EXHIBIT 99.4
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of May 18, 2001, between Prudential Mortgage Capital Funding, LLC,
a Delaware limited liability company ("PMCF"), as seller (in such capacity,
together with its successors and permitted assigns hereunder, the "Seller"),
Prudential Mortgage Capital Company, LLC, a Delaware limited liability company
("PMCC"), as an additional party responsible for certain of the Seller's
obligations hereunder (in such capacity, together with its successors and
permitted assigns hereunder, the "Additional Party") and Prudential Securities
Secured Financing Corporation, a Delaware corporation ("PSSFC"), as purchaser
(in such capacity, together with its successors and permitted assigns hereunder,
the "Purchaser").
RECITALS
PMCF desires to sell, assign, transfer, set over and otherwise convey to
PSSFC, without recourse, and PSSFC desires to purchase, subject to the terms and
conditions set forth herein, the multifamily and commercial mortgage loans
(collectively, 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.
PSSFC intends to create a trust (the "Trust"), the primary assets of which
will be a segregated pool of multifamily and commercial mortgage loans that
includes the Mortgage Loans. Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund" will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Xxxxx'x Investors Service, Inc. and Fitch, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered 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 May 1, 2001 (the "Pooling and Servicing Agreement"), among PSSFC, as
depositor (in such capacity, the "Depositor"), Prudential Asset Resources, Inc.,
as master servicer (in such capacity, the "Master Servicer") and as special
servicer with respect to the RREEF Mortgage Loan (in such capacity, the "RREEF
Special Servicer"), Lennar Partners, Inc., as special servicer with respect to
the Mortgage Loans other than the RREEF Mortgage Loan, (the "General Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee"), and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"), relating to the
issuance of PSSFC's Commercial Mortgage Pass-Through Certificates, Series
2001-C1 (the "Certificates"). Capitalized terms used but not otherwise defined
herein shall 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 PSSFC will transfer the Mortgage
Loans to the Trust contemporaneously with its purchase of the Mortgage Loans
hereunder.
PSSFC intends to sell the Registered Certificates to Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and Xxxxxxx Xxxxx Xxxxxx Inc.
("SSBI", and together with Xxxxxxx Xxxxx, the "Underwriters"), pursuant to an
underwriting agreement, dated as of March 31, 2001 (the "Underwriting
Agreement"), between PSSFC and the Underwriters; and PSSFC intends to sell the
remaining Certificates (the "Non-Registered Certificates") to Xxxxxxx Xxxxx
pursuant to a certificate purchase agreement, dated as of the date hereof (the
"Certificate Purchase Agreement"), between PSSFC and Xxxxxxx Xxxxx. The
Registered Certificates are more fully described in the prospectus dated May 10,
2001 (the "Base Prospectus"), and the supplement to the Base Prospectus dated
May 18, 2001
(the "Prospectus Supplement"; and, together with the Base Prospectus, the
"Prospectus"), as each may be amended or supplemented at any time hereafter. The
Non-Registered Certificates are more fully described in the private placement
memorandum dated May 18, 2001 (the "Memorandum"), as it may be amended or
supplemented at any time hereafter.
PMCF and PMCC will indemnify PSSFC, Xxxxxxx Xxxxx, SSBI and certain related
parties with respect to the disclosure regarding the Mortgage Loans and
contained in the Prospectus, the Memorandum and certain other disclosure
documents and offering materials relating to the Certificates, pursuant to an
indemnification agreement, dated the date hereof (the "Indemnification
Agreement"), among PMCF, PMCC, PSSFC and the Underwriters.
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, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on May 30, 2001 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). As of the close
of business on the respective Due Dates for the Mortgage Loans in May 2001
(individually 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 $908,240,310 subject to a variance of plus or minus 5% (the
"Initial Pool Balance"). The purchase price for the Mortgage Loans shall be as
set forth in the letter agreement between the Seller and the Purchaser, and the
Purchaser shall pay such purchase price to the Seller on the Closing Date by
wire transfer in immediately available funds or by such other method as shall be
mutually acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) On and as of the Closing Date, subject only to receipt of the purchase
price referred to in Section 1 hereof and the other conditions to the Seller's
obligations set forth herein, 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, including all
interest and principal received on or with respect to the Mortgage Loans 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 and required for the ongoing administration and servicing
of the Mortgage Loans ("Reserves").
(b) The Purchaser shall be entitled to receive all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date, and all
other recoveries of principal and interest collected thereon after the Cut-off
Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver or cause to be delivered to the Purchaser or its
designee the Mortgage File and any Additional Collateral (other than Reserves)
with respect to each Mortgage Loan. In addition, with respect to each Mortgage
Loan as to which any Additional Collateral is in the form of a Letter of Credit
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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 the Purchaser or its designee the Seller's rights as the
beneficiary thereof and drawing party thereunder. Unless the Purchaser notifies
the Seller in writing to the contrary, the designated recipient of the items
described in the second preceding sentence, 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 document that is
required to be part of the Mortgage File for any Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee of
any notice of any remaining deficiencies to such Mortgage File as of
November 30, 2002, the Seller shall reconfirm its obligation to complete
such Mortgage File and to correct all deficiencies associated therewith,
and, if it fails to do so within 45 days after its receipt of such notice,
the Seller shall deliver to the Purchaser or its designee a limited power
of attorney (in a form reasonably acceptable to the Seller and the
Purchaser) permitting the Purchaser or its designee to execute all
endorsements (without recourse) and to execute and, to the extent
contemplated by Section 2(d) and the Pooling and Servicing Agreement,
record all instruments of transfer and assignment with respect to the
subject Mortgage Loan;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts to
cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
In addition, 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,
on or before the Closing Date, the following items (except to the extent 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
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are reasonably required for the ongoing administration
and servicing of the Mortgage Loans; and (ii) all Reserves in the possession or
under the control of the Seller that relate to the
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Mortgage Loans. Unless the Purchaser notifies the Seller in writing to the
contrary, the designated recipient of the items described in clauses (i), (ii)
and (iii) of the preceding sentence shall be the Master Servicer.
(d) The Seller shall be responsible for all reasonable out-of-pocket costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer 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 or for costs and expenses that the related Borrowers have agreed to
pay. If the Seller receives written notice that 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, the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be.
(e) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Seller shall report its transfer of the Mortgage Loans
to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof. In
connection with the foregoing, the Seller shall cause all of its records to
reflect such transfer as a sale (as opposed to a secured loan) and to reflect
that the Mortgage Loans are no longer property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser, as
provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all actions required under applicable law to
effectuate the transfer of the Mortgage Loans 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.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review. The
Seller shall reasonably cooperate with any examination of the Mortgage Files
for, and any other documents and records relating to, the Mortgage Loans, that
may be undertaken by or on behalf of the Purchaser. The fact that the Purchaser
has conducted or has failed to conduct any partial or complete examination of
any of the Mortgage Files for, and/or any of such other documents and records
relating to, the Mortgage Loans, shall not affect the Purchaser's right to
pursue any remedy available in equity or at law for a breach of the Seller's
representations and warranties made pursuant to Section 4, except as expressly
set forth in Section 5.
SECTION 4. Representations, Warranties and Covenants of the Seller, the
Purchaser and the Additional Party.
(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
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makes, as of the Closing Date, to and for the benefit of the Seller and the
Additional Party, each of the representations and warranties set forth in
Exhibit B-2. The Additional Party 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-3. The respective representations and warranties of the
parties hereto set forth in Exhibits X-0, X-0 and B-3 are hereinafter referred
to collectively as the "Corporate Representations".
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the initial Purchaser only, that the Seller has not dealt
with any broker, investment banker, agent or other person (other than PSSFC,
Xxxxxxx Xxxxx and SSBI) who may be entitled to any commission or compensation in
connection with the sale to the Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser, as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 5(a) hereof), by the Seller
or the Additional Party, as the case may be, pursuant to Section 5(a) of this
Agreement, each of the representations and warranties set forth in Exhibit B-1
and Exhibit C to this Agreement. From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes.
(e) It is understood and agreed that the representations and warranties set
forth in 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, notwithstanding any restrictive or qualified
endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) Upon discovery of any Material Breach or Material Document Defect, the
Purchaser or its designee shall notify the Seller and the Additional Party
thereof in writing and request that the Seller correct or cure such Breach or
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in
accordance with the terms hereof and, if applicable, the terms of the Pooling
and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller certifies in
writing to the Purchaser (i) that any such Material Breach or Material Document
Defect, as the case may be, does not and will not cause the Defective Mortgage
Loan, to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) that such Material Breach
or Material Document Defect, as the case may be, is capable of being cured but
not within the applicable Initial Resolution Period, (iii) 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, and (iv) 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 the applicable Resolution Extension Period (as
defined below), then the Seller shall have an additional period equal to the
applicable Resolution Extension
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Period to complete such cure or, failing such, to repurchase the Defective
Mortgage Loan; and provided, further, that, if the Seller's obligation to
repurchase any Defective Mortgage Loan as a result of a Material Breach or
Material Document Defect arises within the three-month period commencing on the
Closing Date (or within the two-year period commencing on the Closing Date if
the Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling
and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (i) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qualifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding Substitution Shortfall Amount, such substitution and payment to be
effected in accordance with the terms of the Pooling and Servicing Agreement.
Any such repurchase or replacement 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 a Mortgage Loan, it will notify the
Purchaser. For purposes of remediating a Material Breach or Material Document
Defect with respect to any Mortgage Loan, "Resolution Extension Period" shall
mean the 90-day period following the end of the applicable Initial Resolution
Period.
If one or more of the Mortgage Loans constituting a Cross-Collateralized
Group are the subject of a Breach or Document Defect, then, for purposes of (i)
determining whether such Breach or Document Defect is a Material Breach or
Material Document Defect, as the case may be, and (ii) the application of
remedies, such Cross-Collateralized Group shall be treated as a single Mortgage
Loan.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 5(a), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 5(a) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
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The Additional Party agrees, in consideration of and as an inducement to
the Purchaser's purchase of the Mortgage Loans from the Seller, to be jointly
and severally liable with the Seller, subject to the same conditions,
qualifications and limitations, for the full and timely performance by the
Seller of its obligations under this Section 5(a). Insofar as the Additional
Party is performing the obligations of the Seller, references to the Seller in
the preceding four paragraphs of this Section 5(a), shall mean the Additional
Party.
It is understood and agreed that the obligations of the Seller and the
Additional Party set forth in this Section 5(a) to cure a Material Breach or a
Material Document Defect or repurchase or replace the related Defective Mortgage
Loan(s), constitute the sole remedies available to the Purchaser with respect to
such Breach or Document Defect.
(b) It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller or the Additional Party pursuant to Section 5(a)
that the Purchaser shall have executed and delivered such instruments of
transfer or assignment then presented to it by the Seller or the Additional
Party, as applicable, in each case without recourse, as shall be necessary to
vest in the Seller or the Additional Party, as applicable, the legal and
beneficial ownership of such Defective Mortgage Loan (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto), to the extent that such ownership interest was transferred to the
Purchaser hereunder.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley & Austin, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller and the
Additional Party made pursuant to Section 4 of this Agreement shall be true
and correct in all material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to 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, funds and other assets required to be
delivered thereto pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and each of the Seller and the Additional Party
shall have the ability to comply with all terms and conditions and perform
all duties and obligations required to be complied with or performed by it
after the Closing Date;
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(vi) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement;
(vii) the Seller shall have received the purchase price for the
Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Each of the parties agrees 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:
(i) This Agreement, duly executed by the Purchaser, the Seller and the
Additional Party;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1A 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 PSSFC, Xxxxxxx Xxxxx, SSBI and the Rating Agencies
(collectively, the "Interested Parties") may rely, attaching thereto as
exhibits (A) the resolutions of the board of directors of the Seller
authorizing the Seller's entering into the transactions contemplated by
this Agreement and the Indemnification Agreement, and (B) the
organizational documents of the Seller;
(iv) An Officer's Certificate substantially in the form of Exhibit
D-1B hereto, executed by the Secretary or an assistant secretary of the
Additional Party, in his or her individual capacity, and dated the Closing
Date, and upon which the Interested Parties may rely, attaching thereto as
exhibits (A) the resolutions of the board of directors of the Additional
Party authorizing the Additional Party's entering into the transactions
contemplated by this Agreement and the Indemnification Agreement, and (B)
the organizational documents of the Additional Party;
(v) A certificate of good standing with respect to the Seller issued
by the Secretary of State of the State of Delaware not earlier than 30 days
prior to the Closing Date, and upon which the Interested Parties may rely;
(vi) A certificate of good standing with respect to the Additional
Party issued by the Secretary of State of the State of Delaware not earlier
than 30 days prior to the Closing Date, and upon which the Interested
Parties may rely;
(vii) A Certificate of the Seller substantially in the form of Exhibit
D-2A hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated the Closing Date, and upon which the Interested Parties
may rely;
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(viii) A Certificate of the Additional Party substantially in the form
of Exhibit D-2B hereto, executed by an executive officer of the Additional
Party on the Additional Party's behalf and dated the Closing Date, and upon
which the Interested Parties may rely;
(ix) The written opinions of in-house counsel for each of the Seller
and the Additional Party, dated the Closing Date and addressed to the
Interested Parties and the Trustee, which opinions shall be substantially
in the respective forms of Exhibits D-3A and D-3B hereto (with such
additions, deletions or modifications as may be required by either Rating
Agency);
(x) A written opinion of Sidley Xxxxxx Xxxxx & Xxxx, special counsel
for the Seller and the Additional Party, dated the Closing Date and
addressed to the Interested Parties and the Trustee, which opinion shall be
substantially in the form of Exhibit D-3C hereto (with such additions,
deletions or modifications as may be required by either Rating Agency);
(xi) A written opinion of Sidley Xxxxxx Xxxxx & Xxxx, special counsel
for the Seller, dated the Closing Date and addressed to the Interested
Parties and the Trustee, which opinion shall be substantially in the form
of Exhibit D-3D hereto (with such additions, deletions or modifications as
may be required by either Rating Agency);
(xii) One or more comfort letters from PriceWaterhouse Coopers,
certified public accountants, dated the date of any preliminary Prospectus
Supplement and of the Prospectus Supplement, respectively, and addressed
to, and in form and substance acceptable to, the Interested Parties (other
than the Rating Agencies), stating in effect that, using the assumptions
and methodology used by PSSFC, all of which shall be described in such
letters, they have recalculated such numbers and percentages relating to
the Mortgage Loans set forth in any preliminary Prospectus Supplement, the
Prospectus Supplement and the Memorandum, compared the results of their
calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, and
found each such number and percentage set forth in any preliminary
Prospectus Supplement, the Prospectus Supplement and the Memorandum,
respectively, to be in agreement with the results of such calculations; and
(xiii) Such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require.
SECTION 8. Costs. The costs and expenses incurred in connection with the
transactions herein contemplated shall be allocated pursuant to the terms of the
Term Sheet.
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 similar mailed
writing, if to the Purchaser, addressed to the Purchaser at Xxx Xxx Xxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxx, or such other address as may
be designated by the Purchaser to the Seller in writing, or, if to the Seller,
addressed to the Seller at Four Gateway Center, 8th Floor, 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxxx 00000, Attention: Xxxx Xxxxx, or such other address as may be
designated by the Seller to the Purchaser in writing, or, if to the Additional
Party, addressed to the Additional Party at Four Gateway Center, 8th Floor, 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx Xxxxxx, or such
other address as may be designated by the Additional Party to the Purchaser in
writing.
9
SECTION 10. Miscellaneous. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged or terminated except by a writing
signed by a duly authorized officer of the party against whom enforcement of
such change, waiver, discharge or termination is sought to be enforced. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 11. Characterization. The parties hereto agree that it is their
express intent that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans 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 PSSFC to the Trustee of its interests in the
Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an
assignment of any security interest created hereunder; (d) the possession by the
Purchaser of the related Mortgage Notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the New Jersey Uniform Commercial
Code, the New York Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction; and (e) notifications to, and
acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 12. 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 or the Additional Party delivered pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser, notwithstanding any restrictive
or qualified endorsement or assignment in respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be
10
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 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 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, each of the
Purchaser, the Seller and the Additional Party 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, 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, the Purchaser and the
Additional Party each agrees to execute and deliver such instruments and take
such further actions as any other party hereto 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 respective rights and obligations
of the Seller and the Additional Party under this Agreement shall not be
assigned by the Seller or the Additional Party, as applicable, without the prior
written consent of the Purchaser, except that any person into which the Seller
or the Additional Party may be merged or consolidated, or any person resulting
from any merger, conversion or consolidation to which the Seller or the
Additional Party is a party, or any person succeeding to all or substantially
all of the business of the Seller or the Additional Party, shall be the
successor to the Seller or the Additional Party, as applicable, hereunder. In
connection with its transfer of the Mortgage Loans to the Trust as contemplated
by the recitals hereto, PSSFC 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, 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. Information. The Seller and the Additional Party shall each
provide the Purchaser with such information about itself, the Mortgage Loans and
the underwriting and servicing procedures applicable to the Mortgage Loans as is
(i) customary in commercial mortgage loan
11
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document.
SECTION 18. Cross-Collateralized Mortgage Loans. Notwithstanding anything
herein to the contrary, it is hereby acknowledged that certain groups of
Mortgage Loans are, in the case of each such particular group of Mortgage Loans
(each, a "Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. Each Cross-collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
SECTION 19. 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]
12
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By: /s/ XXXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Principal
PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC
By: /s/ XXXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Principal
PRUDENTIAL SECURITIES SECURED FINANCING
CORPORATION
By: /s/ XXXX XXXXXX
--------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached Schedule]
A-1
MORTGAGE LOAN SCHEDULE
------------------------------------------------------------------------------------------------------------------------------------
CONTROL # LOAN ID PROPERTY NAME STREET ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
1 6104258 RREEF Portfolio
1.a Xxxxxxxx Heights Corporate Center 10790, 10805 & 00000 Xxxxxx Xxxxxxxx Xxxx
1.b Palo Verde Portfolio Various Addresses
1.c Delaware Industrial Portfolio Various Addresses
0.x Xxxxxxx Xxxxx Xxxxxxxx Xxxx Various Addresses
1.e Coppell Business Center II 1405, 1421, 1441 & 0000 Xxxxx Xxxxxxxx Xxxx
1.f Plano Tech Center 800, 900 & 0000 Xxxxx Xxxx
0.x Xxxxxx Xxxxxx Xxxxxxx 0000 Xxxxxx Xxxx
0.x Xxxxxxxxx xx Xxxx 0000-0000 Glades Road
1.I The Reserve at Lenox Park 0000 Xxxx Xxxxx Xxxxx
2 6104039 Two Chase Xxxxxxxxx Xxxxx 00 Xxxx Xxxxxx
3 6104053 Towerpoint Resort Mobile Home Park 0000 Xxxx Xxxx Xxxxxx
0 0000000 Good Life Mobile Home Park 0000 Xxxx Xxxx Xxxxxx
5 6103804 IDT Building 000 Xxxxx Xxxxxx
6 6104237 Ohana Waikiki Tower 000 Xxxxxx Xxxxxx
7 6104076 Anchorage Business Park 000 X. Xxxxx Xxxx and 4400-4730 Business Park Boulevard
8 6104183 Anchorage Distribution Center 5311 and 0000 Xxxxxxxxx Xx, 0000 X 00 Xxx
9 6104152 Gables Stonebridge Apartments 0000 Xxxxxxx Xxxxx Xxxx
10 6104238 Outrigger Portfolio
10.a Ohana Reef Lanai Hotel 225 Saratoga Road
10.b Ohana Royal Islander Hotel 0000 Xxxxx Xxxx
10.c Outrigger Islander Waikiki Hotel 000 Xxxxxx Xxxxxx
11 6104030 000 Xxxxx Xxxxx Xxxxxx 500 South Front Street
12 6104145 Lexmark Distribution Center 0000 X. 0xx Xxxxxx Xxxx
00 0000000 Xxxxxxxxx Gables Apartments 000 Xxxxxx Xxxxxx Xxxx
14 6104235 Oak Lawn Center 0000 Xxxx 00xx Xxxxxx
15 6104153 Gables Hendersonville Apartments 0000 Xxxx Xxxx Xxxxxx
16 6103942 Xxxxxxxxx Xxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxx Xxxxxxxxx
17 6104125 Scharrington Square 0000-0000 X. Xxxxxxxxxx Xxxx
18 6103980 Candlewood Suites - Xxxxxxxx 00 Xxxxx Xxxxx
19 6104170 Ligand Pharmaceuticals Building 00000 Xxxxxxx Xxxxxx Xxxxx
20 6104128 Xxxxxxx Xxxx Xxxxxx Xxxxxxxx 0000 Xxxxxxxx Xxxxxxx
21 6103889 Xxxxxxxxxxx Apartments 0000 00xx Xxxxxx XX
22 6104131 Emerald Cove Apartments 0000 Xxxxxxxxx Xxxxx
23 6104126 Azalea Building 0000 Xxxxxxxx Xxxx
24 6104010 Xxxxxx Xxxxxxx Court One Xxxxxx Xxxxxxx Court
25 6104234 Xxxxxxx Xxxx Xxxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxx Xxxx
26 6104120 Xxxxx Apparel Group Building 250 Xxxxxxxxxxx Circle
27 6104033 Palms Plaza 00000 Xxxxxxxxx Xxxx
28 6104022 King's Mill Apartments 0000 Xxxxx Xxxxx Xxxxx
29 6104134 The Sterling Building 0000 Xxxxxx Xxxxxx
30 6104058 Xxxxxxxx Avenue Medical Xxxxxx 000, 000, 000, 000X & 000 Xxxxxxxx Xxxxxx
31 6104075 Xxxxxxx Xxxxx 000 & 000 Xxxxxxxxxx Xxxxxxx
32 6104105 Amweld Industrial Portfolio
32.a Amweld Property - Garrettsville 0000 Xxxxxx Xxxxx
32.b Foremost Duct, Inc. 00000 Xxxx Xxxxx Xxxx Xxxx
32.c Amweld Property - Niles 000 Xxxxx Xxxxxx
33 6104169 Xxxx Xxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxx Xxxx
34 6104241 Sawgrass Promenade 0000 Xxxxx Xxxxxxxx Xxxxx
35 6104242 Xxxx Xxxxxxx Xxxxxx 00000 Xx. Xxxxxxx Xxxxxxxxx
36 6104130 Candlewood Suites - Bellevue 15805 Southeast 37th Street
37 0000000 Dakota Bank Building Phase I & II 00X-00X Xxxxx Xxxxxxxx Xxxxxx
38 6104166 Xxxx Xxxxx Xxxxxxx Xxxxx 00000 Xxxxxx Xxxxx Xxxx
39 6104099 00-00 Xxxxxx Xxxx Xxxxx 00-00 Xxxxxx Xxxx Drive
40 6104172 000 Xxxxx Xxxxxxx Xxxxx 000 Xxxxx Xxxxxxx Drive
41 6104225 Canyon Creek Apartments 000 Xxxxx Xxxxxxx Xxxx
42 6104032 Xxxxxxxxx Xxxxx 000 Xxxx Xxxx
43 6104177 Olympus America Building 0000 Xxxxxxxx Xxxxxx
44 6104092 Shoppes at Atlantis 0000 Xxxxx Xxxxxxxx Xxxxxx
45 6104132 Jewelry Exchange Center 0000-0000 Xxxxx Xxxxxxxxxx Xxxxx
46 6104176 Ten Xxx Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx
47 6104148 Crown Point Apartments 000 Xxxxx Xxxxx Xxxxxx
48 6104167 Simi Valley Business Park 0000-0000 Xxxx Xxxxxxxxxx Xxxxxx
49 6104182 River Xxxx Xxxxxxxx Xxxxxx 000 Xxxxx 0xx Xxxxxx
50 6104000 Xxxxxx Packaging Building 0000 Xxxxxxxxx Xxxx
51 6104168 Xxxxxxxx Xxxxxxxx Xxxxxx 000-000 Xxxxxxxxx Xxx
52 6104107 0000 Xxx Xxxxxxx Xxxxxx 6399 San Xxxxxxx Avenue
53 6103999 South Post Oak Shopping Center 10800 - 00000 Xxxxx Xxxx Xxx Xxxx
54 6104180 JACO Xxxxxxx Xxxxxx Xxxxxxxx - Xxxxxx 000 - 000 Xxxxxxxx Xxxx
55 6104269 JACO Medical Office Building - Savannah 000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
56 6104052 The Market at Xxxxxxx'x Inlet 736 - 000 Xxxx Xxxxxx
57 6104121 Algon Gardens Apartments 0000-0000 Xxxxx Xxxxxx
58 6104201 Stone Creek Apartments 0000 Xxxxxxxxxx Xxxxx
59 6104175 ACPR1
59.a Xxxxxx Circle 0000-0000 Xxxxxx Xxxxxx
59.b Xxxxxxx Place 16912-16920 Gridley Place
59.c Arctic Circle 13000-13006 Arctic Circle
59.x Xxxxxxxxx 00000 Xxxxxxxxx Xxx. and 00000 Xxxxxxxxx Xxx.
60 6104171 San Xxxxx and Peninsula Medical Center 0000 X. 0xx Xxxxxx
61 6104088 EZ Storage - Xxxxxxxxx 0000 XxXxxxx Xxxxxxxxx
62 6104110 The Offices at Sweetwater 4645-4665 Sweetwater Boulevard
63 6104055 Windward Town and Country Plaza - Phase II 000 Xxxxxxx Xxxxx
64 6104074 Sunroad Valley Center 0000 Xxxxxx Xxx Xxx Xxxxx
00 0000000 Royal Sheridan Apartments 0000 Xxxxxxxx Xxxxxx
66 6104146 Acropolis at Xxxxxxxxx Xxxxxxx 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx H
67 6104073 FedEx Building (5) 0 Xxxxxx Xxxxxx
68 6103613 Xxxxxx Self Storage 000 Xxxx Xxxxxx Xxxx
69 6104112 St. Louis Apartments 3350 and 0000 Xxxx Xx. Xxxxx Xxxxxx
70 6104216 Wood Ridge Apartments 0000 Xxxxxx Xxxxx
71 6104008 Xxxxxxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxxxxxxxx Xxxxxx Xxxxx
72 6103880 Weston Professional Centre 0000-0000 Xxxxx Xxxxxxxx Xxxxxxx
73 6104179 00 Xxxxxxx Xxxxxx Xxxxxxxx 00 Xxxxxxx Xxxxxx
74 6104197 Heritage Greens Apartments 0000 Xxxxxxxxxx Xxxxx
75 6104136 Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxx 0000 XX Xxxxxxx 00 Xxxx
76 6103964 Xxxxxxx Place Shopping Center 14415-14445 Xxxxxxx Xxx/0000-0000 Xxx Xxxx Xxxxxxxxx
77 6104220 Water's Edge Apartments 0000 Xxxxx Xxxx
78 6104155 Huntington Hills 0000 Xxx Xxxxx
79 6104174 St. Joseph's Professional Building 2031 West Alameda Avenue
80 6104028 Luhia Center I & II 74-5605 & 00-0000 Xxxxx Xxxxxx
81 6104144 West Xxxxxx Xxxxx Xxxxxx Xxxxxxxx 000 Xxxx Xxxxxx Xxxxx
82 6104019 Xxxxx Xxx Xxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxx
83 6104038 Twin Marck and Northdale Portfolio
83.a Twin Marck Apartments 000-000 Xxxxxxx Xxxx
83.b Xxxxxxxxx Xxxx Xxxxxxxxxx 000 Xxxxxxxxxx Xxxx
84 6104139 Georgian Apartments 0000 Xxxxxxxx Xxxxx
85 6104084 North Hill Apartments 9828-9838 X.X. 00 Xxxxxx
00 0000000 Staples 000-000 Xxxx Xxxx Xxxx
87 6104070 Xxxx Xxxxxx Xxxxxxxx Xxxxxx 0 Xxxxxx Xxxx
88 6104178 Litt Family Trust 00000 Xxxxxxx Xxxxxxxxx
89 6104040 Xxxxxxx Xxxxxx XX Xxxxxxxxxx 0000 Xxxxx Xxxxx
90 6104109 Xxxxxx Place 0000 Xxxxxx Xxxxx
91 6104200 Davidson Plaza 000 Xxxxxxx Xxxxxxxxx
92 6104240 000-000 Xxxx Xxxxx 000-000 Xxxx Xxxxx
93 0000000 Bank of America Portfolio
93.a Bank of America Building 0000 X. Xxxxxxxxxx Xxxxx
93.b 2209 - 0000 Xxxxxxxxx 00xx Xxxxxx 2209 - 0000 Xxxxxxxxx 00xx Xxxxxx
94 6104214 Xxx Xxxxx Xxxxxxxxxx 0000 Xxxx Xxxx Xxxxx
95 6104104 Shops at Pinecroft 0000 Xxxx Xxxxxxxxx Xxxxx
96 6104205 Xxxxxxxx Xxxxxx Xxxxxxxx 000 Xxxx Xxxx Xxxx Xxxx
00 6104210 Xxxxxxxxx Xxxx Xxxxxxxxxx 0000 Xxxxxx Xxxx
98 6104211 Xxxxx Xxxx Xxxxxxxxxx 0000 Xx. Xxxx'x Xxxx
99 6104209 Gentian Oaks Apartments 0000 Xxxxx Xxxx
100 6104067 Xxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxxxxx Xxxx
101 6104289 CVS Drugstore 000 Xxxx Xxxx Xxxxxx
102 6104086 El Paso Self Storage 0000 Xxxxx Xxxx
103 6104184 Walgreens Pharmacy - Newport News 0000 Xxxxxxxxx Xxxxxx
104 6104096 Xxxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxx
105 6104124 Paoli Xxxx Xxxxxxxx Xxxxxx 00-00 Xxxxxxxxx Xxxxxx
106 6104043 Country Crossing Apartments 0000 Xxxxxxxxx Xxxx
107 6103911 Xxxxx Xxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxx
108 6103962 Old Fort Crossing 000-000 Xxxx Xxxxxx Xxxx
109 6104087 Yosemite Self Storage Facility 000 Xxxxxxxxx Xxxxx
110 6104196 Xxxx Xxxxxxxx Xxxxx 00000 Xxxx Xxxxxxxx Xxxxx
111 6104003 Gateway Center 00 Xxxxxx Xxxxxx
112 6104122 La Fontana Apartments 5641 - 0000 XX 00xx Xxxxxx
113 6104173 St. Joseph's of Tustin 0000 Xxxxxx Xxxxxxxxx
114 6103907 Xxxxx Xxxx Xxxxxxxx Xxxxxx 0000 Xxxx Xxxx 2218
115 6103955 00 Xxxxxxxxx Xxxx Xxxxxxxx 00 Xxxxxxxxx Xxxx
116 6103910 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxxxxx
117 6103909 Highland Lakes Center 0000 Xxxxxxx 000 Xxxxx
118 6104097 Xxx Xxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxx Xxxxxx
119 6103908 Port Xxxxxx Shopping Center 0000 Xxxx Xxxx Xxxxxxx
-------------------------------------------------------------------------------------------------------------------------------
ORIGINAL LOAN CUT-OFF MONTHLY MORTGAGE ORIGINAL
CONTROL # CITY STATE ZIP CODE BALANCE ($) BALANCE ($) PAYMENTS ($) RATE TERM
-------------------------------------------------------------------------------------------------------------------------------
1 91,000,000 91,000,000 503,154 6.635% 120
1.a Xxx Xxxxx XX 00000
1.b Phoenix & Tempe AZ Various
1.c Various DE Various
1.d Anaheim CA Various
1.e Xxxxxxx XX 00000
1.f Xxxxx XX 00000
1.g Xxxxxx Xxxxxx XX 00000
1.h Xxxx Xxxxx XX 00000
1.I Xxxxxxx XX 00000
2 Xxx Xxxx XX 00000 70,000,000 69,709,807 498,107 7.680% 120
3 Xxxx XX 00000 20,235,000 20,235,000 146,227 7.840% 126
4 Xxxx XX 00000 19,665,000 19,665,000 142,108 7.840% 126
5 Xxxxxx XX 00000 30,300,000 29,965,904 252,205 8.900% 240
6 Xxxxxxxx XX 00000 22,950,000 22,924,256 171,094 7.600% 000
0 Xxxxxxxxx XX 00000 12,012,000 11,958,106 90,022 7.660% 000
0 Xxxxxxxxx XX 00000 10,758,000 10,694,460 84,405 7.660% 120
9 Xxxxxxx XX 00000 22,000,000 22,000,000 149,631 7.220% 120
10 20,750,000 20,726,724 154,693 7.600% 120
10.a Xxxxxxxx XX 00000
10.b Xxxxxxxx XX 00000
10.c Xxxxxxxx XX 00000
11 Xxxxxxxx XX 00000 19,150,000 19,078,070 142,255 8.130% 120
12 Xxxxxxx XX 00000 17,040,000 16,979,316 127,926 7.680% 120
13 Xxxxxxxxx XX 00000 15,200,000 15,200,000 103,382 7.220% 000
00 Xxx Xxxx XX 00000 14,975,000 14,975,000 103,276 7.360% 120
15 Xxxxxxxxxxxxxx XX 00000 14,900,000 14,900,000 101,341 7.220% 120
16 Xxxxxxxxx XX 00000 15,200,000 14,823,000 112,938 8.270% 120
17 Xxxxxxxxxx XX 00000 13,475,000 13,436,969 97,003 7.800% 120
18 Xxxxxxxx XX 00000 13,400,000 13,305,184 110,532 8.790% 120
19 Xxx Xxxxx XX 00000 13,720,000 13,126,771 99,211 7.150% 000
00 Xxxxx XX 00000 13,000,000 12,961,812 91,790 7.600% 120
21 Xxxxxxxxxx, X.X. XX 00000 12,400,000 12,400,000 91,245 7.840% 120
22 Xxxxxxxxx XX 00000 12,400,000 12,369,688 86,872 7.520% 120
23 Xxxxxxxxx XX 00000 12,000,000 11,971,838 86,052 7.760% 120
24 Xxx Xxxxxxxxx XX 00000 12,000,000 11,950,679 87,885 7.980% 84
25 Xxxxxxx XX 00000 11,590,000 11,590,000 79,931 7.360% 120
26 Xxxxxxx XX 00000 10,000,000 9,969,432 69,238 7.400% 84
27 Xxxx Xxxxx XX 00000 9,750,000 9,718,584 71,067 7.930% 120
28 Xxxxxxxxx XX 00000 9,700,000 9,700,000 72,370 7.990% 120
29 Xxxxxxxxx XX 00000 9,250,000 9,223,894 66,588 7.800% 120
30 Xxx Xxxxxxxx XX 00000 9,250,000 9,213,768 67,487 7.940% 120
31 Xxxxxxxxxxxxx XX 00000 9,200,000 9,147,828 74,058 7.490% 120
32 8,850,000 8,803,145 74,577 8.100% 120
32.a Xxxxxxxxxxxxx XX 00000
32.b Xxxxxxxxxx XX 00000
32.c Xxxxx XX 00000
33 Xxxxxxxxx XX 00000 9,100,000 8,630,057 64,317 7.000% 000
00 Xxxxxxxxx Xxxxx XX 00000 8,500,000 8,500,000 57,697 7.200% 120
35 Xxxx Xxxxx XX 00000 8,500,000 8,500,000 57,697 7.200% 120
36 Xxxxxxxx XX 00000 8,500,000 8,465,879 67,587 8.350% 120
37 Xxxxx XX 00000 8,000,000 7,994,216 56,651 7.630% 120
38 Xxxxxxx Xxxxx XX 00000 8,100,000 7,709,766 58,051 7.050% 120
39 Xxxxxxx XX 00000 7,700,000 7,700,000 57,003 7.520% 120
40 Xxxxxxx Xxxxx XX 00000 7,830,000 7,452,774 56,116 7.050% 120
41 Xxxxxx XX 00000 7,400,000 7,389,616 49,880 7.130% 120
42 Xxxxxxxxx XX 00000 7,500,000 7,207,137 53,151 8.010% 120
43 Xxx Xxxx XX 00000 7,162,427 6,846,234 54,589 7.740% 000
00 Xxxxxxxx XX 00000 3,300,000 3,289,073 25,034 8.120% 120
45 Xxxxxxx XX 00000 3,200,000 3,191,398 23,678 7.900% 120
46 Xxxxxxxx XX 00000 6,601,000 6,316,424 47,819 7.170% 120
47 Xxxxxxx XX 00000 6,200,000 6,195,399 43,351 7.500% 120
48 Xxxx Xxxxxx XX 00000 6,425,000 6,095,634 45,862 7.110% 121
49 Xxxxxxxxxx XX 00000 6,060,000 6,032,417 45,059 7.570% 120
50 Xxxxxxxxxx Xxxxxxxx XX 00000 5,857,500 5,836,647 44,501 8.370% 120
51 Xxxx Xxxxxx XX 00000 6,035,000 5,725,755 43,079 7.110% 121
52 Xxx Xxxx XX 00000 5,600,000 5,560,585 46,111 7.790% 000
00 Xxxxxxx XX 00000 5,100,000 5,086,340 37,636 8.060% 120
54 Xxxxxx XX 00000 3,050,000 3,050,000 22,041 7.840% 120
55 Xxxxxxxx XX 00000 1,950,000 1,950,000 14,092 7.840% 120
56 Xxxxxxx'x Xxxxx XX 00000 5,010,000 4,995,860 36,066 7.800% 120
57 Xxxxxxxxxxxx XX 00000 5,000,000 4,987,902 35,235 7.580% 120
58 Xxxxxxx XX 00000 4,785,000 4,785,000 32,805 7.300% 120
59 5,216,250 4,707,886 44,446 7.110% 000
00.x Xxxxx Xxxx XX 00000
59.b Xxxxxxxx XX 00000
59.c Xxxxx Xx Xxxxxxx XX 00000
59.d Xxxxx Xx Xxxxxxx XX 00000
60 Xxx Xxxxx XX 00000 4,950,000 4,699,267 35,376 7.020% 000
00 Xxxxxxxxx XX 00000 4,600,000 4,580,236 35,291 7.930% 120
62 Xxxxxxxxx XX 00000 4,540,000 4,527,135 32,619 7.780% 120
63 Xxxxxx XX 00000 4,500,000 4,495,307 34,881 8.050% 84
64 Xxx Xxxxx XX 00000 4,312,500 4,298,417 31,254 7.870% 000
00 Xxxxxxxxx XX 00000 4,250,000 4,243,248 30,012 7.400% 000
00 Xxxxxxxxxxx XX 00000 4,000,000 3,997,008 27,859 7.460% 000
00 Xxxxxxx XX 00000 3,800,000 3,790,066 28,361 8.180% 120
68 Xxx Xxxx XX 00000 3,800,000 3,787,125 29,405 8.030% 120
69 Xxx Xxxxx XX 00000 3,750,000 3,737,754 27,177 7.870% 000
00 Xxxxxx XX 00000 3,700,000 3,695,386 26,125 7.600% 000
00 Xxxxxxxx XX 00000 3,600,000 3,588,270 26,115 7.880% 120
72 Xxxxxx XX 00000 3,500,000 3,479,452 26,986 8.530% 000
00 Xxxxx Xxxxxxx XX 00000 3,450,000 3,450,000 26,014 7.730% 120
74 Xxxxxxx XX 00000 3,400,000 3,394,599 24,010 7.400% 120
75 Xxxxxxxxx XX 00000 3,357,500 3,347,637 23,706 7.600% 120
76 Xxx Xxxx XX 00000 3,300,000 3,287,051 24,699 8.210% 000
00 Xxxx X'Xxxxx XX 00000 3,200,000 3,197,454 21,613 7.150% 120
78 Xxxx XX 00000 3,160,000 3,153,247 23,045 7.350% 120
79 Xxxxxxx XX 00000 3,267,000 3,109,605 23,414 7.050% 000
00 Xxxxxx-Xxxx XX 00000 2,950,000 2,920,726 26,440 8.350% 120
81 Xxxxxx XX 00000 2,900,000 2,894,814 23,504 7.580% 120
82 Xxxxxxxxxx XX 00000 2,800,000 2,773,302 24,246 8.470% 240
83 2,568,000 2,557,808 18,629 7.880% 120
83.a Xxxxxx XX 00000
83.b Xxxxxxx XX 00000
84 Xxxxxx XX 00000 2,535,000 2,528,621 17,465 7.350% 000
00 Xxxxx XX 00000 2,400,000 2,397,038 17,012 7.640% 120
86 Xxxxxxxxxx XX 00000 2,400,000 2,395,797 19,703 7.750% 000
00 Xxxxxxx XX 00000 2,400,000 2,393,428 17,527 7.950% 000
00 Xxxxxxx Xxxx XX 00000 2,492,926 2,378,850 18,439 7.400% 120
89 Xxxxx XX 00000 2,350,000 2,342,646 17,342 8.060% 120
90 Xxxxxxxxxx XX 00000 2,340,000 2,338,263 16,362 7.500% 120
91 Xxxxxxxxx XX 00000 2,300,000 2,287,475 19,024 7.850% 120
92 Xxxxxx XX 00000 2,200,000 2,197,003 15,008 7.250% 120
93 2,100,000 2,098,115 15,220 7.620% 120
93.a Xxxxxxxxxx XX 00000
93.b Ft. Xxxxxxxxxx XX 00000
94 Xxxxx Xxxxxxxxxx XX 00000 2,100,000 2,097,348 14,755 7.550% 000
00 Xxxxxxxxx XX 00000 2,100,000 2,088,356 17,162 7.690% 120
96 Xxxxxxxxxx XX 00000 2,000,000 2,000,000 14,741 7.470% 120
97 Xxxxxxxx XX 00000 2,075,000 2,073,413 14,296 7.350% 120
98 Xxxxxxxx XX 00000 1,950,000 1,948,509 13,435 7.350% 120
99 Xxxxxxxx XX 00000 1,875,000 1,873,566 12,918 7.350% 000
000 Xxxxxxx Xxxxxxxx XX 00000 1,775,000 1,769,138 12,802 7.820% 120
101 Xxxxxxxxxxxxx XX 00000 1,750,000 1,750,000 12,033 7.330% 000
000 Xxxx Xxxxxx XX 00000 1,690,000 1,682,609 12,843 7.820% 000
000 Xxxxxxx Xxxx XX 00000 1,630,000 1,626,678 12,152 7.600% 120
104 Xxxxxx XX 00000 1,600,000 1,595,224 11,209 7.520% 000
000 Xxxxx XX 00000 1,575,000 1,569,517 11,990 7.840% 120
106 Xxxxxxxxxx XX 00000 1,550,000 1,539,767 13,265 8.310% 000
000 Xxxx Xxxxxxx XX 00000 1,505,000 1,497,368 11,012 7.970% 120
108 Xxxxxxxxxxxx XX 00000 1,500,000 1,495,851 10,902 7.900% 120
109 Xxxxxxx XX 00000 1,500,000 1,493,440 11,399 7.820% 120
110 Xxxxxxx XX 00000 1,450,000 1,450,000 10,338 7.700% 120
000 Xxx Xxxxx XX 00000 1,400,000 1,396,450 10,597 8.330% 120
112 Xxxx Xxxxxxxxxx XX 00000 1,275,000 1,271,241 9,198 7.570% 000
000 Xxxxxx XX 00000 1,333,125 1,268,899 9,554 7.050% 000
000 Xxxxxxxx XX 00000 1,220,000 1,213,814 8,926 7.970% 120
000 Xxxxxxx XX 00000 1,200,000 1,195,728 9,117 8.370% 000
000 Xxxxx XX 00000 1,130,000 1,123,729 8,268 7.970% 120
000 Xxxxxx Xxxxx XX 00000 1,100,000 1,094,422 8,048 7.970% 120
118 Xxxxxxxxxx XX 00000 1,000,000 996,955 6,937 7.420% 120
000 Xxxx Xxxxxx XX 00000 845,000 839,904 6,183 7.970% 120
------------------------------------------------------------------------------------------------------------------
ORIGINAL REMAINING LOAN
REMAINING AMORTIZATION AMORTIZATION CROSS- CROSS-COLLATERALIZED ADMINISTRATIVE
CONTROL # TERM TERM TERM COLLATERALIZED PROPERTIES COST RATE (%)
------------------------------------------------------------------------------------------------------------------
1 120 0 0 No 0.0523%
1.a
1.b
1.c
1.d
1.e
1.f
1.g
1.h
1.I
2 114 360 354 No 0.0523%
3 121 360 360 Yes 6104085 0.0523%
4 121 360 360 Yes 6104053 0.0523%
5 227 300 287 No 0.0523%
6 119 300 299 No 0.0523%
7 116 300 296 Yes 6104183 0.0523%
8 116 264 260 Yes 6104076 0.0523%
9 116 360 360 No 0.0823%
10 119 300 299 No 0.0523%
10.a
10.b
10.c
11 114 360 354 No 0.0523%
12 117 300 297 No 0.0523%
13 116 360 360 No 0.0823%
14 120 360 360 No 0.0523%
15 116 360 360 No 0.0823%
16 111 342 342 No 0.0523%
17 116 360 356 No 0.1023%
18 112 300 292 No 0.1023%
19 87 293 260 No 0.0523%
20 116 360 356 No 0.0523%
21 117 336 336 No 0.1023%
22 117 360 357 No 0.0923%
23 117 360 357 No 0.0823%
24 78 360 354 No 0.0523%
25 120 360 360 No 0.0523%
26 80 360 356 No 0.1023%
27 115 360 355 No 0.0823%
28 114 336 336 No 0.1023%
29 116 360 356 No 0.1023%
30 114 360 354 No 0.0823%
31 117 240 237 No 0.1023%
32 117 240 237 No 0.1023%
32.a
32.b
32.c
33 85 300 264 No 0.0523%
34 120 360 360 No 0.0823%
35 120 360 360 No 0.0823%
36 116 300 296 No 0.1023%
37 119 360 359 No 0.0523%
38 84 293 257 No 0.0523%
39 120 300 300 No 0.1023%
40 84 293 257 No 0.0523%
41 118 360 358 No 0.0523%
42 114 360 354 No 0.0523%
43 85 292 257 No 0.0523%
44 116 330 326 Yes 6104132 0.1023%
45 117 336 333 Yes 6104092 0.1023%
46 87 293 260 No 0.0523%
47 119 360 359 No 0.0823%
48 85 300 264 No 0.0523%
49 116 300 296 No 0.0523%
50 114 360 354 No 0.0823%
51 85 300 264 No 0.0523%
52 116 240 236 No 0.0523%
53 116 360 356 No 0.1023%
54 120 360 360 Yes 6104269 0.0523%
55 120 360 360 Yes 6104180 0.0523%
56 116 360 356 No 0.0523%
57 117 360 357 No 0.1023%
58 120 360 360 No 0.0523%
59 85 202 167 No 0.0523%
59.a
59.b
59.c
59.d
60 83 293 256 No 0.0523%
61 116 300 296 No 0.0523%
62 116 360 356 No 0.1023%
63 83 300 299 No 0.1023%
64 115 360 355 No 0.0523%
65 118 336 334 No 0.0523%
66 119 360 359 No 0.0523%
67 116 360 356 No 0.1023%
68 117 300 297 No 0.1023%
69 139 360 355 No 0.0723%
70 118 360 358 No 0.1023%
71 115 360 355 No 0.0523%
72 109 360 349 No 0.1023%
73 120 300 300 No 0.0523%
74 118 336 334 No 0.0523%
75 116 360 356 No 0.0823%
76 114 360 354 No 0.0523%
77 119 360 359 No 0.0523%
78 118 300 298 No 0.1023%
79 84 293 257 No 0.0523%
80 115 216 211 No 0.0523%
81 119 240 239 No 0.0923%
82 234 240 234 No 0.0523%
83 114 360 354 No 0.1023%
83.a
83.b
84 117 360 357 No 0.0523%
85 118 360 358 No 0.0523%
86 179 240 239 No 0.1023%
87 116 360 356 No 0.1023%
88 84 292 256 No 0.0523%
89 115 360 355 No 0.0523%
90 119 360 359 No 0.0523%
91 117 240 237 No 0.1323%
92 118 360 358 No 0.1023%
93 119 330 329 No 0.1023%
93.a
93.b
94 118 360 358 No 0.1023%
95 117 240 237 No 0.1023%
96 120 300 300 No 0.0523%
97 119 360 359 Yes 6104209 and 6104211 0.0523%
98 119 360 359 Yes 6104209 and 6104210 0.0523%
99 119 360 359 Yes 6104210 and 6104211 0.0523%
100 115 360 355 No 0.1023%
101 120 360 360 No 0.0523%
102 116 300 296 No 0.0523%
103 118 300 298 No 0.0523%
104 116 360 356 No 0.0523%
105 117 300 297 No 0.0823%
106 236 240 236 No 0.0523%
107 112 360 352 No 0.1023%
108 116 360 356 No 0.0823%
109 116 300 296 No 0.0523%
110 120 360 360 No 0.1023%
111 116 360 356 No 0.1023%
112 117 330 327 No 0.0523%
113 84 293 257 No 0.0523%
114 112 360 352 No 0.1023%
115 114 360 354 No 0.0923%
116 111 360 351 No 0.1023%
117 112 360 352 No 0.1023%
118 116 360 356 No 0.0523%
119 110 360 350 No 0.1023%
------------------------------------------------------------------------------------------------------------------------------------
INTEREST CALCULATION MATURITY ARD
CONTROL # (ACTUAL/360 OR 30/360) (1) DATE DATE FEE/LEASEHOLD DEFEASANCE PROVISION
------------------------------------------------------------------------------------------------------------------------------------
1 30/360 5/1/11 N/A Various N/A
1.a N/A N/A Fee N/A
1.b X/X X/X Xxx X/X
0.x X/X X/X Fee N/A
1.d N/A N/A Fee N/A
1.e N/A N/A Fee N/A
1.f X/X X/X Xxx X/X
0.x X/X X/X Fee N/A
1.h N/A N/A Fee N/A
1.I N/A N/A Fee N/A
2 Actual/360 11/1/10 N/A Fee L(31), D(85), O(4)
3 Actual/360 6/1/11 N/A Fee L(48), D(71), O(7)
4 Actual/360 6/1/11 N/A Fee L(48), D(71), O(7)
5 Actual/360 4/1/20 N/A Fee L(49), D or > YM or 1% (184), O(7)
6 Actual/360 4/1/11 N/A Both Fee Simple and Leasehold L(48), D(68), O(4)
7 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
8 Actual/360 1/1/11 N/A Leasehold L(48), D(68), O(4)
9 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
10 Actual/360 4/1/11 N/A Various L(48), D(68), O(4)
10.a N/A N/A Leasehold N/A
10.b N/A N/A Fee N/A
10.c N/A N/A Fee N/A
11 Actual/360 11/1/10 N/A Fee L(48), D(68), O(4)
12 Actual/360 2/1/11 N/A Fee L(28), D(88), O(4)
13 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
14 Actual/360 5/1/31 5/1/11 Fee L(25), D(91), O(4)
15 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
16 Actual/360 8/1/10 N/A Fee L(36), D(80), O(4)
17 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
18 Actual/360 9/1/10 N/A Fee L(48), D(65), O(7)
19 Actual/360 7/13/08 N/A Fee L(47), YM(10), D or YM(59), O(4)
20 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
21 Actual/360 2/1/11 N/A Fee L(27), D(89), O(4)
22 Actual/360 2/1/11 N/A Fee L(48), D(68), O(4)
23 Actual/360 2/1/11 N/A Fee L(48), D(68), O(4)
24 30/360 11/1/07 N/A Fee L(48), D(32), O(4)
25 Actual/360 5/1/31 5/1/11 Fee L(25), D(91), O(4)
26 Actual/360 1/1/31 1/1/08 Leasehold L(29), D(51), O(4)
27 Actual/360 12/1/10 N/A Fee L(48), D(68), O(4)
28 Actual/360 11/1/10 N/A Fee L(48), D(68), O(4)
29 Actual/360 1/1/11 N/A Fee L(48), D(65), O(7)
30 Actual/360 11/1/10 N/A Fee L(48), D(68), O(4)
31 Actual/360 2/1/11 N/A Fee L(27), D(89), O(4)
32 Actual/360 2/1/21 2/1/11 Various L(48), D(68), O(4)
32.a N/A N/A Fee N/A
32.b N/A N/A Fee N/A
32.c N/A N/A Fee N/A
33 30/360 5/11/08 N/A Fee N/A
34 Actual/360 5/1/11 N/A Fee L(48), D(68), O(4)
35 Actual/360 5/1/11 N/A Fee L(48), D(68), O(4)
36 Actual/360 1/1/11 N/A Fee L(48), D(65), O(7)
37 Actual/360 4/1/31 4/1/11 Fee L(26), D(90), O(4)
38 Actual/360 4/22/08 N/A Fee L(61), D(54), O(5)
39 Actual/360 5/1/11 N/A Fee L(48), D(68), O(4)
40 Actual/360 4/22/08 N/A Fee N/A
41 Actual/360 3/1/11 N/A Fee L(48), D(68), O(4)
42 Actual/360 11/1/30 11/1/10 Fee L(36), D(80), O(4)
43 Actual/360 6/1/08 N/A Fee N/A
44 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
45 Actual/360 2/1/11 N/A Fee L(48), D(68), O(4)
46 Actual/360 7/17/08 N/A Fee N/A
47 Actual/360 4/1/11 N/A Fee L(48), D(68), O(4)
48 30/360 5/11/08 N/A Fee N/A
49 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
50 Actual/360 11/1/30 11/1/10 Fee L(48), D(68), O(4)
51 30/360 5/11/08 N/A Leasehold N/A
52 Actual/360 1/1/11 N/A Fee L(60), D(56), O(4)
53 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
54 Actual/360 5/1/11 N/A Fee L(48), D(68), O(4)
55 Actual/360 5/1/11 N/A Fee L(48), D(68), O(4)
56 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
57 Actual/360 2/1/11 N/A Fee L(36), D(80), O(4)
58 Actual/360 5/1/31 5/1/11 Fee N/A
59 Actual/360 5/15/08 X/X Xxxxxxx X/X
00.x X/X X/X Fee N/A
59.b N/A N/A Fee N/A
59.c N/A N/A Fee N/A
59.d N/A N/A Fee N/A
60 Actual/360 4/1/08 N/A Fee L(62), D(53), O(5)
61 Actual/360 1/1/11 N/A Fee N/A
62 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
63 Actual/360 4/1/08 N/A Leasehold N/A
64 Actual/360 12/1/10 N/A Fee L(48), D(68), O(4)
65 Actual/360 3/1/11 N/A Fee L(48), D(68), O(4)
66 Actual/360 4/1/11 N/A Fee L(48), D(68), O(4)
67 Actual/360 1/1/31 1/1/11 Fee L(48), D(68), O(4)
68 Actual/360 2/1/11 N/A Fee N/A
69 Actual/360 12/1/12 N/A Fee N/A
70 Actual/360 3/1/11 N/A Fee L(48), D(68), O(4)
71 Actual/360 12/1/10 N/A Fee L(48), D(68), O(4)
72 Actual/360 6/1/30 6/1/10 Fee L(47), D(66), O(7)
73 Actual/360 5/1/11 N/A Fee L(48), D(68), O(4)
74 Actual/360 3/1/11 N/A Fee L(48), D(68), O(4)
75 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
76 30/360 11/1/10 N/A Fee L(35), D(81), O(4)
77 Actual/360 4/1/11 N/A Fee L(48), D(68), O(4)
78 Actual/360 3/1/11 N/A Fee L(48), D(68), O(4)
79 Actual/360 4/22/08 N/A Fee L(61), D(54), O(5)
80 Actual/360 12/1/10 N/A Leasehold L(48), D(68), O(4)
81 Actual/360 4/1/21 4/1/11 Fee L(26), D(90), O(4)
82 Actual/360 11/1/20 N/A Fee N/A
83 Actual/360 11/1/10 N/A Various L(48), D(68), O(4)
83.a N/A N/A Fee N/A
83.b N/A N/A Fee N/A
84 Actual/360 2/1/11 N/A Fee L(48), D(68), O(4)
85 Actual/360 3/1/11 N/A Fee L(48), D(68), O(4)
86 Actual/360 4/1/16 N/A Leasehold L(26), D(150), O(4)
87 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
88 Actual/360 4/22/08 N/A Fee N/A
89 Actual/360 12/1/10 N/A Fee L(48), D(68), O(4)
90 Actual/360 4/1/11 N/A Fee L(48), D(68), O(4)
91 Actual/360 2/1/11 N/A Fee L(48), D(68), O(4)
92 Actual/360 3/1/11 N/A Fee L(48), D(68), O(4)
93 Actual/360 4/1/11 N/A Various L(48), D(68), O(4)
93.a N/A N/A Fee N/A
93.b N/A N/A Fee N/A
94 Actual/360 3/1/11 N/A Fee L(48), D(68), O(4)
95 Actual/360 2/1/11 N/A Fee L(27), D(89), O(4)
96 Actual/360 5/1/11 N/A Fee L(48), D(68), O(4)
97 Actual/360 4/1/11 N/A Fee L(48), D(68), O(4)
98 Actual/360 4/1/11 N/A Fee L(48), D(68), O(4)
99 Actual/360 4/1/11 N/A Fee L(48), D(68), O(4)
100 Actual/360 12/1/10 N/A Fee L(48), D(68), O(4)
101 Actual/360 5/1/31 5/1/11 Fee L(48), D(68), O(4)
102 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
103 Actual/360 3/1/11 N/A Fee L(48), D(68), O(4)
104 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
105 Actual/360 2/1/11 N/A Fee L(48), D(68), O(4)
106 Actual/360 1/1/21 N/A Fee N/A
107 Actual/360 9/1/10 N/A Fee N/A
108 Actual/360 1/1/11 N/A Fee L(47), D(69), O(4)
109 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
110 Actual/360 5/1/11 N/A Fee L(48), D(68), O(4)
111 Actual/360 1/1/11 N/A Fee L(47), D(72), O(1)
112 Actual/360 2/1/11 N/A Fee L(48), D(68), O(4)
113 Actual/360 4/22/08 N/A Fee L(61), D(54), O(5)
114 Actual/360 9/1/10 N/A Fee N/A
115 Actual/360 11/1/30 11/1/10 Fee L(48), D(68), O(4)
116 Actual/360 8/1/10 N/A Fee N/A
117 Actual/360 9/1/10 N/A Fee N/A
118 Actual/360 1/1/11 N/A Fee L(48), D(68), O(4)
119 Actual/360 7/1/10 N/A Fee N/A
-----------------------------------------------------
Control # Loan Seller
-----------------------------------------------------
1 Prudential Mortgage Capital Funding, LLC
1.a
1.b
1.c
1.d
1.e
1.f
1.g
1.h
1.I
2 Prudential Mortgage Capital Funding, LLC
3 Prudential Mortgage Capital Funding, LLC
4 Prudential Mortgage Capital Funding, LLC
5 Prudential Mortgage Capital Funding, LLC
6 Prudential Mortgage Capital Funding, LLC
7 Prudential Mortgage Capital Funding, LLC
8 Prudential Mortgage Capital Funding, LLC
9 Prudential Mortgage Capital Funding, LLC
10 Prudential Mortgage Capital Funding, LLC
10.a
10.b
10.c
11 Prudential Mortgage Capital Funding, LLC
12 Prudential Mortgage Capital Funding, LLC
13 Prudential Mortgage Capital Funding, LLC
14 Prudential Mortgage Capital Funding, LLC
15 Prudential Mortgage Capital Funding, LLC
16 Prudential Mortgage Capital Funding, LLC
17 Prudential Mortgage Capital Funding, LLC
18 Prudential Mortgage Capital Funding, LLC
19 Prudential Mortgage Capital Funding, LLC
20 Prudential Mortgage Capital Funding, LLC
21 Prudential Mortgage Capital Funding, LLC
22 Prudential Mortgage Capital Funding, LLC
23 Prudential Mortgage Capital Funding, LLC
24 Prudential Mortgage Capital Funding, LLC
25 Prudential Mortgage Capital Funding, LLC
26 Prudential Mortgage Capital Funding, LLC
27 Prudential Mortgage Capital Funding, LLC
28 Prudential Mortgage Capital Funding, LLC
29 Prudential Mortgage Capital Funding, LLC
30 Prudential Mortgage Capital Funding, LLC
31 Prudential Mortgage Capital Funding, LLC
32 Prudential Mortgage Capital Funding, LLC
32.a
32.b
32.c
33 Prudential Mortgage Capital Funding, LLC
34 Prudential Mortgage Capital Funding, LLC
35 Prudential Mortgage Capital Funding, LLC
36 Prudential Mortgage Capital Funding, LLC
37 Prudential Mortgage Capital Funding, LLC
38 Prudential Mortgage Capital Funding, LLC
39 Prudential Mortgage Capital Funding, LLC
40 Prudential Mortgage Capital Funding, LLC
41 Prudential Mortgage Capital Funding, LLC
42 Prudential Mortgage Capital Funding, LLC
43 Prudential Mortgage Capital Funding, LLC
44 Prudential Mortgage Capital Funding, LLC
45 Prudential Mortgage Capital Funding, LLC
46 Prudential Mortgage Capital Funding, LLC
47 Prudential Mortgage Capital Funding, LLC
48 Prudential Mortgage Capital Funding, LLC
49 Prudential Mortgage Capital Funding, LLC
50 Prudential Mortgage Capital Funding, LLC
51 Prudential Mortgage Capital Funding, LLC
52 Prudential Mortgage Capital Funding, LLC
53 Prudential Mortgage Capital Funding, LLC
54 Prudential Mortgage Capital Funding, LLC
55 Prudential Mortgage Capital Funding, LLC
56 Prudential Mortgage Capital Funding, LLC
57 Prudential Mortgage Capital Funding, LLC
58 Prudential Mortgage Capital Funding, LLC
59 Prudential Mortgage Capital Funding, LLC
59.a
59.b
59.c
59.d
60 Prudential Mortgage Capital Funding, LLC
61 Prudential Mortgage Capital Funding, LLC
62 Prudential Mortgage Capital Funding, LLC
63 Prudential Mortgage Capital Funding, LLC
64 Prudential Mortgage Capital Funding, LLC
65 Prudential Mortgage Capital Funding, LLC
66 Prudential Mortgage Capital Funding, LLC
67 Prudential Mortgage Capital Funding, LLC
68 Prudential Mortgage Capital Funding, LLC
69 Prudential Mortgage Capital Funding, LLC
70 Prudential Mortgage Capital Funding, LLC
71 Prudential Mortgage Capital Funding, LLC
72 Prudential Mortgage Capital Funding, LLC
73 Prudential Mortgage Capital Funding, LLC
74 Prudential Mortgage Capital Funding, LLC
75 Prudential Mortgage Capital Funding, LLC
76 Prudential Mortgage Capital Funding, LLC
77 Prudential Mortgage Capital Funding, LLC
78 Prudential Mortgage Capital Funding, LLC
79 Prudential Mortgage Capital Funding, LLC
80 Prudential Mortgage Capital Funding, LLC
81 Prudential Mortgage Capital Funding, LLC
82 Prudential Mortgage Capital Funding, LLC
83 Prudential Mortgage Capital Funding, LLC
83.a
83.b
84 Prudential Mortgage Capital Funding, LLC
85 Prudential Mortgage Capital Funding, LLC
86 Prudential Mortgage Capital Funding, LLC
87 Prudential Mortgage Capital Funding, LLC
88 Prudential Mortgage Capital Funding, LLC
89 Prudential Mortgage Capital Funding, LLC
90 Prudential Mortgage Capital Funding, LLC
91 Prudential Mortgage Capital Funding, LLC
92 Prudential Mortgage Capital Funding, LLC
93 Prudential Mortgage Capital Funding, LLC
93.a
93.b
94 Prudential Mortgage Capital Funding, LLC
95 Prudential Mortgage Capital Funding, LLC
96 Prudential Mortgage Capital Funding, LLC
97 Prudential Mortgage Capital Funding, LLC
98 Prudential Mortgage Capital Funding, LLC
99 Prudential Mortgage Capital Funding, LLC
100 Prudential Mortgage Capital Funding, LLC
101 Prudential Mortgage Capital Funding, LLC
102 Prudential Mortgage Capital Funding, LLC
103 Prudential Mortgage Capital Funding, LLC
104 Prudential Mortgage Capital Funding, LLC
105 Prudential Mortgage Capital Funding, LLC
106 Prudential Mortgage Capital Funding, LLC
107 Prudential Mortgage Capital Funding, LLC
108 Prudential Mortgage Capital Funding, LLC
109 Prudential Mortgage Capital Funding, LLC
110 Prudential Mortgage Capital Funding, LLC
111 Prudential Mortgage Capital Funding, LLC
112 Prudential Mortgage Capital Funding, LLC
113 Prudential Mortgage Capital Funding, LLC
114 Prudential Mortgage Capital Funding, LLC
115 Prudential Mortgage Capital Funding, LLC
116 Prudential Mortgage Capital Funding, LLC
117 Prudential Mortgage Capital Funding, LLC
118 Prudential Mortgage Capital Funding, LLC
119 Prudential Mortgage Capital Funding, LLC
(1) The Underlying Mortgage Loan secured by Caribbean Isle Apartments follows
the following amortization schedule:
Payments from June 1, 2001 through August 1, 2002 are interest only in a
fixed amount of $103,585.27.
Payments from September 1, 2002 through the maturity date are in the amount
of $112,938.23 based on a 342 month amortization.
The fixed interest only payment amount for the Underlying Mortgage Loan
secured by Carribbean Isle Apartments, as described above, was calculated
for the full interest only term on an Actual/360 basis and divided by the
actual number of months of the interest only term.
Therefore, the monthly interest only payments are effectively collected and
applied based on an interest rate of 8.39% when calculated on a 30/360
basis.
EXHIBIT B-1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a limited liability company 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 perform under
this Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(d) The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans (and, in the event that the
related transaction is deemed to constitute a loan secured by all or part of the
Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under the
conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the best of
the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
B-1-1
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
(i) The transfer of the Mortgage Loans to the Purchaser as contemplated
herein is not subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(j) The Mortgage Loans do not constitute all or substantially all of the
assets of the Seller.
(k) The Seller is not transferring the Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud its present or future creditors.
(l) The Seller will be solvent at all relevant times prior to, and will not
be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser,
as contemplated herein.
(m) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
(n) The Seller does not intend to, and does not believe that it will, incur
debts or obligations beyond its ability to pay such debts and obligations as
they mature.
(o) No proceedings looking toward liquidation, dissolution or bankruptcy of
the Seller are pending or contemplated.
(p) The principal place of business and chief executive office of the
Seller is located in the State of New Jersey.
B-1-2
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing Date:
(a) The Purchaser 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 Purchaser of this Agreement, and the
performance and compliance by the Purchaser with the terms of this Agreement
will not: (i) violate the Purchaser'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 Purchaser 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 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.
(c) The Purchaser has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(d) Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement 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.
(e) The Purchaser 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 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) There are no actions, suits or proceedings pending or, to the best of
the Purchaser's knowledge, threatened against the Purchaser which, if determined
adversely to the Purchaser, would prohibit the Purchaser from entering into this
Agreement or, in the Purchaser's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Purchaser to
perform its obligations hereunder or the financial condition of the Purchaser.
(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 B-3
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE ADDITIONAL PARTY
The Additional Party hereby represents and warrants that, as of the Closing
Date:
(a) The Additional Party is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) The execution and delivery by the Additional Party of this Agreement,
the execution (including, without limitation, by facsimile or machine signature)
and delivery of this Agreement and the performance and compliance by the
Additional Party with the terms of this Agreement will not: (i) violate the
Additional Party'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 Additional Party 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
Additional Party's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Additional Party to perform
its obligations under this Agreement or the financial condition of the
Additional Party.
(c) The Additional Party has full power and authority to enter into and
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(d) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Additional Party, enforceable against the Additional Party 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.
(e) The Additional Party 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 Additional
Party's good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Additional Party to perform its obligations
under this Agreement or the financial condition of the Additional Party.
(f) There are no actions, suits or proceedings pending or, to the best of
the Additional Party's knowledge, threatened against the Additional Party which,
if determined adversely to the Additional Party, would prohibit the Additional
Party from entering into this Agreement or, in the Additional Party's good faith
and reasonable judgment, would be likely to affect materially and adversely
either the ability of the Additional Party to perform its obligations hereunder
or the financial condition of the Additional Party.
(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 Additional Party of the transactions
contemplated herein, except for those consents, approvals,
B-3-1
authorizations and orders that previously have been obtained and those filings
and registrations that previously have been completed.
(h) No proceedings looking toward liquidation, dissolution or bankruptcy of
the Additional Party are pending or contemplated.
B-3-2
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 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).
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is true, complete (in accordance
with the requirements of this Agreement and 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 May 2001.
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. Except as otherwise specified on Schedule C-2, 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. Subject to the completion of all missing
information (including, without limitation, the names of assignees and endorsees
and missing recording information) in all instruments of transfer or assignment
and endorsements, and the completion of all recording and filing contemplated
hereby and by the Pooling and Servicing Agreement, the Seller will have validly
and effectively conveyed to the Purchaser all legal and beneficial interest in
and to each Mortgage Loan free and clear of any pledge, lien, charge, security
interest or other encumbrance. 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.
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 May 2001 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 May 2001.
4. Lien; Valid Assignment. Based on the related lender's title insurance
policy (or, if not yet issued, a pro forma title policy or a "marked-up"
commitment), the Mortgage related to and delivered in connection with each
Mortgage Loan constitutes a valid and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien upon the related Mortgaged
Property, prior to all other liens and encumbrances, except for (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),
none of which materially interferes with the security intended to be provided by
such
C-1
Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan, (c) 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), none of
which materially interferes with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan, (d) other matters to which like properties are
commonly subject, none of which materially interferes with the security intended
to be provided by such Mortgage, the current principal use of the related
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service the related Mortgage Loan, (e) the rights
of tenants (as tenants only) under leases (including subleases) pertaining to
the related Mortgaged Property which the Seller did not require to be
subordinated to the lien of such Mortgage and which do not materially interfere
with the security intended to be provided by such Mortgage, and (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 (the foregoing items (a) through (f) being herein referred to as the
"Permitted Encumbrances"). The related assignment of such 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 and binding assignment
of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the 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; 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 and binding assignment of such Assignment of Leases from the relevant
assignor to the Trustee.
6. Mortgage Status; Waivers and Modifications. In the case of each Mortgage
Loan, except by a written instrument which has been delivered to the Purchaser
or its designee as a part of the related Mortgage File, (a) the related Mortgage
(including any amendments or supplements thereto included in the related
Mortgage File) has not been impaired, waived, modified, altered, satisfied,
canceled, subordinated or rescinded, (b) the related Mortgaged Property has not
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, in each such event in a manner which would materially interfere
with the benefits of the security intended to be provided by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of each Mortgage
Loan, the related Mortgaged Property is, (i) free and clear of any damage caused
by fire or other casualty which 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) and (ii) not the subject of any proceeding pending for the
condemnation of all or any material portion of the Mortgaged Property securing
any Mortgage Loan. To the Seller's knowledge (based solely on surveys (if any)
and/or the lender's title policy (or, if not yet issued, a pro forma title
policy or "marked up" commitment) obtained in connection with the origination of
each Mortgage Loan), as of the date of the origination of each Mortgage Loan,
(a) all of the material improvements on the related Mortgaged Property lay
wholly within the boundaries and, to the extent in effect at the time
C-2
of construction, building restriction lines of such property, except 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 marketability of such Mortgaged Property, and (b) no improvements
on adjoining properties materially encroached upon such Mortgaged Property so as
to materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the lender's
title insurance 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) 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 exceptions stated therein. 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. To the Seller's knowledge, 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 (including endorsement and delivery of
the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the consent
of or notice to the insurer. To the Seller's knowledge, such Title Policy
contains no exclusion for, or it affirmatively insures (unless, in the case of
clause (b) below, the related Mortgaged Property is located in a jurisdiction
where such affirmative insurance is not available), (a) access to a public road,
and (b) that the area shown on the survey, if any, reviewed or prepared in
connection with the origination of the related Mortgage Loan is the same as the
property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and, subject to the
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.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan is a
deed of trust, then (a) a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and currently so serves or may be
substituted in accordance with the Mortgage and applicable law, and (b) no fees
or expenses are payable to such trustee by the Seller, the Depositor or any
transferee thereof except in connection with a trustee's sale after default by
the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged Property
securing a Mortgage Loan, (a) an environmental site assessment, an environmental
site assessment update or a
C-3
transaction screen was performed in connection with the origination of such
Mortgage Loan, (b) a report of each such assessment, update or screen, if any
(an "Environmental Report"), has been delivered to the Purchaser, and (c) except
as otherwise specified on Schedule C-12, either: (i) no such Environmental
Report, if any, provides 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) [INTENTIONALLY OMITTED], (B) the related Borrower was
required to provide additional security and/or to obtain an operations and
maintenance plan, (C) the related Borrower provided a "no further action" letter
or other evidence acceptable to the Seller, in its sole discretion, that
applicable federal, state or local governmental authorities had no current
intention of taking any action, and are not requiring any action, in respect of
such condition or circumstance, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, an
independent environmental consultant recommended no further investigation or
remediation, (E) the expenditure of funds reasonably estimated to be necessary
to effect such remediation is not greater than 10% 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 another 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, (H) the
related Mortgaged Property is insured under a policy of insurance, subject to
certain per occurrence and aggregate limits and a deductible, against certain
losses arising from such circumstances and conditions or (I) a responsible party
provided a guaranty or indemnity to the related Borrower to cover the costs of
any required investigation, testing, monitoring or remediation. To the Seller's
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, or in any Borrower questionnaire delivered to Seller at
the issue of any related environmental insurance policy, if applicable, that
render such Mortgaged Property in material violation of any applicable
environmental laws. The Mortgage or another loan document for each Mortgage Loan
encumbering the Mortgaged Property requires the related Borrower to comply with
all applicable federal, state and local environmental laws and regulations.
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 or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and except that certain provisions in such loan
documents may be further limited or rendered unenforceable by applicable law,
but (subject to the limitations set forth in the foregoing clauses (i) and (ii))
such limitations 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. To the Seller's knowledge,
there is no valid defense, counterclaim or right of offset or rescission
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.
C-4
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 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
securing a Mortgage Loan is the subject of a business interruption or rent loss
insurance policy providing coverage for at least six (6) months (or a specified
dollar amount which, in the reasonable judgement of the Seller, will cover no
less than six months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. 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. 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. With respect to each Mortgage Loan, the related
Mortgage requires that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permits the Mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage for each Mortgage Loan provides that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage may entitle the related Borrower to any
portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Borrower holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in Paragraph 18
below).
15. Taxes and Assessments. To the Seller's knowledge, based solely upon
inquiry of its servicer, there are no delinquent property taxes 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 are not otherwise covered by an escrow of funds
sufficient to pay such charge. For purposes of this representation and warranty,
real property taxes and assessments shall not be considered delinquent until the
date on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan is a debtor in
any state or federal bankruptcy, insolvency or similar proceeding.
C-5
17. Local Law Compliance. To the Seller's knowledge, based upon a letter
from governmental authorities, a legal opinion, a zoning consultant's report, an
endorsement to the related Title Policy, or a representation of the related
Borrower at the time of origination of the subject Mortgage Loan, 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, 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 as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. Except as otherwise set forth on Schedule C-18,
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; 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;
(b) Based on the related Title Policy (or, if not yet issued, a pro
forma title policy or a "marked up" commitment), 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, and
is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it either has been obtained or cannot be unreasonably withheld);
provided that such Ground Lease has not been terminated and all amounts
owed thereunder have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any 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.
Furthermore, such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered to such
mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
C-6
(g) Such Ground Lease either (i) has an original term which extends
not less than ten (10) years beyond the Stated Maturity Date of such
Mortgage Loan, 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 ten (10)
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 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 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 Mortgaged Property is located
at the time of the origination of such Mortgage Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan, and any such action
without such consent is not binding on such mortgagee, its successors or
assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury regulation section
1.860G-2(a) (but without regard to the rule in Treasury regulation section
1.860G-2(f)(2)).
20. Advancement of Funds. The Seller has not advanced funds or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property (other than amounts paid by the tenant
as specifically provided under related lease), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds, whichever is later, to the date which preceded by 30 days the
first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, 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
C-7
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.
22. Legal Proceedings. To the Seller's knowledge, except as otherwise set
forth on Schedule C-22, there are no pending actions, suits or proceedings 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.
23. Other Mortgage Liens. Except as otherwise set forth on Schedule C-23,
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 as otherwise set forth on Schedule C-23, and
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.
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 Mortgage and that are not bonded or
escrowed for or covered by title insurance, and (ii) no rights are outstanding
that under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage and that is not bonded or escrowed for or
covered by title insurance.
25. Compliance with Usury Laws. As of its date of origination, each
Mortgage Loan complied with, or was exempt from, all applicable usury laws.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a 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 the originator of the Mortgage Loan
customarily performs in the origination of comparable mortgage loans, the
related Borrower was in possession of all material licenses, permits and
franchises required by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated or such material licenses,
permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized with
any loan which is outside the Mortgage Pool.
28. Releases of Mortgaged Properties. Except as set forth on Schedule C-28,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property from the lien of the related
Mortgage except upon (i) payment in full of all amounts due under the related
Mortgage Loan or (ii) delivery of U.S. Treasury securities 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
C-8
or the release of one or more related Mortgaged Properties upon (i) the
satisfaction of certain legal and underwriting requirements or (ii) the payment
of a release price and prepayment consideration in connection therewith; 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.
29. Defeasance. 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 and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i).
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.
31. Fixed Rate Loans. Except as set forth on Schedule C-31, 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. In connection with the origination of each Mortgage Loan,
the related originator inspected, or caused the inspection of, the related
Mortgaged Property.
33. No Material Default. To the Seller's knowledge, based solely upon
inquiry of its servicer, there exists no material default, breach, violation or
event of acceleration under the Mortgage Note or Mortgage for any Mortgage Loan,
in any such case to the extent the same materially and adversely affects the
value of the Mortgage Loan and the related Mortgaged Property; provided,
however, that this representation and warranty does not cover any default,
breach, violation or event of acceleration that specifically pertains to or
arises out of the subject matter otherwise covered by any other representation
and warranty made by the Seller in this Exhibit C.
34. Due-on-Sale. Subject to exceptions set forth in the related Mortgage,
the Mortgage for each Mortgage Loan contains a "due-on-sale" clause that
provides for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without the prior written consent of the holder, the
Mortgaged Property subject to such Mortgage, or any controlling interest in the
related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. Except as set forth on Schedule C-35, the
Borrower on each Mortgage Loan with a Cut-off Date Principal Balance of
$25,000,000 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
C-9
accounts separate and apart from any other person, and that it holds itself out
as a legal entity separate and apart from any other person.
36. Whole Loan. Except as otherwise specified on Schedule C-36, 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
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, the
rate at which such ARD Loan accrues interest will increase to the sum of the
original Mortgage Rate and a specified margin (such margin, the "Additional
Interest Rate").
39. Security Interests. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property or healthcare facility, then 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. 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. Disclosure to Environmental Insurer. If the Mortgaged Property securing
any Mortgage Loan is covered by a secured creditor impaired property policy,
then the Seller:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; and
(b) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
41. 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).
42. Operating Statements. In the case of each Mortgage Loan, the related
Mortgage requires the related Borrower, in some cases at the request of the
lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and, if there is more than one tenant, rent rolls for the
related Mortgaged Property and/or financial statements of the related Borrower.
C-10
43. Servicing Rights. Except as set forth on Schedule C-43 or as otherwise
contemplated in this Agreement, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith.
44. Recourse. Except as set forth on Schedule C-44, the related Mortgage
Loan Documents contain standard 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 sustained in connection with the
Borrower's fraud, material misrepresentation or misappropriation of any tenant
security deposits, rent, 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.
45. Assignment of Collateral. Except as set forth on Schedule C-45, all of
the Seller's interest in any material collateral securing any Mortgage Loan has
been assigned to the Purchaser.
46. Fee Simple or Leasehold Interests. Except as set forth on Schedule
C-46, the interest of the related Borrower in the Mortgaged Property securing
each Mortgage Loan includes a fee simple and/or leasehold estate or interest in
real property and the improvements thereon.
47. Borrower Organization. Each Borrower that is an entity is organized
under the laws of a state of the United States of America.
48. Servicing. The servicing of the Mortgage Loans by Seller and Seller's
servicing affiliate, Prudential Asset Resources, Inc., has been in all material
respects legal, proper and prudent.
C-11
SCHEDULE C-2
OWNERSHIP OF MORTGAGE LOANS EXCEPTIONS
Loan No. 6104258 (RREEF Portfolio). The RREEF Mortgage Loan is part of the
RREEF Loan Pair and is subject to the terms and conditions of the RREEF
Co-Lender Agreement.
C-2-1
SCHEDULE C-12
ENVIRONMENTAL EXCEPTIONS
Loan No. 6104073 (FedEx Building). Funds in the amount of $1,875 were
escrowed to pay for the cost of a Connecticut DEP file review, and such file
review has not yet been completed.
Loan No. 6104241 (Sawgrass Promenade). The related Mortgaged Property has
been impacted by both former and current on-site dry cleaning operations. Both
the borrower and the current operator have applied for and received Orders of
Eligibility from the Florida Drycleaning Solvent Cleanup Program, which provide
for the costs of cleanup of the site to be borne by the Florida Hazardous Waste
Management Trust Fund, subject to payment of deductibles by the borrower and the
current operator of $1,000 and $10,000 respectively.
Loan Xx. 0000000 (Xxxxx Xxxxx). The related Mortgaged Property has been
impacted by former on-site dry cleaning operations. The borrower has applied for
and received an Order of Eligibility from the Florida Drycleaning Solvent
Cleanup Program, which provides for the costs of cleanup of the site to be borne
by the Florida Hazardous Waste Management Trust Fund, subject to payment of a
deductible by the borrower of $5,000. A reserve in the amount of the deductible
was funded at closing.
X-00-0
XXXXXXXX X-00
XXXXXXXXX XXXXXX EXCEPTIONS
Loan No. 6104055 (Windward Town & Country) and Loan Xx. 0000000 (Xxxxxxxx
Xxxxxxxx Xxxxxx). The Ground Leases for the related Mortgaged Properties do not
expressly include the provision specified in the second sentence of Paragraph
18(e)
Loan Xx. 0000000 (Xxxxxxxx Xxxx & Xxxxxxx). The Ground Lease for the
related Mortgaged Real Property provides that Lender's consent to amendments or
modifications shall not be unreasonably withheld, and permits amendments or
modifications as may be required by law or court order.
C-18-1
SCHEDULE C-22
LEGAL PROCEEDINGS
Loan No. 6104055 (Windward Town & Country). The borrower is currently the
plaintiff in a matter relating to repairs of sewer lines adjacent to the related
Mortgaged Property, having alleged that the contractor and the City and County
of Honolulu are liable for certain damages caused by related soil settlement.
The borrower has deposited $50,000 into a litigation reserve with Lender, to be
held until (i) the subject litigation is resolved, or (ii) Lender receives a
certificate from the borrower's counsel stating that the litigation will have no
material adverse impact on the borrower or its sponsor.
C-22-1
SCHEDULE C-23
OTHER MORTGAGE LIEN EXCEPTIONS
Loan No. 6104170 (Ligand). The related Mortgaged Property is encumbered by
a second mortgage securing a promissory note in the original principal balance
of $3,650,000.
Loan No. 6104258 (RREEF Portfolio). The related Mortgaged Property also
secures a related promissory note in the amount of $64,385,000 which note is
currently held by Prudential Insurance Company of America.
C-23-1
SCHEDULE C-28
RELEASES OF MORTGAGED PROPERTIES EXCEPTIONS
Loan Xx. 0000000 (XXXXX Xxxxxxxxx ). Paragraphs 10 and 11 of the related
promissory note grant the related Borrower certain rights to obtain releases of
portions of the Mortgaged Property, upon the satisfaction of specified
conditions.
Loan Xx. 0000000 (Xxxx xx Xxxxxxx). Paragraph 3.02 of the related
promissory note grants the related borrower the right to obtain a partial
release of a designated portion of the Mortgaged property, upon satisfaction of
specified conditions.
Loan No. 6104136 (Greenwood West). The borrower is permitted to obtain the
release of two vacant outparcels and a vacant anchor pad parcel, upon
satisfaction of specified conditions.
Loan No. 6104105 (ACPR I). The borrower is permitted to obtain the release
of a portion of the Mortgaged Property that becomes the subject of a
condemnation proceeding or is affected by a release of hazardous substances, in
each case subject to the satisfaction of specified conditions.
C-28-1
SCHEDULE C-31
FIXED RATE LOANS EXCEPTIONS
Loan No. 6103889 (Xxxxxxxxxxx Apartments). The interest rate on this Loan
will increase by 0.05% in the event that certain conditions are not satisfied by
July 1, 2001.
C-31-1
SCHEDULE C-35
SINGLE PURPOSE ENTITY EXCEPTIONS
Loan No. 6104258 (RREEF Portfolio). The borrower entities on this loan do
not represent or covenant that (i) they have their own books and records and
accounts separate and apart from any other person, or (ii) they hold themselves
out as a legal entity separate and apart from any other person.
C-35-1
SCHEDULE C-36
WHOLE LOAN EXCEPTIONS
Loan No. 6104258 (RREEF Portfolio). The RREEF Mortgage Loan is part of the
RREEF Loan Pair and is subject to the terms and conditions of the RREEF
Co-Lender Agreement.
C-36-1
SCHEDULE C-43
MORTGAGE LOANS SUBJECT TO THE SERVICING RIGHTS OF THIRD-PARTIES
Seller's affiliate, Prudential Asset Resources, Inc. ("PAR") has been
granted the right to master service all of the loans in the trust, as well as
specific rights to service the RREEF Loan, pursuant to the terms of that certain
Pooling and Servicing Agreement dated as of May 1, 2001 by and among Prudential
Securities Secured Financing Corporation, as Depositor, PAR, as Master Servicer
and as RREEF Special Servicer, Lennar Partners, Inc., as General Special
Servicer, LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V.,
as Fiscal Agent. In addition, for each of the Mortgage Loans identified on the
attached Exhibit A, a subservicer (generally, the mortgage broker associated
with the related Mortgage Loan) has been granted the right to receive certain
payments. The subservicers' rights to receive such payments are only terminable
under limited circumstances
C-43-1
SCHEDULE C-44
RECOURSE EXCEPTIONS
Loan No. 6104170 (Ligand). The related Mortgage Loan Documents provide for
recourse against the related borrower for intentional (vs. material)
misrepresentation.
Loan No. 6104175 (ACPR I). The related Mortgage Loan Documents provide that
the loan is fully guaranteed by Xxxx and Xxxxx Xxxxx.
Loan No. 6104178 (Litt Family Trust) and Loan Xx. 0000000 (XX Xxxxxxx
Xxxxxxx) both provide for full recourse against the related borrower.
C-44-1
SCHEDULE C-45
ASSIGNMENT OF COLLATERAL
In connection with Loan Nos. 6104238 (the "Outrigger Portfolio Loan") and
6104237 (the "Ohana Waikiki Tower Loan") which are to be included in the Trust
Fund and an additional loan to a related party which is not to be included in
the Trust Fund (the "Other Loan" and, together with the Outrigger Portfolio Loan
and the Ohana Waikiki Tower Loan, the "Outrigger Loans"), the Seller holds a
single letter of credit (the "Outrigger Letter of Credit") to secure the related
borrowers' obligation under the Outrigger Loans to maintain the blanket
commercial liability insurance coverage covering all of the related properties
with a carrier which has a certain minimum credit rating. While the Outrigger
Letter of Credit will be transferred to the Purchaser, there will be certain
rights retained by the Seller pursuant to a servicing agreement which may
provide benefits to the Seller or a subsequent holder of the Other Loan, as well
as the Purchaser, in the event of a default and a draw on the Outrigger Letter
of Credit.
C-45-1
SCHEDULE C-46
FEE SIMPLE OR LEASEHOLD INTERESTS EXCEPTIONS
Loan Nos. 6104003 (Gateway Center), 6104010 (Xxxxxx Xxxxxxx Court), 6104115
(Huntington Hills) and 6104146 (Acropolis) are secured by the related borrower's
ownership interest in a condominium project.
C-46-1
EXHIBIT D-1A
FORM OF CERTIFICATE OF THE SECRETARY OF THE SELLER
SECRETARY'S CERTIFICATE
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
The undersigned, being duly elected and incumbent Secretary of Prudential
Mortgage Capital Funding, LLC, a Delaware limited liability company (the
"Company"), certifies that, as such, I have access to the corporate records of
the Company and do hereby certify as follows:
1. The attached Exhibit "A" is a true copy of a resolutions evidencing
authorization and approval of the Company's entering into: (i) the Mortgage Loan
Purchase Agreement dated as of May 18, 2001 among the Company, as Seller,
Prudential Mortgage Capital Company, LLC ("PMCC"), as an Additional Party, and
Prudential Securities Secured Financing Corporation ("PSSFC"), as Purchaser; and
(ii) the Indemnification Agreement dated as of May 18, 2001 among the Company,
PMCC, PSSFC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx
Xxxxx Barney Inc. Said resolutions, duly adopted by Consent of the Company's
sole Managing Member effective as of May 22, 2001, remain in full force and
effect and have not been amended, revoked or rescinded.
2. The attached Exhibit "B" is a true and correct copy of the Company's
By-Laws duly adopted by the Company's sole Managing Member in effect as of the
date hereof.
3. The attached Exhibit "C" is a true and correct copy of the Company's
Certificate of Formation dated June 17, 1997. No amendment, revision, supplement
or other document affecting the Certificate of Formation has been approved by
the Managing Member of the Company or filed in the office of the Secretary of
State of the State of Delaware since June 17, 1997.
4. To my knowledge, there is no action, suit, proceeding or investigation
pending or threatened in writing against the Company in any court, including in
the state of New Jersey, or by or before any other governmental agency or
instrumentality which would materially and adversely affect the validity of the
Mortgage Loans or the ability of the Company to carry out the transactions
contemplated by the Mortgage Loan Purchase Agreement or the Indemnification
Agreement defined therein.
5. To my knowledge, the Company is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state
(including the state of New Jersey), municipal or governmental agency, which
default might have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Company or its properties or
might have consequences that would materially and adversely affect its
performance under the Mortgage Loan Purchase Agreement or the Indemnification
Agreement defined therein.
D-1A-1
IN WITNESS WHEREOF, I hereunto affixed by official signature and corporate
seal of the Company this 30th day of May, 2001.
[SEAL]
/s/ XXXX X. XXXXX
-------------------------
Xxxx X. Xxxxx
Secretary
D-1A-2
EXHIBIT D-1B
FORM OF CERTIFICATE OF THE
SECRETARY OF THE ADDITIONAL PARTY
SECRETARY'S CERTIFICATE
PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC
The undersigned, being duly elected and incumbent Secretary of Prudential
Mortgage Capital Company, LLC, a Delaware limited liability company (the
"Company"), certifies that, as such, I have access to the corporate records of
the Company and do hereby certify as follows:
1. The attached Exhibit "A" is a true copy of a resolutions evidencing
authorization and approval of the Company's entering into: (i) the Mortgage Loan
Purchase Agreement dated as of May 18, 2001 among the Company, as an Additional
Party, Prudential Mortgage Capital Funding, LLC ("PMCF"), as Seller, and
Prudential Securities Secured Financing Corporation ("PSSFC"), as Purchaser; and
(ii) the Indemnification Agreement dated as of May 18, 2001 among the Company,
PMCC, PSSFC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporation and Xxxxxxx
Xxxxx Barney, Inc.. Said resolutions, duly adopted by Consent of the Company's
sole Managing Member effective as of May 22, 2001, remain in full force and
effect and have not been amended, revoked or rescinded.
2. The attached Exhibit "B" is a true and correct copy of the Company's
By-Laws duly adopted by the Company's sole Managing Member.
3. The attached Exhibit "C" is a true and correct copy of the Company's
Certificate of Formation dated June 17, 1997. No amendment, revision, supplement
or other document affecting the Certificate of Formation has been approved by
the Managing Member of the Company or filed in the office of the Secretary of
State of the State of Delaware since June 17, 1997.
4. To my knowledge, there is no action, suit, proceeding or investigation
pending or threatened in writing against the Company in any court, including in
the state of New Jersey, or by or before any other governmental agency or
instrumentality which would materially and adversely affect the validity of the
Mortgage Loans or the ability of the Company to carry out the transactions
contemplated by the Mortgage Loan Purchase Agreement or the Indemnification
Agreement defined therein.
5. To my knowledge, the Company is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state
(including the state of New Jersey), municipal or governmental agency, which
default might have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Company or its properties or
might have consequences that would materially and adversely affect its
performance under the Mortgage Loan Purchase Agreement or the Indemnification
Agreement defined therein.
D-1B-1
IN WITNESS WHEREOF, I hereunto affixed by official signature and corporate
seal of the Company this 30th day of May, 2001.
[SEAL]
/s/ XXXX X. XXXXX
-------------------------
Xxxx X. Xxxxx
Secretary
D-1B-2
EXHIBIT D-2A
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
In connection with the execution and delivery by Prudential Mortgage
Capital Funding, LLC ("PMCF") of, and the consummation of the various
transactions contemplated by, that certain Mortgage Loan Purchase Agreement
dated as of May 18, 2001 (the "Mortgage Loan Purchase Agreement") among PMCF as
seller, Prudential Mortgage Capital Company, LLC ("PMCC") as an additional party
responsible for certain of PMCF's obligations under the Mortgage Loan Purchase
Agreement and Prudential Securities Secured Financing Corporation ("PSSFC") as
purchaser, and that certain Indemnification Agreement dated as of May 18, 2001
(the "Indemnification Agreement"), among PMCF, PMCC, PSSFC, Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx Xxxxx Barney Inc. (together, the
Mortgage Loan Purchase Agreement and the Indemnification Agreement are referred
to as the "Agreements"), the undersigned hereby certifies that (i) the
representations and warranties of PMCF in the Agreements are true and correct in
all material respects at and as of the date hereof with the same effect as if
made on the date hereof, and (ii) PMCF has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part required
under the Mortgage Loan Purchase Agreement to be performed or satisfied at or
prior to the date hereof. Capitalized terms used but not defined herein shall
have the respective meanings assigned to them in the Mortgage Loan Purchase
Agreement.
Certified this 30th day of May, 2001.
PRUDENTIAL MORTGAGE CAPITAL
FUNDING, LLC
By: /s/ XXXXXXXX X. XXXXX
---------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Principal
D-2A-1
EXHIBIT D-2B
FORM OF CERTIFICATE OF THE ADDITIONAL PARTY
CERTIFICATE OF PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC
In connection with the execution and delivery by Prudential Mortgage
Capital Funding, LLC ("PMCF") of, and the consummation of the various
transactions contemplated by, that certain Mortgage Loan Purchase Agreement
dated as of May 18, 2001 (the "Mortgage Loan Purchase Agreement") among PMCF as
seller, Prudential Mortgage Capital Company, LLC ("PMCC") as an additional party
responsible for certain of PMCF's obligations under the Mortgage Loan Purchase
Agreement and Prudential Securities Secured Financing Corporation ("PSSFC") as
purchaser, and that certain Indemnification Agreement dated as of May 18, 2001
(the "Indemnification Agreement"), among PMCF, PMCC, PSSFC, Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx Xxxxx Barney Inc. (together, the
Mortgage Loan Purchase Agreement and the Indemnification Agreement are referred
to as the "Agreements"), the undersigned hereby certifies that (i) the
representations and warranties of PMCC in the Agreements are true and correct in
all material respects at and as of the date hereof with the same effect as if
made on the date hereof, and (ii) PMCC has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part required
under the Mortgage Loan Purchase Agreement to be performed or satisfied at or
prior to the date hereof. Capitalized terms used but not defined herein shall
have the respective meanings assigned to them in the Mortgage Loan Purchase
Agreement.
Certified this 30th day of May, 2001.
PRUDENTIAL MORTGAGE CAPITAL
COMPANY, LLC
By: /s/ XXXXXXXX X. XXXXX
---------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Principal
D-2B-1
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL OF PMCF,
PURSUANT TO SECTION 7(IX)
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase Agreement dated as of May 18, 2001 (the
"Mortgage Loan Purchase Agreement") by and among Prudential Securities
Secured Financing Corporation, Prudential Mortgage Capital Funding,
LLC ("PMCF") and Prudential Mortgage Capital Company, LLC
----------------------------------------------------------------------
Ladies and Gentlemen:
I am counsel to Prudential Mortgage Capital Company, LLC, a Delaware
limited liability company (the "Company"), and, in such capacity, I am familiar
with the affairs of the Company.
I am providing this opinion in connection with the sale by PMCF to the
Depositor of certain Mortgage Loans pursuant to the terms of the Mortgage Loan
Purchase Agreement. This opinion is furnished to you pursuant to Section 7(ix)
of the Mortgage Loan Purchase Agreement. Terms used herein, but not otherwise
defined herein, shall have the meanings ascribed to them in the Mortgage Loan
Purchase Agreement.
I have examined copies of the Mortgage Loan Purchase Agreement, the
Certificate of Formation and the Operating Agreement of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures (other
than with respect to the Company), the authenticity of all documents submitted
to me as originals and the conformity to original documents of copies of
documents supplied to me. As to certain matters of fact relevant to the opinions
hereinafter expressed, I have relied solely upon statements and certificates of
the officers of the Company and others. I have also assumed (other than with
respect to the Company) 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.
I am admitted to the Bar of the State of California, and I express no
opinion as to any laws other than the laws of the United States, the State of
California and the Limited Liability Company Act of the State of Delaware.
Based on the foregoing, I am of the opinion that:
1. The Company is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, with full
power and authority to own its assets and conduct its business, to execute,
deliver and perform the Mortgage Loan Purchase Agreement and the Indemnification
Agreement (collectively herein, the "Agreements") and all the transactions
contemplated thereby, and the Company has taken all necessary action to
authorize the execution,
D-3A-1
delivery and performance of the Agreements by it, and the Agreements have been
duly authorized, executed and delivered by it.
2. The execution and delivery of the Agreements by the Company and the
performance of its obligations under the Agreements will not (a) conflict with
any provision of any law or regulation to which the Company is subject, or
conflict with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of any of the Company's organizational documents
or, (b) to my knowledge, conflict with, result in a breach of or constitute a
default under any of the terms, conditions or provisions of any agreement or
instrument to which the Company is a party or by which it is bound, or any order
or decree applicable to the Company, or result in the creation or imposition of
any lien on any of the Company's assets or property, in each case which would
materially and adversely affect the ability of the Company to carry out the
transactions contemplated by the Agreements.
3. To my knowledge, there is no action, suit, proceeding or investigation
pending or threatened in writing against the Company in any court or by or
before any other governmental agency or instrumentality which would materially
and adversely affect the validity of the Mortgage Loans or the ability of the
Company to carry out the transactions contemplated by the Agreements.
4. To my knowledge, the Company is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Company or its properties or might have consequences that
would materially and adversely affect its performance under the Agreements.
5. To my knowledge, no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by the Company or compliance by the Company with the Agreements or
the consummation of the transactions contemplated by the Agreements, other than
those which have been obtained by the Company.
This opinion is furnished solely for the benefit of the addressees hereof
in connection with the transaction referred to herein. This letter may not be
relied upon, used, quoted, circulated or otherwise referred to by any other
person or for any other purpose, except as part of the closing set of documents
disseminated to parties to the transaction, without my prior written approval.
This opinion is being given as of the date hereof and I express no opinion as to
events or conditions subsequent to such date.
Very truly yours,
/s/ XXXX X. XXXXX
-----------------------
Xxxx X. Xxxxx
D-3A-2
SCHEDULE A
ADDRESSEES
Prudential Securities Secured Financing
Corporation
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
000 Xxxxx Xxxxxx
World Financial Center, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
D-3A-3
EXHIBIT D-3B
FORM OF OPINION OF IN-HOUSE COUNSEL OF PMCC,
PURSUANT TO SECTION 7(IX)
May 30, 2001
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase Agreement dated as of May 18, 2001 (the
"Mortgage Loan Purchase Agreement") by and among Prudential Securities
Secured Financing Corporation, Prudential Mortgage Capital Funding,
LLC ("PMCF") and Prudential Mortgage Capital Company, LLC
----------------------------------------------------------------------
Ladies and Gentlemen:
I am counsel to Prudential Mortgage Capital Company, LLC, a Delaware
limited liability company (the "Company"), and, in such capacity, I am familiar
with the affairs of the Company.
I am providing this opinion in connection with the sale by PMCF to the
Depositor of certain Mortgage Loans pursuant to the terms of the Mortgage Loan
Purchase Agreement. This opinion is furnished to you pursuant to Section 7(ix)
of the Mortgage Loan Purchase Agreement. Terms used herein, but not otherwise
defined herein, shall have the meanings ascribed to them in the Mortgage Loan
Purchase Agreement.
I have examined copies of the Mortgage Loan Purchase Agreement, the
Certificate of Formation and the Operating Agreement of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures (other
than with respect to the Company), the authenticity of all documents submitted
to me as originals and the conformity to original documents of copies of
documents supplied to me. As to certain matters of fact relevant to the opinions
hereinafter expressed, I have relied solely upon statements and certificates of
the officers of the Company and others. I have also assumed (other than with
respect to the Company) 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.
I am admitted to the Bar of the State of California, and I express no
opinion as to any laws other than the laws of the United States, the State of
California and the Limited Liability Company Act of the State of Delaware.
Based on the foregoing, I am of the opinion that:
1. The Company is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, with full
power and authority to own its assets and conduct its business, to execute,
deliver and perform the Mortgage Loan Purchase Agreement and
D-3B-1
the Indemnification Agreement (collectively herein, the "Agreements") and all
the transactions contemplated thereby, and the Company has taken all necessary
action to authorize the execution, delivery and performance of the Agreements by
it, and the Agreements have been duly authorized, executed and delivered by it.
2. The execution and delivery of the Agreements by the Company and the
performance of its obligations under the Agreements will not (a) conflict with
any provision of any law or regulation to which the Company is subject, or
conflict with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of any of the Company's organizational documents
or, (b) to my knowledge, conflict with, result in a breach of or constitute a
default under any of the terms, conditions or provisions of any agreement or
instrument to which the Company is a party or by which it is bound, or any order
or decree applicable to the Company, or result in the creation or imposition of
any lien on any of the Company's assets or property, in each case which would
materially and adversely affect the ability of the Company to carry out the
transactions contemplated by the Agreements.
3. To my knowledge, there is no action, suit, proceeding or investigation
pending or threatened in writing against the Company in any court or by or
before any other governmental agency or instrumentality which would materially
and adversely affect the validity of the Mortgage Loans or the ability of the
Company to carry out the transactions contemplated by the Agreements.
4. To my knowledge, the Company is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Company or its properties or might have consequences that
would materially and adversely affect its performance under the Agreements.
5. To my knowledge, no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by the Company or compliance by the Company with the Agreements or
the consummation of the transactions contemplated by the Agreements, other than
those which have been obtained by the Company.
This opinion is furnished solely for the benefit of the addressees hereof
in connection with the transaction referred to herein. This letter may not be
relied upon, used, quoted, circulated or otherwise referred to by any other
person or for any other purpose, except as part of the closing set of documents
disseminated to parties to the transaction, without my prior written approval.
This opinion is being given as of the date hereof and I express no opinion as to
events or conditions subsequent to such date.
Very truly yours,
/s/ XXXX X. XXXXX
-----------------------
Xxxx X. Xxxxx
D-3B-2
EXHIBIT D-3C
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX,
PURSUANT TO SECTION 7(x)
May 30, 2001
Prudential Securities Secured Financing ABN AMRO Bank N.V.
Corporation 000 Xxxxx XxXxxxx Xxxxxx
Xxx Xxx Xxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Xxxxx'x Investors Service, Inc.
Incorporated 00 Xxxxxx Xxxxxx
4 World Financial Center, Xxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx Inc. Fitch, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Floor Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Prudential Securities Secured Financing Corporation 2001-C1,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Prudential Mortgage Capital Funding,
LLC ("PMCF") and Prudential Mortgage Capital Company, LLC ("PMCC") with respect
to certain matters in connection with the sale by PMCF, and the purchase by
Prudential Securities Secured Financing Corporation ("PSSFC"), of a segregated
pool of multifamily and commercial mortgage loans (collectively, the "Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement dated as of
May 18, 2001 (the "Mortgage Loan Purchase Agreement"), among PMCF, PMCC and
PSSFC.
This opinion letter is being provided to you pursuant to Section 7(x) of
the Mortgage Loan Purchase Agreement. Capitalized terms that are used, but not
defined, herein have the respective meanings set forth in, or otherwise assigned
to them pursuant to, the Mortgage Loan Purchase Agreement.
For purposes of this opinion letter, we have reviewed the Mortgage Loan
Purchase Agreement. In addition, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of such other documents and records
as we have deemed relevant or necessary as the basis for the opinions contained
in this letter; we have obtained such certificates from and made such inquiries
of officers and representatives of the parties to the Mortgage Loan Purchase
Agreement and public
D-3C-1
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
contained in the Mortgage Loan Purchase Agreement, (ii) the legal capacity of
natural persons, (iii) the genuineness of all signatures, (iv) the authenticity
of all documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of each of the parties to the
Mortgage Loan Purchase Agreement and the valid existence of each such party in
good standing under the laws of its jurisdiction of organization, (vii) the
power and authority of all parties to the Mortgage Loan Purchase Agreement to
enter into, perform under and consummate the transactions contemplated by the
Mortgage Loan Purchase Agreement, without any resulting conflict with or
violation of the organizational documents of any such party or with or of any
law, rule, regulation, order or decree applicable to any such party or its
assets, and without any resulting default under or breach of any other agreement
or instrument by which any such party is bound or which is applicable to it or
its assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Mortgage Loan Purchase Agreement by the parties
thereto, (ix) except to the extent expressly addressed below, the constitution
of the Mortgage Loan Purchase Agreement as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, and (x) the absence of any other agreement that supplements or
otherwise modifies the intentions and agreements of the parties to the Mortgage
Loan Purchase Agreement, as expressed therein.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not in writing and executed by all
relevant parties, to sever any provision of any agreement, to appoint any person
or entity as the attorney-in-fact of any other person or entity or to provide
that any agreement or any particular provision thereof is to be governed by or
construed in accordance with the laws of any jurisdiction other than the State
of New York; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws
D-3C-2
affecting the rights of creditors or secured parties generally; and (5) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of any provision of any
agreement that purports or is construed to provide indemnification with respect
to securities law violations.
In rendering this opinion letter, we do not express any opinion concerning
the laws of any jurisdiction other than the laws of the State of New York
(without regard to conflicts of law principles). In addition, we do not express
any opinion with respect to the tax, securities or "doing business" laws of any
particular jurisdiction, including, without limitation, the State of New York,
or with respect to any matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that the
Mortgage Loan Purchase Agreement constitutes a valid, legal binding agreement of
each of PMCF and PMCC, enforceable against each of PMCF and PMCC in accordance
with its terms.
The opinion expressed herein is being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the closing of PMCF's sale of the
Mortgage Loans to PSSFC, pursuant to the Mortgage Loan Purchase Agreement, and
may not be relied on in any manner for any other purpose or by any other person
or transmitted to any other person without our prior consent.
Very truly yours,
/s/ SIDLEY XXXXXX XXXXX & XXXX
------------------------------
Sidley Xxxxxx Xxxxx & Xxxx
D-3C-3
EXHIBIT D-3D
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX
PURSUANT TO SECTION 7(xi)
May 30, 2001
Prudential Securities Secured Financing ABN AMRO Bank N.V.
Corporation 000 Xxxxx XxXxxxx Xxxxxx
Xxx Xxx Xxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Xxxxx'x Investors Service, Inc.
Incorporated 00 Xxxxxx Xxxxxx
4 World Financial Center, Xxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx Inc. Fitch, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Floor Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2001-C1
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Prudential Securities Secured Financing
Corporation (the "Depositor") and Prudential Mortgage Capital Funding LLC
("PMCF") with respect to certain matters in connection with the following
transactions (collectively the "Transactions"):
(i) the sale by PMCF, and the purchase by the Depositor, of a
segregated pool of multifamily and commercial mortgage loans (collectively,
the "Mortgage Loans"), pursuant to the Mortgage Loan Purchase Agreement
dated as of May 18, 2001 (the "Mortgage Loan Purchase Agreement"), between
PMCF as seller, Prudential Mortgage Capital Company, LLC ("PMCC") as an
additional party and the Depositor as purchaser (such Transaction, the
"PMCF Sale");
(ii) the creation of a commercial mortgage trust (the "Trust"), and
the issuance of an aggregate $908,228,773 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-C1 (the
"Certificates"), consisting of 19 classes designated Class X-0, Xxxxx X-0,
Class B, Class C, Class X-1, Class X-2, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class R and
Class V, pursuant to the Pooling and Servicing Agreement dated as of May 1,
2001 (the "Pooling and Servicing
D-3D-1
Agreement"), among the Depositor as depositor, Prudential Asset Resources,
Inc., as Master Servicer and as RREEF special servicer, Lennar Partners,
Inc., as general special servicer, LaSalle Bank National Association, as
trustee (the "Trustee"), ABN AMRO Bank N.V., as fiscal agent, and The
Prudential Insurance Company of America, as RREEF B-note holder.
(iii) the transfer of the Mortgage Loans by the Depositor to the
Trust, pursuant to the Pooling and Servicing Agreement, in exchange for the
Certificates (such Transaction, the "Transfer to the Trust");
(iv) the sale by the Depositor, and the purchase by Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and Xxxxxxx Xxxxx
Xxxxxx Inc. ("SSBI"; and, collectively with Xxxxxxx Xxxxx in such capacity,
the "Underwriters") of the Class X-0, Xxxxx X-0, Class B and Class C
Certificates (collectively, the "Publicly Offered Certificates"), pursuant
to the Underwriting Agreement dated as of May 18, 2001 (the "Underwriting
Agreement"), between the Depositor and the Underwriters; and
(v) the sale by the Depositor, and the purchase by Xxxxxxx Xxxxx and
SSBI (collectively in such capacity, the "Initial Purchasers") of the Class
X-1, Class X-2, Class D, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N and Class O Certificates (collectively, the
"Privately Offered Certificates" and, collectively with the Publicly
Offered Certificates, the "Offered Certificates"), pursuant to the
Certificate Purchase Agreement dated as of May 18, 2001 (the "Certificate
Purchase Agreement"), between the Depositor and the Initial Purchasers.
The Pooling and Servicing Agreement, the Underwriting Agreement, the
Certificate Purchase Agreement and the Mortgage Loan Purchase Agreement are
collectively referred to herein as the "Agreements". Capitalized terms not
defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement and, to the extent not defined therein, in the other
Agreements.
We have been asked by our clients to provide our opinion to you as to
whether:
(i) in connection with any bankruptcy proceedings instituted by or on
behalf of PMCF under the Federal Bankruptcy Code, as amended (Title 11 of
the United States Code) (the "Bankruptcy Code"), the PMCF Sale would be
treated by a court as a true sale of the Mortgage Loans from PMCF to the
Depositor rather than as a loan secured by the Mortgage Loans, such that
the Mortgage Loans would not, on such basis, constitute property of PMCF's
estate under Section 541(a)(1) of the Bankruptcy Code or property of PMCF
subject to the automatic stay provisions of Section 362(a) of the
Bankruptcy Code that would be applicable to the property of PMCF in such a
proceeding; and
(ii) in connection with any bankruptcy proceedings instituted by or on
behalf of the Depositor under the Bankruptcy Code, the Transfer to the
Trust would be treated by a court as an absolute transfer of the Mortgage
Loans from the Depositor to the Trust rather than as a loan secured by the
Mortgage Loans, such that the Mortgage Loans would not, on such basis,
constitute property of the Depositor's estate under Section 541(a)(1) of
the Bankruptcy Code or property of the Depositor subject to the automatic
stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of the Depositor in such a proceeding.
D-3D-2
For purposes of this opinion letter, we have reviewed the following
documents and all exhibits thereto (collectively, the "Relevant Documents"):
(i) the Agreements;
(ii) a certificate of PMCF regarding the PMCF Sale, a copy of which is
attached hereto; and
(iii) a certificate of the Depositor regarding the Transfer to the
Trust, a copy of which is attached hereto.
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
underlying the assumptions set forth below or that are otherwise factually
relevant to the opinions expressed herein and contained in the Agreements, (ii)
the legal capacity of natural persons, (iii) the genuineness of all signatures,
(iv) the authenticity of all documents submitted to us as originals, (v) the
conformity to authentic originals of all documents submitted to us as certified,
conformed or photostatic copies, (vi) the due organization of all parties to
each of the Agreements and the valid existence of each such party in good
standing under the laws of its jurisdiction of organization, (vii) the power and
authority of the parties to each of the Agreements to enter into, perform under
and consummate the transactions contemplated by such Agreement, without any
resulting conflict with or violation of the organizational documents of any such
party or with or of any law, rule, regulation, order or decree applicable to any
such party or its assets, and without any resulting default under or breach of
any other agreement or instrument by which any such party is bound or which is
applicable to it or its assets, (viii) the due authorization by all necessary
action, and the due execution and delivery, of the Agreements by the parties
thereto, (ix) the constitution of each Agreement as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, (x) compliance with the Agreements by all parties thereto, and
(xi) the conformity, to the requirements of the Mortgage Loan Purchase Agreement
and the Pooling and Servicing Agreement, of the Mortgage Notes, the Mortgages
and the other documents delivered to the Trustee by, on behalf of or at the
direction of the Depositor and PMCF.
In addition, we have assumed that the following statements are true and the
following actions (except as otherwise indicated) have occurred on the date
hereof based upon representations or other provisions in the Relevant Documents:
SECTION 1. The transfer of the Mortgage Loans by PMCF to the Depositor, the
transfer of the Mortgage Loans by the Depositor to the Trust and the sale of the
Offered Certificates by the Depositor to the Underwriters and the Initial
Purchasers, as provided in the Agreements, are contemporaneous exchanges in
which PMCF and the Depositor, respectively, receive new value and consideration
constituting reasonably equivalent value and fair consideration.
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SECTION 2. Following the PMCF Sale and the Transfer to the Trust, neither
PMCF nor the Depositor has the right to unilaterally modify or alter the terms
of such Transactions. The consideration received by PMCF in connection with its
sale of the Mortgage Loans to the Depositor, and by the Depositor in connection
with its sales of the Offered Certificates to the Underwriters and the Initial
Purchasers, are, in each case, fixed and not subject to adjustment following the
Closing Date.
SECTION 3. No provision exists whereby the terms of the Certificates, the
Pooling and Servicing Agreement or the Mortgage Loan Purchase Agreement may be
unilaterally modified by PMCF or the Depositor following the PMCF Sale and the
Transfer to the Trust.
SECTION 4. Pursuant to the Mortgage Loan Purchase Agreement, it is the
intention of PMCF and the Depositor that the PMCF Sale constitute a sale by PMCF
to the Depositor of all of PMCF's right, title and interest in and to the
Mortgage Loans, and pursuant to the Pooling and Servicing Agreement, it is the
intention of the Depositor and the Trustee that the Transfer to the Trust
constitute an absolute transfer by the Depositor to the Trust of all of the
Depositor's right, title and interest in and to the Mortgage Loans. Pursuant to
the Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement,
each of PMCF and the Depositor will treat the PMCF Sale as a sale (as opposed to
a secured loan) under generally accepted accounting principles in the United
States ("GAAP"), and pursuant to the Pooling and Servicing Agreement, the
Underwriting Agreement and the Offered Certificate Purchase Agreement, the
Depositor will treat the Transfer to the Trust and the sale of the Offered
Certificates by the Depositor to the Underwriters and the Initial Purchasers as
a sale (as opposed to a secured loan) under GAAP.
SECTION 5. After the completion of the PMCF Sale and the Transfer to the
Trust, none of PMCF, the Depositor or any of their affiliates has (i) the right
to repurchase or otherwise to cause the reconveyance to itself of any Mortgage
Loan or (ii) any obligation to repurchase or otherwise remove any Mortgage Loan
from the Trust (other than, in the case of PMCF and PMCC, in connection with a
material breach of certain representations, warranties and covenants made by
PMCF with respect to the Mortgage Loans in the Mortgage Loan Purchase
Agreement).
SECTION 6. There is no other agreement, arrangement or understanding,
written or otherwise (including, without limitation, with respect to the PMCF
Sale or the Transfer to the Trust), that supplements or otherwise modifies the
intentions and agreements of the parties to the Agreements, as expressed
therein.
SECTION 7. After the completion of the PMCF Sale and the Transfer to the
Trust, neither PMCF nor the Depositor will take any action inconsistent with the
Trust's ownership of the Mortgage Loans.
SECTION 8. Immediately before the PMCF Sale, PMCF owned the Mortgage Loans
free and clear of any adverse claims or other interests. In connection with the
PMCF Sale, PMCF will have validly and effectively conveyed to the Depositor all
legal and beneficial ownership in and to each Mortgage Loan free and clear of
any pledge, lien, charge, security interest or other encumbrance. The Depositor
has not transferred and will not transfer its right, title and interest in and
to any Mortgage Loan except to the Trustee as contemplated by the Pooling and
Servicing Agreement. No adverse claims or other interests with respect to any
Mortgage Loan were created by or through the Depositor, except as contemplated
by the Agreements.
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SECTION 9. Each of PMCF and the Depositor has taken all actions required
under applicable law to effectuate the PMCF Sale. Each of the Depositor and the
Trustee has taken (or the Pooling and Servicing Agreement provides that, within
a reasonable time period following the Closing Date, each of them will be
required to take) all actions required under applicable law to effectuate the
Transfer to the Trust.
SECTION 10. In connection with the PMCF Sale and the Transfer to the Trust,
neither PMCF nor the Depositor had any intent to hinder, delay or defraud its
present or future creditors.
SECTION 11. After giving effect to the PMCF Sale and the Transfer to the
Trust, the value of the assets of each of PMCF and the Depositor, respectively,
either taken at their present fair salable value or at fair valuation, exceeded
the amount of the debts and obligations, including contingent and unliquidated
debts and obligations, of PMCF and the Depositor, respectively.
SECTION 12. After giving effect to the PMCF Sale and the Transfer to the
Trust, neither PMCF nor the Depositor was left with unreasonably small assets or
capital with which to engage in and conduct its business.
SECTION 13. After giving effect to the PMCF Sale and the Transfer to the
Trust, neither PMCF nor the Depositor intends to, or believes that it will,
incur debts or obligations beyond its ability to pay such debts and obligations
as they mature.
There is limited judicial authority relating to the issue of when a
transaction styled as a sale of assets or an absolute transfer of assets
constitutes a true sale or an absolute transfer, as the case may be, as opposed
to a secured loan, and we have not located any controlling precedent for the
transactions described herein. However, the existing case law indicates that an
analysis of a purported true sale or absolute transfer should examine the intent
of the parties as well as the economic consequences of the transaction to
determine whether they are consistent with characterization as a true sale or
absolute transfer, as the case may be. Some of the most important factors
relevant to this economic analysis include (i) whether the buyer or transferee
has assumed the risks inherent in the ownership of the assets purportedly sold
or transferred (i.e., whether the risk of loss has been borne by the buyer or
transferee), (ii) the presence (or absence) of a fixed consideration that is not
subject to further adjustment, given in connection with the purchase or
transfer, (iii) the level of recourse (if any) that the buyer or transferee has
against the seller or transferor, (iv) whether the buyer's or transferee's
rights in the acquired assets could be extinguished by repayment of a debt owed
by the seller or transferor or by the recovery of the consideration (if any)
given in connection with the purchase or transfer and (v) in what circumstances
(if any) the seller or transferor has the right or the obligation to repurchase
or otherwise reacquire the assets or any interest therein.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the Bankruptcy Code and the law of the State of New York to
the extent that it may be applicable thereunder. We do not express any opinion
on any matter not expressly addressed below.
Based upon and subject to the foregoing, the further qualifications set
forth below, and the reasoned analysis of analogous case law (although there is
no precedent directly on point), it is our opinion that:
D-3D-5
1. In connection with any bankruptcy proceeding instituted by or on
behalf of PMCF under the Bankruptcy Code, the PMCF Sale would be treated by
a court as a true sale of the Mortgage Loans from PMCF to the Depositor,
rather than as a loan secured by the Mortgage Loans, such that the Mortgage
Loans would not, on such basis, constitute property of PMCF's estate under
Section 541(a)(1) of the Bankruptcy Code or property of PMCF subject to the
automatic stay provisions of Section 362(a) of the Bankruptcy Code that
would be applicable to the property of PMCF in such a proceeding.
2. In connection with any bankruptcy proceedings instituted by or on
behalf of the Depositor under the Bankruptcy Code, the Transfer to the
Trust would be treated by a court as an absolute transfer of the Mortgage
Loans from the Depositor to the Trust, rather than as a loan secured by the
Mortgage Loans, such that the Mortgage Loans would not, on such basis,
constitute property of the Depositor's estate under Section 541(a)(1) of
the Bankruptcy Code or property of the Depositor subject to the automatic
stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of the Depositor in such a proceeding.
Our opinion is subject to the qualifications that (i) the assumptions set
forth herein are and (except to the extent that they assume the subject entity
will always be solvent) continue to be true in all respects relevant to this
opinion, (ii) there are no additional facts that would affect the validity of
the assumptions set forth herein or upon which this opinion is based, (iii) any
claim contrary to or inconsistent with any opinion expressed herein made in any
judicial proceeding will be opposed and litigated to a final judicial resolution
by one or more persons or entities with standing to do so, (iv) such case is
properly presented and argued, and (v) the law is properly applied. In
connection with the foregoing opinions, we draw your attention to the fact that
bankruptcy opinions are subject to inherent limitations because of the pervasive
equity powers of bankruptcy courts, the overriding goal of reorganization to
which other legal rights and policies may be subordinated, the potential
relevance to the exercise of judicial discretion of future-arising facts and
circumstances and the nature of the bankruptcy process.*
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* In that regard, we note the Memorandum Opinion dated February 5, 2001, issued
by the bankruptcy court in In re: LTV Steel Company, Inc., et al., U.S. Bankr.
Ct., Northern District of Ohio, Case No. 00-43866 (the "LTV Memorandum
Opinion"). The LTV Memorandum Opinion arose in a case in which the debtor, LTV
Steel Company ("LTV" or the "Debtor"), had entered into securitization
arrangements with respect both to its inventory and its accounts receivable,
selling its inventory to one special purpose subsidiary and its accounts
receivable to another special purpose entity. (Neither special purpose entity
was made a debtor in the jointly administered Chapter 11 filings of LTV and its
subsidiaries). The Debtor filed a motion seeking use of the cash collections
from the securitized assets on the basis that the sales were nothing more than
disguised financings and the debtor and the agent for the financial institutions
that invested in the two securitizations agreed to an interim order for the use
of such cash collateral (the "Interim Order"). The Interim Order, among other
things, (i) required the securitization investors, on an interim basis until the
true sale issue could be decided, to turn over to LTV the cash proceeds of the
securitized inventory and accounts receivable and (ii) purported to provide
"adequate protection" to the securitization investors (treating them, in effect,
as secured creditors) in the form of liens on LTV's accounts receivable and
inventory and weekly interest payments at the non-default contract rate.
The LTV Memorandum Opinion was issued in response to the motion of one of
the investors in the accounts receivable securitization to modify the Interim
Order, in part on the basis that the receivables transferred in the accounts
receivable securitization were not property of the Debtor's estate. The
bankruptcy court, while not
D-3D-6
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
/s/ SIDLEY XXXXXX XXXXX & XXXX
------------------------------
Sidley Xxxxxx Xxxxx & Xxxx
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determining the "fact-intensive issue" as to whether the inventory and
receivables transferred were property of the estate (which determination
required further discovery and an evidentiary hearing), did find that LTV
"...has at least some equitable interest in the inventory and receivables, and
that this interest is property of the Debtor's estate ... sufficient to support
the entry of the interim cash collateral order." (LTV Memorandum Opinion at
p. 14). The court based its decision in large part on its view of the equities
of the case. The court noted in particular that failure to enter the interim
cash collateral order "...would put an immediate end to Debtor's business, would
put thousands of people out of work, would deprive 100,000 retirees of needed
medical benefits, and would have more far reaching economic effects on the
geographic areas where Debtor does business" (LTV Memorandum Opinion,
pp. 14 - 15), while the Interim Order protected the securitization financing
parties by its adequate protection provisions.
The Debtor and the securitization investors subsequently settled their
dispute over the terms of the Interim Order and the bankruptcy court therefore
never made a final determination as to whether the assets transferred in the two
securitizations were property of LTV's estate. The bankruptcy court did not cite
case law or other support for the proposition that a party that has sold
accounts receivable, inventory or other property, retains an equitable interest
in that property, and the bankruptcy court's finding that LTV retained such an
interest could be read narrowly as one court's attempt to maintain the status
quo pending a determination of the issue on the merits. Nonetheless, the LTV
Memorandum Opinion serves as an example of the pervasive equity powers of
bankruptcy courts, and the importance that such courts may ascribe to the goal
of reorganization when faced with a dispute as to whether a transfer of assets
integral to the ongoing operation of the debtor's business constitutes a true
sale or a secured loan, particularly where the transfer is documented in a
transaction deemed significant and complex by the court.
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