Loans,
transfers among co-Borrowers or transfers of a similar nature to the foregoing
meeting the requirements of the Mortgage Loan.
C-13
35. Single Purpose Entity. Except in cases where the related Mortgaged
Property is a residential cooperative property, the Borrower on each Mortgage
Loan with a Cut-off Date Principal Balance of $5,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan Documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
Documents, that it has its own books and records and accounts separate and apart
from those of any other person, that it conducts its business in its own name,
that it holds itself out as a legal entity (separate and apart from any other
person), that it will not guarantee or assume the debts of any other person,
that it will not commingle assets with affiliates, and that it will not transact
business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots which
shall be effective for the next tax year.
38. ARD Loans. As of the Closing Date, each ARD Loan requires
scheduled monthly payments of principal. If any ARD Loan is not paid in full by
its Anticipated Repayment Date, and assuming it is not otherwise in default, (i)
the rate at which such ARD Loan accrues interest will increase by at least two
(2) percentage points and (ii) the related Borrower is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable Master Servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording, in all places
necessary to perfect (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 of the related Borrower granted under the related
Mortgage. If any Mortgaged Property securing a Mortgage Loan is operated as a
hospitality property, then (a) the security agreements, financing statements or
other instruments, if any, related to the Mortgage Loan secured by such
Mortgaged Property establish and create a valid security interest in all items
of personal property owned by the related Borrower which are material to the
conduct in the ordinary course of the Borrower's business on the related
Mortgaged Property, subject only to purchase money security interests, personal
property leases and security interests to secure revolving lines of credit and
similar financing; and (b) one or more Uniform Commercial Code financing
statements covering such personal property have been filed or recorded (or have
been sent for filing or recording) wherever necessary to perfect
C-14
under applicable law such security interests (to the extent a security interest
in such personal property can be perfected by the filing of a Uniform Commercial
Code financing statement under applicable law). The related assignment of such
security interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee constitutes a legal, valid and binding assignment thereof
from the relevant assignor to the Trustee.
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. Commencement of Amortization. Each Mortgage Loan begins to
amortize prior to its stated maturity date or, in the case of an ARD Loan, prior
to its Anticipated Repayment Date.
42. Servicing Rights. Except as otherwise contemplated in this
Agreement or the Pooling and Servicing Agreement or as otherwise set forth on
Schedule C-2, no Person has been granted or conveyed the right to service any
Mortgage Loan or receive any consideration in connection therewith.
43. Recourse. Except as otherwise set forth on Schedule C-43, the\
related Mortgage Loan Documents contain provisions providing for recourse
against the related Borrower, a principal of such Borrower, or an entity
controlled by a principal of such Borrower for damages, liabilities, expenses or
claims sustained in connection with the Borrower's (i) fraud, (ii) material (or,
alternatively, intentional) misrepresentation, (iii) 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) or (iv) misappropriation of any
tenant security deposits (in some cases, only after foreclosure or an action in
respect thereof), rent (in some cases, only after an event of default),
insurance proceeds or condemnation proceeds. The related Mortgage Loan Documents
contain provisions pursuant to which the related Borrower, a principal of such
Borrower or an entity controlled by a principal of such Borrower, has agreed to
indemnify the mortgagee for damages resulting from violations of any applicable
environmental laws.
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 is a fee simple
and/or leasehold estate interest in real property and the improvements thereon.
46. 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
C-15
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. Any and all material requirements under each Mortgage Loan as to
completion of any improvements and as to disbursement 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 respects or, if and to
the extent not so complied with, the escrowed funds (or an allocable portion
thereof) have not been released except in accordance with the terms of the
related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, except as
otherwise set forth on Schedule C-47, the related Mortgage requires the related
Borrower, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly and annual operating statements and
rent rolls (if there is more than one tenant) for the related Mortgaged Property
and annual financial statements (or alternatively, a balance sheet and profit
and loss statement) of the related Borrower, and with such other information as
may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage or Mortgage Note provides a grace period for delinquent Monthly
Payments no longer than fifteen (15) days from the applicable Due Date (or, in
the case of Mortgage Loans identified on Schedule C-48, five (5) days after the
date of written notice to the related Borrower of the default).
49. 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 such Mortgage Loan, the
holder of such Mortgage Loan was authorized to do business in the jurisdiction
in which the related Mortgaged Property is located.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken place
on the part of the Seller or any affiliated originator in connection with the
origination of any Mortgage Loan.
51. 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 mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Borrower or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies 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.
C-16
53. Loans to One Borrower. As of the Closing Date, not more than
$153,096,151 of the Mortgage Loans have the same Borrower or, to the Seller's
knowledge, have Mortgagors that are affiliates of each other.
C-17
Schedule C
----------
Schedule C-2
------------
None.
Schedule C-10
-------------
Westgate Mall: This rep is true and correct except that the related Mortgage
Loan Documents contain provisions that permit the related Borrower to cause its
parent to provide a letter of credit together with an agreement, acceptable to
the lender, permitting the lender to draw on such letter of credit under
circumstances when it would have been able to receive proceeds under a blanket
insurance policy providing coverage against acts of terrorism and meeting the
requirements of the related mortgage loan documents.
Schedule C-12A
--------------
None.
Schedule C-12B
--------------
None.
Schedule C-14A
--------------
None.
Schedule C-14B
--------------
None.
Schedule C-29
-------------
None.
Schedule C-34
-------------
Westgate Mall: This rep is true and correct except that the related Mortgage
Loan Documents contain provisions that, without prior written consent of the
holder of the related Mortgage, permit the transfer of interests in CBL &
Associates Properties, Inc. and CBL & Associates Properties on public or private
markets or through a merger or consolidation.
C-18
Schedule C-43
-------------
Westgate Mall: This rep is true and correct except that the related Mortgage
Loan Documents provide for recourse against the related Borrower for damages,
liabilities, expenses or claims sustained in connection with the gross
negligence or willful misconduct of the Borrower, but does not expressly cover
material, physical waste or a failure to repair or restore the Mortgaged
Property to the extent not covered by insurance.
Schedule C-47
-------------
None.
Schedule C-49
-------------
None.
X-00
XXXXXXX X-0
FORM OF CERTIFICATE OF A SECRETARY
OR ASSISTANT SECRETARY OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-KEY2
Certificate of Secretary of Column Financial, Inc.
I, ________, a duly elected and acting ________ of Column Financial, Inc.,
a Delaware corporation (the "Mortgage Loan Seller"), hereby certify, in
connection with the mortgage loan purchase agreement, dated as of September __,
2002 (the "Mortgage Loan Purchase Agreement"), between Salomon Brothers Mortgage
Securities VII, Inc. (the "Depositor") and the Mortgage Loan Seller, and the
transactions contemplated thereby (the "Transactions"), that I am the duly
elected, qualified and acting Assistant Secretary of the Mortgage Loan Seller
and that:
1. Attached hereto as Exhibit A is a full, true and accurate copy of the
Mortgage Loan Seller's Certificate of Incorporation. The Certificate
of Incorporation is in full force and effect as of the date hereof,
and there has been no amendment or proceedings relating to the
amendment of such Certificate of Incorporation filed or authorized
since __________, and no action has been taken or contemplated looking
toward any such amendment.
2. Attached hereto as Exhibit B is a full, true and accurate copy of the
By-laws of the Mortgage Loan Seller as in effect on ___________, and
at all times subsequent thereto.
3. The person set forth below is, and at all times since ________ has
been, the duly elected and qualified incumbent in the office set forth
below such person's name, has been and is duly authorized to sign, on
behalf of the Mortgage Loan Seller, all documents relating to the
Transactions which such person has signed and the signature set forth
opposite such person's name on any such documents is such person's
authentic and genuine signature.
Office Name Signature
Vice President Xxxxxxx Xxxxxxx _____________________________
4. Attached hereto as Exhibit C is a true and correct copy of the
Resolution adopted by the Board of Directors of the Mortgage Loan
Seller, dated as of ______ relating to:
(a) the authorization of the sale to Salomon Brothers Mortgage
Securities VII, Inc. of mortgage loans relating to the proposed
transactions under which
D-1-1
Salomon Brothers Mortgage Securities VII, Inc. Commercial
Mortgage Pass-Through Certificates, Series 2002-KEY2, will be
issued; and
(b) the authorization, execution and delivery of, among other
documents, the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF. I have executed this certificate as of September ___,
2002.
____________________________
Name:
Title:
I, _____________,an appointed ____________ of Column Financial, Inc.,
certify that _______________ is the duly appointed and acting ____________ of
Column Financial, Inc. and that his/her signature above is genuine.
____________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-KEY
Certificate of Column Financial, Inc.
I, ___________, a duly elected and acting ______________ of Column
Financial, Inc., a Delaware corporation (the "Mortgage Loan Seller"), hereby
certify as follows:
Each of the obligations of the Mortgage Loan Seller required to be
performed by it on or prior to the date hereof pursuant to the terms of the
mortgage loan purchase agreement, dated as of September __, 2002 (the "Mortgage
Loan Purchase Agreement"), by and between the Mortgage Loan Seller, as seller,
and Salomon Brothers Mortgage Securities VII, Inc., as depositor, have been duly
performed and complied with and all of the representations and warranties of the
Mortgage Loan Seller under the Mortgage Loan Purchase Agreement are true and
correct as of the date hereof and no event has occurred with respect to the
Mortgage Loan Seller which constitutes or would, with notice or the passage of
time, constitute a default under such agreement.
IN WITNESS WHEREOF, I have hereunto signed my name this ___th day of
September, 2002.
__________________________________
Name:
Title:
X-0-0
XXXXXXX X-0X
XXXX XX XXXXXXX OF IN-HOUSE COUNSEL
TO THE SELLER
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series [________]
----------------------------------------------------------------
Ladies and Gentlemen:
I am a Vice President and Counsel of Credit Suisse First Boston Corporation
("CSFB") and have acted as special counsel to Column Financial, Inc. ( the
"Mortgage Loan Seller") in connection with certain matters relating to: (i) the
Mortgage Loan Seller's sale to Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor") of certain multifamily and commercial mortgage loans
pursuant to that certain (the "Mortgage Loan Purchase Agreement"), dated as of
[DATE], by and between the Depositor and the Mortgage Loan Seller and (ii) its
providing indemnities to the Depositor, CSFB, [ ], [ ] and [ ], dated [DATE], by
and among the Mortgage Loan Seller, the Depositor, CSFB, [ ], [ ] and [ ],.
Capitalized terms used and not otherwise defined herein have the meanings given
to them in the Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, I have examined and relied upon
originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Indemnification Agreement and the Mortgage Loan Purchase
Agreement (together, the "Agreements"), and such certificates, corporate records
and other documents, agreements, instruments and opinions, as I have deemed
appropriate as a basis for the opinions hereinafter expressed. In connection
with such examination, I have assumed the genuineness of all signatures (other
than with respect to the Mortgage Loan Seller), the authenticity of all
documents, agreements and instruments submitted to me as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to me as copies or specimens and the
authenticity of the originals of such documents, agreements and instruments
submitted to me as copies or specimens and the accuracy of the matters set forth
in the documents, agreements and instruments I reviewed, to the extent such
matters do not constitute legal conclusions upon which I have been asked to
opine. As to any facts material to such opinions that were not known to me, I
have relied upon statements, certificates and representations of officers and
other representatives of the Depositor, the Mortgage Loan Seller and of public
officials.
Based upon and subject to the foregoing, I am of the opinion that:
1. The execution, delivery and performance of the Agreements have been duly
authorized by the Mortgage Loan Seller and the Agreements have been duly
executed and delivered by the Mortgage Loan Seller.
2. The execution and delivery by the Mortgage Loan Seller of the Agreements,
the performance by the Mortgage Loan Seller of its obligations under the
Agreements and the consummation by the Mortgage Loan Seller of the
transactions therein contemplated, do not conflict with or result in a
breach or violation of the Mortgage Loan Seller's certificate of
incorporation or bylaws or, to my knowledge, conflict with or
D-3A-2
result in a breach or violation of any material indenture, agreement or
instrument to which the Mortgage Loan Seller is a party or by which it or
any of its property is bound, or any judgment, decree or order applicable
to the Mortgage Loan Seller, of any New York State or federal court,
regulatory body, administrative agency or other governmental authority,
other than potential conflicts, breaches or violations which individually
and in the aggregate are not reasonably expected to have a material adverse
effect on the ability of the Mortgage Loan Seller to perform its
obligations under the Agreements.
3. To my knowledge, there is no legal or governmental action, investigation or
proceeding pending or threatened against the Mortgage Loan Seller (a)
asserting the invalidity of any of the Agreements, (b) seeking to prevent
the consummation of any of the transactions contemplated by the Agreements
or (c) which could reasonably be expected to materially and adversely
affect the performance by the Mortgage Loan Seller of its obligations
under, or the validity or enforceability (with respect to the Mortgage Loan
Seller) of, the Agreements. For purposes of the opinion set forth in this
paragraph, I have not regarded any legal or governmental actions,
investigations or proceedings to be "threatened" unless the potential
litigant or governmental authority has overtly threatened in writing to the
Mortgage Loan Seller a present intention to initiate such proceedings.
I am a member of the Bar of the State of New York and this opinion is
limited to the laws of the State of New York, the General Corporation Law of the
State of Delaware and the federal laws of the United States of America (in each
case without regard to conflicts of laws principles). I am not licensed to
practice law in the State of Delaware, and the opinion in paragraph (1) above as
to the Delaware General Corporation Law is based solely on standard compilations
of the official statutes of Delaware. I express no opinion as to the effect of
the laws of any other jurisdiction on matters addressed in this opinion.
This opinion is limited to the matters specifically addressed herein, and I
express no opinion as to any other matters relating to, or which may arise in
connection with, the consummation of the transaction contemplated by the
Agreements.
I am furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose.
Very truly yours,
D-3A-2
EXHIBIT D-3B
FORM OF OPINION OF CADWALADER, XXXXXXXXXX & XXXX,
SPECIAL COUNSEL TO THE SELLER
Re: Issuance of Salomon Brothers Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2002- KEY2
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc. ("Column") in
connection with the Mortgage Loan Purchase Agreement, dated as of September 17,
2002 (the "Column Mortgage Loan Purchase Agreement"), among Salomon Brothers
Mortgage Securities VII, Inc. (as "Depositor") and Column, relating to the sale
by Column and the purchase by the Depositor, pursuant to the Column Mortgage
Loan Purchase Agreement, of the mortgage loans described therein. Capitalized
terms used herein but not defined herein have the respective meanings given to
them in the Column Mortgage Loan Purchase Agreement. We are rendering this
opinion letter to you at the request of Column pursuant to Section 6(b)(ii) of
the Column Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, we have examined and relied upon
originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Transaction Documents (as defined below) and such
certificates, corporate and public records, agreements and instruments and other
documents, including, among other things, the documents delivered on the date
hereof, as we have deemed appropriate as a basis for the opinions expressed
below. In such examination we have assumed the genuineness of all signatures,
the authenticity of all documents, agreements and instruments submitted to us as
originals, the conformity to original documents, agreements and instruments of
all documents, agreements and instruments submitted to us as copies or
specimens, the authenticity of the originals of such documents, agreements and
instruments submitted to us as copies or specimens, and the accuracy of the
matters set forth in the documents, agreements and instruments we reviewed
(other than the legal conclusions that are the subject of this opinion). As to
any facts material to such opinions that were not known to us, we have relied
upon statements and representations of officers and other representatives of
Column and of public officials. Except as expressly set forth herein, we have
not undertaken any independent investigation (including, without limitation,
conducting any review, search or investigation of any public files, records or
dockets) to determine the existence or absence of the facts that are material to
our opinions, and no inference as to our knowledge concerning such facts should
be drawn from our reliance on the representations of Column and others in
connection with the preparation and delivery of this letter.
In particular, we have examined and relied upon:
(i) the Column Mortgage Loan Purchase Agreement; and
D-3B-1
(ii) the opinion of Xxxxxx X. XxXxxxxxx, Esq., Vice President and
Counsel to Credit Suisse First Boston Corporation, acting as special
counsel to the Mortgage Loan Seller, dated the date hereof;
Items (i) through (ii) above are referred to in this letter as the "Transaction
Documents." References in this letter to "Applicable Laws" shall mean those
laws, rules and regulations of the State of New York and of the United States of
America which, in our experience, are normally applicable to transactions of the
type contemplated by the Transaction Documents. References in this letter to the
term "Governmental Authorities" means executive, legislative, judicial,
administrative or regulatory bodies of the State of New York or the United
States of America. References in this letter to the term "Governmental Approval"
means any consent, approval, license, authorization or validation of, or filing,
recording or registration with, any Governmental Authority pursuant to
Applicable Laws.
We have also assumed (other than with respect to Column) that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties had the power and legal
right to execute and deliver all such documents, agreements and instruments, and
that such documents, agreements and instruments are valid, binding and
enforceable obligations of such parties. As used herein, "to our knowledge",
"known to us" or words of similar import mean the actual knowledge, without
independent investigation, of any lawyer in our firm actively involved in the
transactions contemplated by the Column Mortgage Loan Purchase Agreement.
We express no opinion concerning the laws of any jurisdiction other than
the laws of the State of New York and, to the extent expressly referred to in
this opinion letter, the federal laws of the United States of America, and with
respect to the opinions referred to in paragraph 1 below, the General
Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that:
1. Column is a corporation validly existing and in good standing under
the laws of the State of Delaware, with corporate power to enter into and
perform its obligations under the Column Mortgage Loan Purchase Agreement.
2. The Column Mortgage Loan Purchase Agreement constitutes a legal,
valid and binding agreement of Column, enforceable against Column in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, receivership or other
laws relating to or affecting creditors' rights generally, and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that the enforcement of rights
with respect to indemnification and contribution obligations and provisions
(a) purporting to waive or limit rights to trial by jury, oral amendments
to written agreements or rights of set off or (b) relating to submission to
jurisdiction, venue or service of process, may be limited by applicable law
or considerations of public policy.
3. The execution and delivery by Column of its obligations under the
Column Mortgage Loan Purchase Agreement and the performance by Column of
its
D-3B-2
obligations thereunder (a) do not require any Governmental Approval to be
obtained on the part of Column, except those that may be required under
state securities blue sky laws, and such other approvals that have been
obtained and, to our knowledge, are in effect and (b) do not result in a
violation of any Applicable Laws applicable to Column.
We are furnishing this opinion letter to you solely for your benefit in
connection with the transactions referred to herein. This opinion letter is not
to be relied upon, used, circulated, quoted or otherwise referred to by any
other person or entity or for any other purpose without our prior written
consent. In addition, we disclaim any obligation to update this opinion for
changes in fact or law, or otherwise.
Very truly yours,
D-3B-3
EXHIBIT D-3C
FORM OF LETTER RELATING
TO DISCLOSURE FROM
CADWALADER, XXXXXXXXXX & XXXX,
SPECIAL COUNSEL TO THE SELLER
Re: Salomon Brothers Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2002- KEY2
-----------------------------------------------------
Ladies and Gentlemen:
This letter is being delivered to you pursuant to (i) Section 6(b)(ii)
of the Mortgage Loan Purchase Agreement, dated as of September 17, 2002 (the
"Mortgage Loan Purchase Agreement"), between Column Financial, Inc. (the
"Seller") and Salomon Brothers Mortgage Securities VII, Inc. (the "Depositor"),
relating to the sale by the Seller and the purchase by the Depositor of certain
commercial mortgage loans described therein (the "Column Mortgage Loans"), (ii)
Section (6)(b)(ii)of the Underwriting Agreement, dated September 17, 2002 (the
"Underwriting Agreement"), among the Depositor, Credit Suisse First Boston
Corporation ("CSFBC"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("MLPFSI"), McDonald Investments, Inc. ("MI") and Xxxxxxx Xxxxx Xxxxxx Inc.
("SSBI" and, together with CSFBC, MLPFSI and MI, the "Underwriters") relating to
the sale by the Depositor and the purchase by the Underwriters of the
Depositor's Series 2002-KEY2 Commercial Mortgage Pass-Through Certificates,
Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E and Class F
Certificates (the "Offered Certificates") and (iii) the Certificate Purchase
Agreement, dated as of September 17, 2002 (the "Certificate Purchase
Agreement"), by and between the Depositor, and SSBI, as purchasers (the "Initial
Purchasers"), relating to the sale by the Depositor and the purchase by the
Initial Purchasers of the Depositor's Series 2002-KEY2 Commercial Mortgage
Pass-Through Certificates Class X-1, Class X-2, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q, Class S, Class R, Class T and Class Y
Certificates (the "Private Certificates" and together with the Offered
Certificates, the "Certificates"). The Certificates are being issued pursuant to
a Pooling and Servicing Agreement, dated as of September 11, 2002 (the "Pooling
and Servicing Agreement"), among the Depositor, KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer, ARCap Special
Servicing, Inc., as special servicer and Xxxxx Fargo Bank Minnesota, N.A., as
trustee (the "Trustee"). The Mortgage Loan Purchase Agreement, the Underwriting
Agreement, the Certificate Purchase Agreement and the Pooling and Servicing
Agreement are collectively referred to herein as the "Agreements". Capitalized
terms used herein but not defined herein have the respective meanings given them
in the Agreements.
We have acted as special counsel to the Seller in connection with the
aforementioned transaction, and have been asked by the Seller to deliver this
letter with respect to the Depositor's Prospectus, dated September 3, 2002 (the
"Base Prospectus"), as supplemented by the Prospectus Supplement, dated
September 17, 2002, relating
D-3C-1
to the Offered Certificates (the "Prospectus Supplement" and together with the
Base Prospectus, the "Prospectus"), and the Depositor's Offering Memorandum,
dated September 17, 2002, relating to the Private Certificates (the
"Memorandum"), in each case solely with respect to the information contained
therein relating to the pooled mortgage loan secured by the mortgaged real
property identified on Annex A-1 to the Prospectus Supplement as the Westfarms
Mall and the mortgage loan secured by the mortgaged real property identified on
Annex A-1 Prospectus Supplement as the Regency Mall (the "KeyBank Mortgage
Loans").
We assume, for purposes of this letter, the conformity of the text of
the Prospectus filed with the Securities and Exchange Commission (the
"Commission") through the Commission's Electronic Data Gathering, Analysis and
Retrieval System to the printed copy of the Prospectus reviewed by us. This
letter is also limited to the actual knowledge, without independent
investigation, of any lawyer in our firm actively involved in the transactions
contemplated by the Agreements.
We have not ourselves checked the accuracy, completeness or fairness
of, or otherwise verified, the information contained in the Prospectus or the
Memorandum, and we do not pass upon such information or assume any
responsibility therefor. In particular, without limiting the generality of the
foregoing and with your consent, we have not reviewed the Mortgage Files
relating to the Column Mortgage Loans, including without limitation, any
documents prepared or delivered in connection with the origination, modification
or assignment of the Mortgage. However, in the course of our review of the
Prospectus and the Memorandum, we have attended certain conferences and
participated in conversations with representatives of the Seller, your
representatives and counsel to the Depositor. On the basis of the information
which we gained in the course of the representation referred to above and our
examination of the documents referred to above insofar as such documents relate
to the Column Mortgage Loans, considered in light of our understanding of
applicable law and the experience we have gained through our practice, nothing
has come to our attention in the course of our review of the Prospectus or the
Memorandum which causes us to believe that as of their respective dates or as of
the date hereof, the Prospectus or the Memorandum contained or contains any
untrue statement of a material fact or omitted or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that we express no view as to (a) any information incorporated by reference in
the Prospectus or the Memorandum, (b) the adequacy or accuracy of (i) the
financial, numerical, statistical or quantitative information included in the
Prospectus or the Memorandum or (ii) any information contained in the computer
disk accompanying the Prospectus or the Memorandum, or (c) any information in
the Prospectus or the Memorandum other than information describing the Column
Mortgage Loans (including, without limitation, the terms thereof, the obligors
thereunder, and the related mortgaged real properties securing them), the
servicing and administration of the Westfarms Mall Mortgage Loan or the Seller.
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or for any other purpose without our prior written consent. In addition,
we disclaim any obligation to update this letter for changes in fact or law, or
otherwise.
Very truly yours,
D-3C-2
