Exhibit 99.1
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement") is dated
and effective as of September 17, 2002 between Salomon Brothers Realty Corp.
("SBRC"), a New York corporation, as seller (in such capacity, together with
its successors and permitted assigns hereunder, the "Seller"), and Salomon
Brothers Mortgage Securities VII, Inc., a Delaware corporation ("SBMS VII"),
as purchaser (in such capacity, together with its successors and permitted
assigns hereunder, the "Purchaser").
RECITALS
SBRC desires to sell, assign, transfer and otherwise convey to SBMS
VII, without recourse, and SBMS VII desires to purchase, subject to the terms
and conditions set forth herein, the multifamily and commercial mortgage loans
(the "Mortgage Loans") identified on the schedule annexed hereto as Exhibit A
(the "Mortgage Loan Schedule"), as such schedule may be amended from time to
time pursuant to the terms hereof.
A real estate mortgage investment conduit ("REMIC") election has
been made with respect to each of four (4) Mortgage Loans (the resulting
REMICs being herein referred to as "Loan REMICs"), for federal income tax
purposes. SBRC also desires to sell, assign, transfer and otherwise convey to
SBMS VII, without recourse, and SBMS VII desires to purchase, subject to the
terms and conditions set forth herein, the regular interests (the "Loan REMIC
Regular Interests") and residual interests (the "Loan REMIC Residual
Interests"; and, collectively with the Loan REMIC Regular Interests, the "Loan
REMIC Interests") in the Loan REMICs.
SBMS VII intends to create a trust (the "Trust"), the primary assets
of which will be the Mortgage Loans, certain other multifamily and commercial
mortgage loans (the "Other Loans"; and, together with the Mortgage Loans, the
"Securitized Loans") and the Loan REMIC Interests. Beneficial ownership of the
assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard
& Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and
Xxxxx'x Investors Service, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be subject to
registration under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust will be created and the Certificates will be issued pursuant
to a pooling and servicing agreement to be dated as of September 11, 2002 (the
"Pooling and Servicing Agreement"), among SBMS VII as depositor, KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage as master servicer
(the "Master Servicer"), ARCap Special Servicing, Inc. as special servicer
(the "Special Servicer") and Xxxxx Fargo Bank Minnesota, N.A. as trustee (the
"Trustee"). Capitalized terms used but not otherwise defined herein have the
respective meanings assigned to them in the Pooling and Servicing Agreement as
in full force and effect on the Closing Date (as defined in Section 1 hereof).
It is anticipated that SBMS VII will transfer the Mortgage Loans and the Loan
REMIC Interests to the Trust contemporaneously with its purchase of the
Mortgage Loans and the Loan REMIC Interests hereunder.
The Depositor will acquire certain of the Other Loans from Column
Financial, Inc. and KeyBank National Association (together, the "Other Loan
Sellers").
SBMS VII intends to sell the Registered Certificates to Xxxxxxx
Xxxxx Barney Inc. ("SSBI"), Credit Suisse First Boston Corporation ("CSFB"),
McDonald Investments, Inc. ("MII") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"; and, SSBI, CSFB, MII and Xxxxxxx Xxxxx
collectively in such capacity, the "Underwriters"), pursuant to an
underwriting agreement, dated as of September 17, 2002 (the "Underwriting
Agreement"), between SBMS VII and the Underwriters; and SBMS VII intends to
sell the remaining Certificates (the "Non-Registered Certificates") to SSBI,
pursuant to a certificate purchase agreement, dated as of September 17, 2002
(the "Certificate Purchase Agreement"), between SBMS VII and SSBI. The
Registered Certificates are more fully described in the prospectus dated
September 3, 2002 (the "Basic Prospectus"); and the supplement to the Basic
Prospectus dated September 17, 2002 (the "Prospectus Supplement"; and,
together with the Basic Prospectus, the "Prospectus"), as each may be amended
or supplemented at any time hereafter. Certain classes of the Non-Registered
Certificates are more fully described in the offering memorandum dated
September 17, 2002 (the "Memorandum"), as it may be amended or supplemented at
any time hereafter.
SBRC will indemnify SBMS VII, SSBI, MII, CSFB, Xxxxxxx Xxxxx and
certain related parties with respect to the disclosure regarding the Mortgage
Loans and SBRC contained in the Prospectus, the Memorandum and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement dated as of September 17, 2002 (the
"Indemnification Agreement"), among SBRC, SBMS VII, SSBI, MII, CSFB and
Xxxxxxx Xxxxx.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey
(without recourse) to the Purchaser, and the Purchaser agrees to purchase,
subject to the terms and conditions set forth herein, the Mortgage Loans and
the Loan REMIC Interests. The purchase and sale of the Mortgage Loans and the
Loan REMIC Interests shall take place on September 26, 2002, or such other
date as shall be mutually acceptable to the parties hereto (the "Closing
Date"). As of the close of business on their respective due dates in September
2002 (individually, on a loan-by-loan basis, and collectively, the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance, after
application of all payments of principal due on the Mortgage Loans on or
before such date, whether or not received, of $563,320,762, subject to a
variance of plus or minus 5%. The purchase price for the Mortgage Loans and
the Loan REMIC Interests shall be as set forth in the purchase price
confirmation between the Seller and the Purchaser, and will include accrued
interest on the Mortgage Loans at their respective Net Mortgage Rates from and
including September 1, 2002 to but not including the Closing Date, and shall
be paid to the Seller by wire transfer in immediately available funds on the
Closing Date (or by such other method as shall be mutually acceptable to the
parties hereto). It is acknowledged and agreed by both parties hereto that at
the time of transfer hereunder the Mortgage Loans will be subject to certain
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servicing rights separately sold by the Seller to the Master Servicer and/or
parties that will act as Sub-Servicers under the Pooling and Servicing
Agreement on behalf of the Master Servicer.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all of the right, title and interest of the Seller in and to the
Mortgage Loans and any and all related Loan REMIC Interests, including all
interest and principal received on or with respect to the Mortgage Loans and
any and all related Loan REMIC Interests after the Cut-off Date (other than
scheduled payments of interest and principal due on or before the Cut-off
Date), together with all of the right, title and interest of the Seller in and
to the proceeds of any related title, hazard or other insurance policies and
any escrow, reserve or other comparable accounts related to the Mortgage
Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon
after the Cut-off Date (other than scheduled payments of principal and
interest due on the Mortgage Loans on or before the Cut-off Date and collected
after the Cut-off Date, which shall belong to the Seller).
(c) No later than the Closing Date, the Seller shall, at its
expense, subject to Section 18, deliver to and deposit with, or cause to be
delivered to and deposited with, the Purchaser or its designee the Mortgage
File and any Additional Collateral (other than reserve funds and escrow
payments) with respect to each Mortgage Loan (as such Mortgage File and
Additional Collateral exist or, in the case of such Mortgage File, should
exist in accordance with the definition thereof in the Pooling and Servicing
Agreement, as of the Closing Date). In addition, with respect to each Mortgage
Loan as to which any such Additional Collateral is in the form of a Letter of
Credit as of the Closing Date, the Seller shall cause to be prepared, executed
and delivered to the issuer of each such Letter of Credit such notices,
assignments and acknowledgments as are required under such Letter of Credit to
assign, without recourse, to, and vest in, the Trustee the Seller's rights as
the beneficiary thereof and drawing party thereunder. Unless the Purchaser
provides the Seller with written instructions to the contrary prior to the
Closing Date, the designated recipient of the items described in the second
preceding sentence shall be the Custodian, and the designated beneficiary
under each Letter of Credit referred to in the preceding sentence shall be the
Trustee.
If the Seller cannot deliver on the Closing Date any original or
certified recorded document or original policy of title insurance which is to
be delivered as part of the related Mortgage File for any Mortgage Loan solely
because the Seller is delayed in making such delivery by reason of the fact
that such original or certified recorded document has not been returned by the
appropriate recording office or such original policy of title insurance has
not yet been issued, then the Seller shall deliver such documents to the
Purchaser or its designee, promptly upon the Seller's receipt thereof.
In addition, unless previously delivered by the Seller to the
Purchaser or its designee, the Seller shall, at its expense, within 10 days
following (or, in the case of the reserve
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funds and escrow payments referred to in clause (ii) of this sentence, no
later than) the Closing Date, deliver to and deposit with, or cause to be
delivered to and deposited with, the Purchaser or its designee, each of the
following items that are in the possession or under the control of the Seller
and that relate to the Mortgage Loans (except to the extent that any of the
following items are to be retained by a subservicer that will continue to act
on behalf of the Purchaser or its designee): (i) originals or copies of all
property-specific financial statements, appraisals, environmental/engineering
reports, transaction screens, leases, rent rolls, third-party underwriting
reports, insurance policies, legal opinions, property management agreements,
tenant estoppels, subordination and non-disturbance agreements, and any other
documents that the Purchaser or its servicing agent reasonably deems necessary
to service the subject Mortgage Loan and specifies to the Seller in writing
and, to the extent they are not required to be a part of a Mortgage File for
any Mortgage Loan, originals or copies of all documents, certificates and
opinions that were delivered by or on behalf of the related Borrowers in
connection with the origination of the Mortgage Loans (provided that the
Seller shall not be required to deliver any attorney-client privileged
communication or any documents or materials prepared by the Seller or its
affiliates solely for internal uses); (ii) all unapplied reserve funds and
escrow payments; and (iii) a limited power of attorney from the Seller
enabling the Purchaser or its designee to effect the recordation of documents
contemplated by Section 2(d). Unless the Purchaser provides the Seller with
written instructions to the contrary prior to the Closing Date, the designated
recipient of the items described in clauses (i) and (ii) of the preceding
sentence shall be the applicable Master Servicer.
Notwithstanding the foregoing, if the Seller is unable to deliver
any Letter of Credit constituting Additional Collateral for any Mortgage Loan,
then the Seller may, in lieu thereof, deliver on behalf of the related
Borrower, to be used for the same purposes as such missing Letter of Credit
either: (i) a substitute letter of credit substantially comparable to, but in
all cases in the same amount and with the same draw conditions and renewal
rights as, that Letter of Credit and issued by an obligor that meets any
criteria in the related Mortgage Loan Documents applicable to the issuer of
that Letter of Credit; or (ii) a cash reserve in an amount equal to the amount
of that Letter of Credit. For purposes of the delivery requirements of this
Section 2(c), any such substitute letter of credit shall be deemed to be
Additional Collateral of the type covered by the first paragraph of this
Section 2(c) and any such cash reserve shall be deemed to be reserve funds of
the type covered by the third paragraph of this Section 2(c).
In connection with the foregoing paragraphs of this Section 2(c),
the Seller is a designated recipient, or shall otherwise be the beneficiary,
of all certifications relating to the Mortgage Loans made and/or delivered by
the Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the Pooling and
Servicing Agreement.
(d) The Seller shall be responsible for all reasonable fees and
out-of-pocket costs and expenses associated with recording and/or filing any
and all assignments and other instruments of transfer to the Purchaser with
respect to the Mortgage Loans that are required to be recorded or filed, as
the case may be, under the Pooling and Servicing Agreement; provided that the
Seller shall not be responsible for actually recording or filing any such
assignments or other instruments of transfer. If any such assignment or other
instrument of transfer is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, and the Seller receives notice to such
effect from the Purchaser or its designee, then the Seller shall prepare or
cause the
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preparation of a substitute therefor or cure such defect, as the case may be;
provided that the cost of such preparation shall be borne by the Purchaser if
the loss or return is caused by the Purchaser's negligence.
(e) Under generally accepted accounting principles ("GAAP"), the
Seller shall report its transfer of the Mortgage Loans and the Loan REMIC
Interests to the Purchaser, as provided herein, as a sale of those assets to
the Purchaser in exchange for the consideration specified in Section 1 hereof.
In connection with the foregoing, the Seller shall cause all of its records
(including, without limitation, financial and accounting records) to reflect
such transfer as a sale (as opposed to a secured loan) and to reflect that the
Mortgage Loans and the Loan REMIC Interests are no longer property of the
Seller.
(f) After the Seller's transfer of the Mortgage Loans and the Loan
REMIC Interests to the Purchaser, as provided herein, the Seller shall not
take any action inconsistent with the Purchaser's ownership of the Mortgage
Loans and the Loan REMIC Interests. Except for actions that are the express
responsibility of another party hereunder or under the Pooling and Servicing
Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all actions required under applicable law to
effectuate the transfer of the Mortgage Loans and the Loan REMIC Interests by
the Seller to the Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
(h) The Seller shall also provide to the Purchaser or its designee
the initial data on the Mortgage Loans (as of the Closing Date or the most
recent earlier date for which such data is available) contemplated by the Loan
Set-up File, the Loan Periodic Update File, the Operating Statement Analysis
Report and the Property File.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans and the Loan REMICs, that may be undertaken by or on behalf of
the Purchaser on or prior to the Closing Date. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of any
of the Mortgage Files for, and/or any of such other documents and records
relating to, the Mortgage Loans and the Loan REMICs, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section
4, except as such remedies are otherwise limited by the terms of this
Agreement.
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SECTION 4. Representations, Warranties and Covenants of the Seller
and the Purchaser.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser, each of the representations and warranties set forth
in Exhibit B-1. The Purchaser hereby makes, as of the Closing Date, to and for
the benefit of the Seller, each of the representations and warranties set
forth in Exhibit B-2.
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty) to
and for the benefit of the Purchaser, with respect to each Mortgage Loan, each
of the representations and warranties set forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date,
to and for the benefit of SBMS VII only, that the Seller has not dealt with
any broker, investment banker, agent or other person (other than SBMS VII,
SSBI, MII, CSFB and Xxxxxxx Xxxxx) who may be entitled to any commission or
compensation in connection with the sale to the Purchaser of the Mortgage
Loans and the Loan REMIC Interests.
(d) It is understood and agreed that the representations and warranties
set forth in and/or made pursuant to this Section 4 shall survive delivery of
the respective Mortgage Files to the Purchaser or its designee and shall inure
to the benefit of the Purchaser for so long as any of the Mortgage Loans
remains outstanding, notwithstanding any restrictive or qualified endorsement
or assignment.
SECTION 5. Notice of Breach; Cure and Repurchase.
(a) The Purchaser or its designee shall provide the Seller with written
notice of any Material Breach or Material Document Defect with respect to any
Mortgage Loan. Within 90 days of the earlier of discovery or receipt
(including, without limitation, from any party to the Pooling and Servicing
Agreement) of written notice by the Seller that there has been a Material
Breach or Material Document Defect with respect to any Mortgage Loan (or, if
such Material Breach or Material Document Defect, as the case may be, relates
to whether such Mortgage Loan is or, as of the Closing Date, was a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (a "Qualified
Mortgage"), and provided that the Seller received prompt written notice
thereof, within 90 days after any earlier discovery by any party to the
Pooling and Servicing Agreement of such Material Breach or Material Document
Defect, as the case may be) (such 90-day period, in any case, the "Initial
Resolution Period"), the Seller shall, subject to Section 5(b) and Section
5(c) below, (i) correct or cure such Material Breach or Material Document
Defect, as the case may be, in all material respects or (ii) repurchase the
Mortgage Loan affected by such Material Breach or Material Document Defect, as
the case may be (such Mortgage Loan, a "Defective Mortgage Loan"), at the
related Purchase Price, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that, if the Seller shall
have delivered to the Purchaser a certification executed on behalf of the
Seller by an officer thereof stating (i) that such Material Breach or Material
Document Defect, as the case may be, does not relate to whether the Defective
Mortgage Loan is or, as of the Closing Date, was a Qualified Mortgage, (ii)
that such Material Breach or Material Document Defect, as the case may
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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, (iv) what actions the
Seller is pursuing in connection with the cure thereof and (v) that the Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be cured within an additional period not to exceed 90 more days,
then the Seller shall have an additional 90 days following the end of the
Initial Resolution Period (such additional 90-day period, the "Resolution
Extension Period") to complete such cure or, failing such, to repurchase the
Defective Mortgage Loan; and, provided, further, that the delivery of the
foregoing certification in connection with, and/or any attempt by the Seller
to cure, any alleged Breach or Document Defect shall not be deemed an
admission on the part of the Seller that such alleged Breach or Document
Defect is, in fact, a Breach or Document Defect, as the case may be, or more
particularly, that it is a Material Breach or Material Document Defect, as the
case may be. Any such repurchase of a Defective Mortgage Loan shall be on a
whole loan, servicing released basis. The Seller shall have no obligation to
monitor the Mortgage Loans regarding the existence of a Material Breach or
Material Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to any Mortgage Loan, it will notify the
Purchaser.
If the Borrower under any Early Defeasance Mortgage Loan indicates
that it intends (and, pursuant to the related loan documents, is entitled) to
defease such Mortgage Loan prior to the second anniversary of the "startup
day" (within the meaning of Section 860G(a)(9) of the Internal Revenue Code of
1986 (the "Code")) of the related Loan REMIC, and if the Purchaser or its
servicing agent so notifies the Seller in writing, then the Seller shall, by
the later of (i) the 10th day prior to the anticipated date of the defeasance
and (ii) the 10th day following the Seller's receipt of such notice,
repurchase such Mortgage Loan, at the related Purchase Price, with payment to
be made in accordance with the reasonable directions of the Purchaser.
The Seller acknowledges the rights of the applicable Master Servicer
and Special Servicer under Section 2.03 of the Pooling and Servicing Agreement
to enforce the repurchase obligations of the Seller under this Section 5(a),
on behalf of the Trustee for the benefit of the Certificateholders.
In connection with the repurchase of any Mortgage Loan held by a
Loan REMIC, pursuant to this Section 5(a), the Purchaser shall effect a
"qualified liquidation" of such Loan REMIC in accordance with the REMIC
Provisions.
If any Defective Mortgage Loan or Early Defeasance Mortgage Loan is
to be repurchased as contemplated by this Section 5(a), the Seller shall amend
the Mortgage Loan Schedule to reflect the removal of such Mortgage Loan and
shall forward such amended schedule to the Purchaser.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the subject Mortgage Loan or REO Property) shall not prejudice any claim of
the Trust against the Seller for repurchase of the subject Mortgage Loan or
REO Property. The remedies provided for in this Section 5(a) with respect to
any Material Breach or Material Document Defect as to any Mortgage Loan shall
also apply to any related REO Property. If (i) the Seller disputes its
obligation to cure any alleged
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Breach or Document Defect or to repurchase the related Mortgage Loan, (ii) the
related Mortgage Loan or any related REO Property is liquidated prior to the
resolution of that dispute and (iii) a court of competent jurisdiction issues
a final order that the Seller is or was obligated to repurchase the related
Mortgage Loan or REO Property or the Seller otherwise accepts liability, then,
after the expiration of any applicable appeal period, but in no event later
than the termination of the Trust pursuant to the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the amount, if
any, by which the applicable Purchase Price exceeds any payments, Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds and/or other amounts
received upon such liquidation (such payment to be deemed as payment of the
remaining unpaid portion of the applicable Purchase Price in connection with a
repurchase).
(b) If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group (as defined in Section 18) are to be repurchased by
the Seller as contemplated by Section 5(a), then, prior to the subject
repurchase, the Purchaser or its designee shall use its reasonable efforts,
subject to the terms of such Mortgage Loans, to prepare and, to the extent
necessary and appropriate, have executed by the related Borrower and record,
such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loans in such
Cross-Collateralized Group that are to be repurchased, on the one hand, and
the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto (as
to each such group, the "Primary Real Property Collateral"); provided that no
such termination shall be effected unless the Mortgage Loans from such
Cross-Collateralized Group that are to remain with the Purchaser have a
loan-to-value ratio of no more than 75% and a debt service coverage ratio of
no less than 1.25x; and provided, further, that, if the affected
Cross-Collateralized Group is then subject to the Pooling and Servicing
Agreement, then no such termination shall be affected unless and until the
Trustee and the Master Servicer shall have received from the Seller (i) an
Opinion of Counsel from independent counsel addressed to the Trustee, the
Master Servicer and the Rating Agencies to the effect that such termination
will not cause an Adverse REMIC Event to occur with respect to any REMIC Pool
or an Adverse Grantor Trust Event with respect to either Grantor Trust Pool
and (ii) written confirmation from each Rating Agency that such termination
will not cause an Adverse Rating Event to occur with respect to any Class of
Rated Certificates; and provided, further, that the Seller may, at its option,
purchase the entire subject Cross-Collateralized Group in lieu of terminating
the cross-collateralization. All costs and expenses incurred by the Purchaser,
its servicing agents and the Rating Agencies pursuant to this paragraph shall
be included in the calculation of Purchase Price for the Mortgage Loan(s) to
be repurchased.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the prior paragraph for
any reason (including, but not limited to, the Seller's failure to satisfy any
of the conditions set forth in the provisos to the first sentence of the prior
paragraph), and if the Seller has not elected to purchase the entire affected
Cross-Collateralized Group, then, for purposes of this Section 5, including
for purposes of (i) determining whether the particular Breach or Document
Defect that gave rise to the repurchase obligation for such
Cross-Collateralized Group 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.
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The parties hereto acknowledge that none of the Early Defeasance
Mortgage Loans is part of a Cross-Collateralized Group.
(c) It shall be a condition to any repurchase of a Defective Mortgage
Loan or Early Defeasance Mortgage Loan by the Seller pursuant to Section 5(a)
that the Purchaser (which shall include the Trustee) shall have executed and
delivered such instruments of transfer or assignment then presented to it by
the Seller, in each case without recourse, as shall be necessary to vest in
the Seller the legal and beneficial ownership of such Mortgage Loan (including
any property acquired in respect thereof or proceeds of any insurance policy
with respect thereto), to the extent that such ownership interest was
transferred to the Purchaser hereunder.
(d) It is understood and agreed that the obligations of the Seller set
forth in this Section 5 to cure a Material Breach or a Material Document
Defect, or to repurchase the related Defective Mortgage Loan(s), constitute
the sole remedies available to the Purchaser, the Certificateholders or the
Trustee on behalf of the Certificateholders with respect to a Breach or
Document Defect in respect of any Mortgage Loan; provided that there is no
limitation on the part of the Purchaser, the Certificateholders or the Trustee
on behalf of the Certificateholders, or any person or entity acting on its or
their behalf, with regard to enforcing such repurchase obligations or suing
for damages in the event of a breach of such repurchase obligations.
SECTION 6. Closing.
(a) The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing
Date.
(b) The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the Seller made
pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date or, in the case of any of the
representations and warranties made pursuant to Section 4(b), such other
date as specified in Exhibit C;
(ii) all documents specified in Section 7 of this Agreement
(the "Closing Documents"), in such forms as are reasonably
acceptable to the Purchaser and, in the case of the Pooling and
Servicing Agreement (insofar as it affects the obligations of the
Seller hereunder), to the Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective
terms thereof;
(iii) the Seller shall have delivered and released to the
Purchaser or its designee, all documents and funds required to be so
delivered pursuant to Section 2 of this Agreement;
(iv) all other terms and conditions of this Agreement required to
be complied with by the Seller and the Purchaser, including, without
limitation, in the case of the Purchaser, payment of the purchase
price, on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
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conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(v) the Seller shall have paid all fees, costs and expenses
payable by it to the Purchaser or otherwise pursuant to this
Agreement; and
(vi) neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
(c) Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents.
The Closing Documents shall consist of the following:
(a) this Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) the Indemnification Agreement duly executed and delivered by the
Seller, the Purchaser, SSBI, MII, CSFB and Xxxxxxx Xxxxx.
(c) the Pooling and Servicing Agreement duly executed and delivered by
SBMS VII, the Master Servicer, the Special Servicer and the Trustee;
(d) an Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, in
his or her individual capacity, and dated the Closing Date, and upon which
SBMS VII, SSBI, MII, CSFB, Xxxxxxx Xxxxx and the Rating Agencies
(collectively, the "Interested Parties") may rely, attaching thereto as
exhibits the organizational documents of the Seller, as in full force and
effect on the date hereof, and the Resolutions described in clause (g) below;
(e) a certificate of good standing with respect to the Seller issued by
the Secretary of State of the State of New York dated not earlier than 30 days
prior to the Closing Date;
(f) a certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Interested Parties may rely;
(g) resolutions of the Seller authorizing the specific transactions or
transactions of the type contemplated by this Agreement, which resolutions
will be in full force and effect, and will not have been rescinded, as of the
Closing Date;
(h) a written opinion of counsel for the Seller, which may be delivered
by in-house counsel, substantially in the form of Exhibit D-3A hereto (with
any modifications required by either Rating Agency), dated the Closing Date
and addressed to SBMS VII, each of the other parties to the Pooling and
Servicing Agreement and each of the other Interested Parties;
10
(i) a written opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, as special
counsel for the Seller, substantially in the form of Exhibit D-3B hereto (with
any modifications required by either Rating Agency), dated the Closing Date
and addressed to SBMS VII, each of the other parties to the Pooling and
Servicing Agreement and each of the other Interested Parties;
(j) such other written opinions as may be required by either Rating
Agency (including, without limitation, a favorable opinion as to the "true
sale" characterization of the transfer of the Mortgage Loans contemplated by
this Agreement);
(k) a written letter of Sidley Xxxxxx Xxxxx & Xxxx LLP, as special
counsel to the Seller, substantially in the form of Exhibit D-3C hereto,
relating to the disclosure in the Prospectus regarding the Mortgage Loans and
SBRC, dated the Closing Date and addressed to SSBI, MII, CSFB and Xxxxxxx
Xxxxx;
(l) with respect to each Loan REMIC, the related Loan REMIC Declaration
and a written opinion of counsel for the Seller, addressed to the Interested
Parties, to the effect that, assuming the election required by Section 860D(b)
of the Code is properly made, such Loan REMIC will qualify for treatment as a
REMIC for federal income tax purposes;
(m) one or more accountants' comfort letters, addressed, and in form and
substance reasonably acceptable, to SBMS VII, SSBI, MII, CSFB and Xxxxxxx
Xxxxx, relating to the information regarding the Mortgage Loans contained in
the Prospectus and Memorandum that is of a statistical nature; and
(n) such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date or any Rating Agency may
require and in a form reasonably acceptable to the Purchaser.
SECTION 8. Costs.
Any costs and expenses incurred by either party hereto in connection
with the transactions contemplated hereunder shall be borne by the parties in
accordance with the terms of that certain Term Sheet, dated March 28, 2002
(the "Term Sheet"), between SSBI and KeyBank National Association.
SECTION 9. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxx Xxxxx, facsimile no.:
000-000-0000, or to such other address or facsimile number as may hereafter be
furnished to the Seller in writing by the Purchaser; and, if to the Seller,
addressed to the Seller at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Xxxxxx Xxxxx, facsimile no.: 000-000-0000, or to such other address
or facsimile number as may hereafter be furnished to the Purchaser in writing
by the Seller.
11
SECTION 10. Characterization.
The parties hereto agree that it is their express intent that the
conveyance contemplated by this Agreement be, and be treated for all purposes
as, a sale by the Seller of all the Seller's right, title and interest in and
to the Mortgage Loans and the Loan REMIC Interests. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans and the Loan REMIC Interests by the Seller to secure a debt or
other obligation of the Seller. However, in the event that, notwithstanding
the intent of the parties, the Mortgage Loans and the Loan REMIC Interests are
held to continue to be property of the Seller, then: (a) this Agreement shall
be deemed to be a security agreement under applicable law; (b) the transfer of
the Mortgage Loans and the Loan REMIC Interests provided for herein shall be
deemed to be a grant by the Seller to the Purchaser of a first priority
security interest in all of the Seller right, title and interest in and to the
Mortgage Loans and the Loan REMIC Interests and all amounts payable to the
holder(s) of those assets in accordance with the terms thereof (other than
scheduled payments of interest and principal due on or before the Cut-off
Date) and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property; (c) the
assignment by SBMS VII to the Trustee of its interests in the Mortgage Loans
and the Loan REMIC Interests as contemplated by Section 16 hereof shall be
deemed to be an assignment of any security interest created hereunder; (d) the
possession by the Purchaser or any successor thereto of the related Mortgage
Notes and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest under
applicable law; and (e) notifications to, and acknowledgments, receipts or
confirmations from, persons or entities holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents (as applicable) of the Purchaser
for the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the Loan REMIC
Interests, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of this Agreement and the Pooling and Servicing Agreement.
In connection with the foregoing, the Seller authorizes the Purchaser to
execute and file such UCC financing statements as the Purchaser may deem
necessary or appropriate to accomplish the foregoing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates
of officers of the Seller submitted pursuant hereto, shall remain operative
and in full force and effect and shall survive delivery of the Mortgage Loans
and the Loan REMIC Interests by the Seller to the Purchaser, notwithstanding
any restrictive or qualified endorsement or assignment in respect of any
Mortgage Loan or Loan REMIC Interests.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of
12
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant
of this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of law
which prohibits or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE
AND TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, THE SELLER AND THE PURCHASER EACH HEREBY IRREVOCABLY (I)
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN
INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION
OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS
BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans and the Loan REMIC Interests to the Trust as contemplated by
the recitals hereto, SBMS VII is expressly authorized to assign its rights and
obligations under this Agreement, in whole or in part, to the Trustee for the
13
benefit of the registered holders and beneficial owners of the Certificates.
To the extent of any such assignment, the Trustee (including, without
limitation, when acting through the Master Servicer and Special Servicer
pursuant to the terms of the Pooling and Servicing Agreement), for the benefit
of the registered holders and beneficial owners of the Certificates, shall be
the Purchaser hereunder. In connection with the transfer of any Mortgage Loan
by the Trust as contemplated by the terms of the Pooling and Servicing
Agreement, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, is expressly authorized to assign its
rights and obligations under this Agreement, in whole or in part, to the
transferee of such Mortgage Loan. To the extent of any such assignment, such
transferee shall be the Purchaser hereunder (but solely with respect to such
Mortgage Loan that was transferred to it). Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser, and their respective successors and permitted
assigns.
SECTION 17. Amendments.
(a) No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced.
(b) Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, no amendment of the Pooling and Servicing
Agreement executed after the Closing Date that increases the obligations of or
otherwise adversely affects the Seller, shall be effective against the Seller,
and the Purchaser shall not agree to any such amendment that has any such
effect.
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
14
herein, and this Agreement supersedes any prior agreements and/or
understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of
the date first above written.
SALOMON BROTHERS REALTY CORP.
By:____________________________
Name:
Title:
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
By:____________________________
Name:
Title:
EXHIBIT A
SBRC Mortgage Loan Schedule
Property
Control Loan Loan Property Size Unit
Number Loan/Property Name Number Seller Property Address City State Zip Code Size Type
000 Xxxxxxxx Xxxxx 7001724 SBRC 00 Xxxxx Xxxxxx Xxxxxx XX 00000 1,121,606 SF
----------------------------------------------------------------------------------------------------------------------------------
000 Xxx Xxxxxxx and 7003343 SBRC 000
Xxxxxxxxx Xxxxxxxxxx
000x Xxxxxxxxx Apartments 7003343a 0000 Xxxxx Xxxxx Xxxxxxx Xxxx XX 00000 000 Xxxxx
Xxxxxxx
000x The Commons Apartments 7003343b 0000 Xxxxxxxxx Xxxxx Xxxxx XX 00000 200 Units
----------------------------------------------------------------------------------------------------------------------------------
107 Del Oro Apartments 7003339 SBRC 0000-0000 Xxxxxxxxx Xx. Xxxxxxxxxx XX 00000 000 Xxxxx
00xx Xxxxxx
108 Country Club Villas 7003346 SBRC 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 258 Units
Apartments
109 Royal Crest 7003350 SBRC 0000 Xxxxx Xxxx Xxxxx XX 00000 128 Units
Apartments
111 Wilton Executive 7003003 SBRC 00-00 Xxxxx Xxxx & Xxxxxx XX 00000 188,130 SF
Campus 00 Xxxxx Xxxx
000 Xxxxxx Xxxxxx Xxxxx 0000000 SBRC 000 Xxxxxx Xxxxxx Xxxx Xxxxxx XX 00000 285,263 SF
113 Northlake Apartments 7004458 SBRC 00000 Xxxx Xxxxx Xxxxxxxxxx XX 00000 000 Xxxxx
Xxxxx
114 The Aventine Apartments 7003330 SBRC 0000 Xxxxx Xxxxxx Xxxxxx XX 00000 000 Xxxxx
Xxxx
000 Xxxxx Xxxxx Xxxxxxxxxx 0000000 SBRC 0000 Xxxx 00xx Xxxxxx Xxxxxxxxxx XX 00000 282 Units
116 Villas at Sunrise 7004771 SBRC 0000 Xxxx Xxxxxx Xxx Xxxxx XX 00000 000 Xxxxx
Xxxxxxxx Xxxxxx
117 The Shops at Town 7003378 SBRC 19700-19738 Xxxxxxxxxx XX 00000 000,000 XX
Xxxxxx Xxxxxxxxxx Xxxx
120 Overlook at Central 7003983 SBRC 000 Xxxxxxxxx 00xx Xxxxx XX 00000 000 Xxxxx
Xxxxxx Xxxxxx
121 Reserve at 7002525 SBRC 000 Xxxxx Xxxxx Xxxxxxxxxxxx XX 00000 000 Xxxxx
Xxxxxxxxxxxx Xxxxxxx
000 Xxx Xxxx Xxxxxxxxxx 0000000 SBRC 00000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 207 Units
000 Xxxxx xx Xxxxxxxx 0000000 SBRC 0000-0000 Xxxxxxxx Xx Xxxxxx XX 00000 127,132 SF
Boulevard
000 Xxxxxxxxxx Xxxxxx 7003587 SBRC 13600-13802 Xxxx Xxxxx XX 00000 119,332 SF
Xxxxx Xxxx 00
000 Xxxxxxxx Xxxx 7003287 SBRC 0000 00xx Xxxxxx Xxxxxx XX 00000 269,526 SF
Southeast
127 Seekonk Crossing 7003996 SBRC 145-201 Highland Xxxxxxx XX 00000 000,000 XX
Xxxxxx
000 Xxxxx xx Xxxxxxxxx 7005181 SBRC 0000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000 412 Units
Crossing Apartments
130 Three Fountain 7003564 SBRC 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000 410 Units
Apartments
133 Phoenix Hazeltree 7004177 SBRC 0000 Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000 310 Units
Apartments
134 Xxxxxx Xxxxx Centre 7001097 SBRC 0000 Xxxxxx X Xxxxx XX 00000 208,794 SF
135 Food 4 Less 7002471 SBRC 00000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 58,944 SF
Gardens
136 AAA Quality 7003632 SBRC 0000 Xxxx Xxxxx Xxxx Xxxxx XX 00000 95,256 SF
Storage-Long Beach Boulevard
137 Chatsworth Imperial 6602999 SBRC 00000 Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000 184 Pads
Mobile Home Park
000 Xxx Xxxx Xxxxx 0000000 SBRC 0000-0000 Xxxx 000 Xxxxxx XX 00000 69,263 SF
Shopping Center South
141 000 Xxxxxxx Xxxxxx 7004263 SBRC 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 65,583 SF
143 Xxxx Point Xxxxxx 6603000 SBRC 00000 Xxx Xxxxxx Xxxx Xxxx Xxxxx XX 00000 90 Pads
Mobile Home Park
144 Parkview Towers 7003565 SBRC 00000 Xxxxxxxx Xxxxxx XX 00000 000 Xxxxx
Xxxxxxxxxx Xxxxxxxxx
146 Broad Creek Crossing 7003456 SBRC 0000-0000 Xxxxx Xxxxxxx XX 00000 66,796 SF
Shopping Center Military Highway
147 Country Xxxxx Village 7001600 SBRC 0000 Xxxxxxx Xxxxxxx Xxxxxx XX 00000 000 Xxxxx
Xxxxx
148 Lincoln Plaza 7003332 SBRC 0000-0000 Xxx Xxxxx Xxxxxxxxx XX 00000 59,988 SF
Shopping Center Boulevard
149 East-West Medical 7001423 SBRC 0000 Xxxx Xxxxxx Xxx Xxxxxxx XX 00000 41,398 SF
Center
000 Xxxxxxx Xxxxxx 7004056 SBRC 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 000 Xxxxx
Xxxxxxxxxx Xxxxxxxxx
152 Villatree Apartments 7003667 SBRC 0000 Xxxxx Xxxxx Xxxx Xxxxx XX 00000 150 Units
153 Xxxxxxx'x Ridge 7003586 SBRC 0000 Xxxxx Xxxxxxxxx Xxxxxxx XX 00000 196 Units
000 Xxxxx Xxxxxxxxx XXX 0000000 SBRC 0000 Xxxxxxxxxxxx Xxxxxxx XX 00000 000 Xxxxx
Xxxxxxxxxx Xxxxx
155 Normandy Business 7001555 SBRC 0000 Xxxx 000xx Xxxxxxx XX 00000 76,635 XX
Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxx 0000000 SBRC 0000-0000 Xxxx Xxxx Xxxxxxx XX 00000 32,114 SF
Road
157 Northbrook Atrium 7003969 SBRC 0000 Xxxx Xxxxxxxxx Xxxxxx XX 00000 140,248 SF
Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx
000 Xxxxxx Xxxxx 7004350 SBRC 0000 Xxxxx Xxxxxx Xxxxxxx XX 00000 63 Xxxxx
Xxxxxxxxxx
000 00 Xxxxx Xxxxxx 6601322 SBRC 00 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 120,280 SF
000 Xxxxxxxxx Xxxxx 6603456 SBRC X.X. Xxxxxxx 00 Xxxxxxxxx XX 00000 50,900 SF
Shopping Center
A-1
Schedule of SBRC Mortgage Loans
Cross
Collater-
alized
Mortgage
Loan
Cross Group
Collater- Aggregate
alized Cut-Off
(Mortgage Date Original
Control Loan Principal Ownership Principal Mortgage
Number Loan/Property Name Group) Balance Interest Balance Rate
000 Xxxxxxxx Xxxxx No 153,096,151 Leasehold 165,000,000 6.9100%
----------------------------------------------------------------------------------------------------------------------------
The Commons and Greentree
106 Apartments Yes(X1) 40,241,559 21,200,000 7.3900%
106a Greentree Apartments Fee Simple
106b The Commons Apartments Fee Simple
----------------------------------------------------------------------------------------------------------------------------
107 Del Oro Apartments Yes(X1) 40,241,559 Fee Simple 8,760,000 7.3900%
000 Xxxxxxx Xxxx Xxxxxx Xxx(X0) 40,241,559 Fee Simple 7,520,000 7.3900%
Apartments
000 Xxxxx Xxxxx Xxxxxxxxxx Xxx(X0) 40,241,559 Fee Simple 2,964,000 7.3900%
111 Wilton Executive Campus No 24,430,112 Fee Simple 24,634,000 7.9600%
000 Xxxxxx Xxxxxx Plaza No 19,984,902 Fee Simple 20,135,000 7.1000%
113 Northlake Apartments No 19,803,900 Fee Simple 19,872,000 7.1500%
000 Xxx Xxxxxxxx Xxxxxxxxxx Xx 19,248,639 Fee Simple 19,390,885.44(d) 6.9500%
000 Xxxxx Xxxxx Apartments No 16,944,314 Fee Simple 17,000,000 7.3250%
116 Villas at Sunrise Mountain No 16,465,347 Fee Simple 16,500,000 6.9700%
117 The Shops at Town Center No 16,000,000 Fee Simple 16,000,000 7.3400%
120 Overlook at Central Pointe No 14,263,571 Fee Simple 14,300,000 7.2400%
121 Reserve at Jacksonville No 13,964,829 Fee Simple 14,000,000 7.2900%
Commons
000 Xxx Xxxx Xxxxxxxxxx No 13,600,749 Fee Simple 13,648,000 7.1100%
123 Plaza de Hacienda No 12,959,763 Fee Simple 13,000,000 7.5400%
000 Xxxxxxxxxx Xxxxxx No 12,934,050 Fee Simple 13,000,000 7.3300%
000 Xxxxxxxx Xxxx No 12,384,773 Fee Simple 12,500,000 7.1700%
127 Seekonk Crossing No 12,331,089 Fee Simple 12,400,000 7.4100%
Pines of Northwest
Crossing
128 Apartments No 10,983,360 Fee Simple 11,000,000 6.3500%
130 Three Fountain Apartments No 10,177,880 Fee Simple 10,240,000 7.0300%
133 Phoenix Hazeltree Apartments No 8,976,172 Fee Simple 9,000,000 7.1000%
134 Xxxxxx Xxxxx Centre No 8,382,039 Fee Simple 8,500,000 7.7200%
135 Food 4 Less No 8,054,457 Fee Simple 8,100,000 7.3600%
136 AAA Quality Storage-Long No 7,259,432 Fee Simple 7,300,000 7.4100%
Beach Chatsworth Imperial
Mobile Home
137 Park No 7,243,657 Fee Simple 7,440,000 7.8200%
000 Xxx Xxxx Xxxxx Shopping No 6,086,340 Fee Simple 6,100,000 7.6900%
Center
141 000 Xxxxxxx Xxxxxx No 5,970,564 Fee Simple 6,000,000 7.7400%
Xxxx Point Xxxxxx
Mobile Home
143 Park No 5,426,235 Fee Simple 5,600,000 7.3700%
144 Parkview Towers Apartments No 5,327,484 Fee Simple 5,360,000 7.0300%
Broad Creek Crossing
Shopping
146 Center No 5,067,562 Leasehold 5,100,000 7.2600%
000 Xxxxxxx Xxxxx Xxxxxxx No 4,937,313 Fee Simple 5,000,000 7.1500%
000 Xxxxxxx Xxxxx Shopping No 4,840,871 Fee Simple 4,866,000 7.2500%
Center
000 Xxxx-Xxxx Xxxxxxx Xxxxxx No 4,763,378 Fee Simple 4,800,000 7.3500%
000 Xxxxxxx Xxxxxx Apartments No 4,743,646 Fee Simple 4,760,000 7.1400%
152 Villatree Apartments No 4,615,286 Fee Simple 4,640,000 7.1100%
000 Xxxxxxx'x Xxxxx No 4,572,973 Fee Simple 4,600,000 7.1700%
154 Three Fountains III No 4,557,766 Fee Simple 4,600,000 7.9000%
Apartments
000 Xxxxxxxx Xxxxxxxx Xxxxxx No 4,448,759 Fee Simple 4,500,000 7.5500%
000 Xxxxxxx Xxxxx No 4,390,830 Fee Simple 4,425,000 7.3000%
Northbrook Xxxxxx Xxxxx
Xxxxxx
000 Xxxxxxxx Xx 4,288,069 Fee Simple 4,300,000 7.9400%
000 Xxxxxx Xxxxx Apartments No 3,590,469 Fee Simple 3,600,000 7.1000%
163 00 Xxxxx Xxxxxx No 3,024,623 Fee Simple 3,360,000 7.1500%
000 Xxxxxxxxx Xxxxx Shopping No 2,937,849 Fee Simple 3,000,000 8.3100%
Center
Antici-
pated Sched-
Adminis- Interest Repay- uled
Control trative Rate Accrual Loan Note ment Maturity
Number Loan/Property Name Fee Rate Type Method Type Date Date Date
000 Xxxxxxxx Xxxxx 0.0625% Fixed Actual/360 ARD 04/01/98 03/31/08 03/31/23
-------------------------------------
The Commons and Greentree 0.0625% Fixed Actual/360 Balloon 01/17/02 NAP 02/01/12
106 Apartments
000x Xxxxxxxxx Xxxxxxxxxx
000x Xxx Xxxxxxx Apartments
-------------------------------------
107 Del Oro Apartments 0.0625% Fixed Actual/360 Balloon 01/17/02 NAP 02/01/12
108 Country Club Villas 0.0625% Fixed Actual/360 Balloon 01/17/02 NAP 02/01/12
Apartments
000 Xxxxx Xxxxx Apartments 0.0625% Fixed Actual/360 Balloon 01/17/02 NAP 02/01/12
111 Wilton Executive Campus 0.0825% Fixed Actual/360 Balloon 06/06/01 NAP 07/01/11
000 Xxxxxx Xxxxxx Plaza 0.0625% Fixed Actual/360 Balloon 10/24/01 NAP 11/01/11
113 Northlake Apartments 0.0725% Fixed Actual/360 Balloon 03/21/02 NAP 04/01/12
000 Xxx Xxxxxxxx Apartments 0.0625% Fixed Actual/360 Balloon 01/15/02 NAP 10/01/08
000 Xxxxx Xxxxx Apartments 0.0975% Fixed Actual/360 Balloon 04/01/02 NAP 04/01/12
116 Villas at Sunrise Mountain 0.0825% Fixed Actual/360 Balloon 05/02/02 NAP 06/01/12
Partial I0
117 The Shops at Town Center 0.1025% Fixed Actual/360 Balloon 03/28/02 NAP 04/01/12
120 Overlook at Central Pointe 0.0625% Fixed Actual/360 Balloon 04/11/02 NAP 05/01/12
121 Reserve at Jacksonville 0.0625% Fixed Actual/360 Balloon 04/09/02 NAP 05/01/12
Commons
122 Oak Mill Apartments 0.0725% Fixed Actual/360 Balloon 03/21/02 NAP 04/01/12
123 Plaza de Hacienda 0.1025% Fixed Actual/360 Balloon 03/21/02 NAP 04/01/12
000 Xxxxxxxxxx Xxxxxx 0.0925% Fixed Actual/360 Balloon 01/31/02 NAP 02/01/12
000 Xxxxxxxx Xxxx 0.0925% Fixed Actual/360 Balloon 12/03/01 NAP 01/01/12
127 Seekonk Crossing 0.0725% Fixed Actual/360 Balloon 12/28/01 NAP 01/01/12
Pines of Northwest
Crossing
128 Apartments 0.0625% Fixed Actual/360 Balloon 07/01/02 NAP 07/01/07
130 Three Fountain Apartments 0.0625% Fixed Actual/360 Balloon 12/11/01 NAP 01/01/12
133 Phoenix Hazeltree Apartments 0.0625% Fixed Actual/360 Balloon 04/30/02 NAP 05/01/12
134 Xxxxxx Xxxxx Centre 0.1125% Fixed Actual/360 Balloon 11/27/00 NAP 12/01/10
135 Food 4 Less 0.0825% Fixed Actual/360 Balloon 12/19/01 NAP 01/01/12
136 AAA Quality Storage-Long 0.1025% Fixed Actual/360 Balloon 12/13/01 NAP 01/01/07
Beach Chatsworth Imperial
Mobile Home
137 Park 0.0625% Fixed Actual/360 Balloon 05/10/99 NAP 06/01/09
000 Xxx Xxxx Xxxxx Shopping 0.0625% Fixed Actual/360 Balloon 04/05/02 NAP 05/01/12
Center
141 000 Xxxxxxx Xxxxxx 0.1025% Fixed Actual/360 Balloon 03/04/02 NAP 04/01/12
Xxxx Point Marina
Mobile Home
143 Park 0.0625% Fixed Actual/360 Balloon 03/23/99 NAP 04/01/09
144 Parkview Towers Apartments 0.0625% Fixed Actual/360 Balloon 12/14/01 NAP 01/01/12
Broad Creek Crossing
Shopping
146 Center 0.1225% Fixed Actual/360 Balloon 11/30/01 NAP 12/01/11
000 Xxxxxxx Xxxxx Xxxxxxx 0.0625% Fixed Actual/360 Balloon 03/29/01 NAP 04/01/11
000 Xxxxxxx Xxxxx Shopping 0.1225% Fixed Actual/360 Balloon 01/17/02 NAP 02/01/12
Center
149 East-West Medical Center 0.1125% Fixed Actual/360 Balloon 09/10/01 NAP 10/01/11
000 Xxxxxxx Xxxxxx Apartments 0.0625% Fixed Actual/360 Balloon 03/01/02 NAP 04/01/12
152 Villatree Apartments 0.0625% Fixed Actual/360 Balloon 01/18/02 NAP 02/01/12
000 Xxxxxxx'x Xxxxx 0.0625% Fixed Actual/360 Balloon 12/28/01 NAP 01/01/12
154 Three Fountains III 0.1225% Fixed Actual/360 Balloon 08/22/01 NAP 07/01/09
Apartments
000 Xxxxxxxx Xxxxxxxx Xxxxxx 0.1125% Fixed Actual/360 Balloon 03/06/01 NAP 04/01/06
000 Xxxxxxx Xxxxx 0.0625% Fixed Actual/360 Balloon 09/26/01 NAP 10/01/11
Northbrook Atrium Plaza
Office
157 Building 0.0625% Fixed Actual/360 Balloon 04/01/02 NAP 04/01/12
000 Xxxxxx Xxxxx Apartments 0.1225% Fixed Actual/360 Balloon 04/30/02 NAP 05/01/12
Fully
000 00 Xxxxx Xxxxxx 0.0625% Fixed Actual/360 Amortizing 08/10/98 NAP 09/01/18
000 Xxxxxxxxx Xxxxx Shopping 0.1025% Fixed Actual/360 Balloon 09/15/99 NAP 10/01/09
Center
Footnotes:
-----------------------------
(d) The Original Balance, Mortgage Rate, Note Date and First Payment Date
were $17,000,000, 6.590%, September 8, 1998 and November 1, 1998,
respectively. On January 15, 2002, the then outstanding loan amount of
$16,406,244.30 was increased to $19,406,244.30 and the Mortgage Rate was
changed to 6.950%. The Original Balance shown above represents the loan
amount as of February 1, 2002, following the application of the specified
February 2002 debt service payment of $108,459.74, which consisted of
$2,723.97 of principal and $105,735.77 of interest, and an extraordinary
principal payment of $12,634.89 that was paid during the month of January
2002.
A-2
Schedule of SBRC Mortgage Loans
Stated Remain- Stated
Original Original ing Remaining
Monthly Term to Amort- Term to Amort- Cut-off Loan
Debt Interest Maturity/ ization Maturity ization Date Balance at
Control Service Grace Only ARD Term /ARD Term Principal Maturity/
Number Loan /Property Name Payment Period Period (months) (months) (months) (months) Balance ARD
000 Xxxxxxxx Xxxxx 1,156,730.00 3 NAP 120 300 67 247 153,096,151.10 131,647,547.04
---------------------------------------------------------------------------------------------------------------------------------
000 Xxx Xxxxxxx and Greentree 146,639.92 5 NAP 120 360 113 353 21,093,883.90 18,667,734.59
Apartments
000x Xxxxxxxxx Xxxxxxxxxx
000x Xxx Xxxxxxx Apartments
----------------------------------------------------------------------------------------------------------------------------------
107 Del Oro Apartments 60,592.72 5 NAP 120 360 113 353 8,716,152.04 7,713,649.12
000 Xxxxxxx Xxxx Xxxxxx 52,015.67 5 NAP 120 360 113 353 7,482,358.82 6,621,762.41
Apartments
000 Xxxxx Xxxxx Xxxxxxxxxx 20,501.92 5 NAP 120 360 113 353 2,949,163.77 2,609,960.79
111 Wilton Executive Campus 180,069.12 5 NAP 120 360 106 346 24,430,112.23 22,011,725.22
000 Xxxxxx Xxxxxx Xxxxx 135,313.64 5 NAP 120 360 110 350 19,984,901.78 17,601,551.08
113 Northlake Apartments 134,216.83 5 NAP 120 360 115 355 19,803,899.89 17,403,236.65
000 Xxx Xxxxxxxx Apartments 133,308.89 10 NAP 80 320 73 313 19,248,639.03 17,413,114.17
000 Xxxxx Xxxxx Apartments 116,836.02 5 NAP 120 360 115 355 16,944,314.21 14,955,655.42
116 Villas at Sunrise Mountain 109,442.67 5 NAP 120 360 117 357 16,465,347.37 14,381,277.58
117 The Shops at Town Center 110,126.62 5 11 120 360 115 360 16,000,000.00 14,327,617.58
120 Overlook at Central Pointe 97,454.23 5 NAP 120 360 116 356 14,263,571.30 12,554,348.49
121 Reserve at Jacksonville 95,884.81 5 NAP 120 360 116 356 13,964,829.12 12,306,867.42
Commons
000 Xxx Xxxx Xxxxxxxxxx 91,810.97 5 NAP 120 360 115 355 13,600,749.44 11,939,949.12
123 Plaza de Hacienda 91,254.22 5 NAP 120 360 115 355 12,959,762.99 11,499,228.26
000 Xxxxxxxxxx Xxxxxx 89,389.41 5 NAP 120 360 113 353 12,934,050.48 11,429,767.75
000 Xxxxxxxx Xxxx 89,707.60 5 NAP 120 300 112 292 12,384,772.73 10,048,252.27
127 Seekonk Crossing 85,939.70 5 NAP 120 360 112 352 12,331,089.11 10,926,185.38
000 Xxxxx xx Xxxxxxxxx Crossing 68,445.93 5 NAP 60 360 58 358 10,983,359.99 10,337,626.00
Apartments
130 Three Fountain Apartments 68,333.41 5 NAP 120 360 112 352 10,177,880.29 8,934,814.56
133 Phoenix Hazeltree 60,482.88 5 NAP 120 360 116 356 8,976,171.77 7,872,504.79
Apartments
134 Xxxxxx Xxxxx Centre 60,718.92 10 NAP 120 360 99 339 8,382,038.68 7,548,598.18
135 Food 4 Less 55,861.90 5 NAP 120 360 112 352 8,054,456.94 7,128,218.99
136 AAA Quality Storage-Long 50,593.53 5 NAP 60 360 52 352 7,259,431.52 6,946,445.29
Beach
137 Chatsworth Imperial Mobile 53,661.41 10 NAP 120 360 81 321 7,243,656.88 6,627,196.42
Home Park
000 Xxx Xxxx Xxxxx Shopping 43,448.50 5 NAP 120 360 116 356 6,086,339.86 5,416,715.63
Center
141 000 Xxxxxxx Xxxxxx 45,280.34 5 NAP 120 300 115 295 5,970,563.95 4,909,679.35
000 Xxxx Xxxxx Marina Mobile 38,658.73 10 NAP 120 360 79 319 5,426,235.04 4,932,658.13
Home Park
144 Parkview Towers Apartments 35,768.27 5 NAP 120 360 112 352 5,327,484.21 4,676,816.87
000 Xxxxx Xxxxx Crossing 34,825.59 5 NAP 120 360 111 351 5,067,561.69 4,477,377.90
Shopping Center
000 Xxxxxxx Xxxxx Xxxxxxx 33,770.34 5 NAP 120 360 103 343 4,937,313.46 4,377,712.25
000 Xxxxxxx Xxxxx Shopping 33,194.70 5 NAP 120 360 113 353 4,840,871.29 4,269,501.76
Center
000 Xxxx-Xxxx Xxxxxxx Xxxxxx 33,070.66 5 NAP 120 360 109 349 4,763,377.89 4,223,897.76
000 Xxxxxxx Xxxxxx Apartments 32,117.21 5 NAP 120 360 115 355 4,743,646.03 4,167,559.43
152 Villatree Apartments 31,213.58 5 NAP 120 360 113 353 4,615,285.62 4,056,476.96
000 Xxxxxxx'x Xxxxx 31,130.89 5 NAP 120 360 112 352 4,572,973.49 4,028,408.47
154 Three Fountains III 34,092.67 5 NAP 94 334 82 322 4,557,765.70 4,159,912.96
Apartments
000 Xxxxxxxx Xxxxxxxx Xxxxxx 31,618.87 5 NAP 60 360 43 343 4,448,758.82 4,289,158.71
000 Xxxxxxx Xxxxx 30,336.51 5 NAP 120 360 109 349 4,390,830.41 3,888,928.02
000 Xxxxxxxxxx Xxxxxx Xxxxx 31,372.21 5 NAP 120 360 115 355 4,288,068.57 3,841,145.79
Office Building
000 Xxxxxx Xxxxx Apartments 24,193.15 5 NAP 120 360 116 356 3,590,468.72 3,149,002.27
000 00 Xxxxx Xxxxxx 26,353.43 10 NAP 240 240 192 192 3,024,622.84 112,923.04
000 Xxxxxxxxx Xxxxx Shopping 22,664.66 10 NAP 120 360 85 325 2,937,848.59 2,703,328.35
Center
A-3
Schedule of SBRC Mortgage Loans
Yield
Maintenance
Interest
Yield Rate Yield
Mainten- Yield Converted Maintenance
Defease- ance Mainten- Prepayment Yield Yield to Interest
ance Defease Period ance Penalty Prepayment Maintenance Maintenance Monthly Rate
Control Start -ance Start Period Start Penalty Calculation Interest Mortgage Reference
Numeber Loan/Property Name Date End Date Date End Date Date End Date Method Rate Rate Date
000 Xxxxxxxx Xxxxx 10/01/04 10/31/07 05/01/02 10/31/07 NAP NAP Present T-Flat No Maturity
Value
-----------------------------------------------------------------------------------------------------------------------------------
106 The Commons and 10/01/04 12/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
Greentree Apartments
000x Xxxxxxxxx Xxxxxxxxxx
000x Xxx Xxxxxxx Apartments
----------------------------------------------------------------------------------------------------------------------------------
107 Del Oro Apartments 10/01/04 12/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
108 Country Club Villas 10/01/04 12/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
Apartments
000 Xxxxx Xxxxx 10/01/04 12/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
Apartments
111 Wilton Executive 10/01/04 05/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
Campus
000 Xxxxxx Xxxxxx Plaza 10/01/04 09/30/11 NAP NAP NAP NAP NAP NAP NAP NAP
113 Northlake Apartments 10/01/04 01/31/12 NAP NAP NAP NAP NAP NAP NAP NAP
000 Xxx Xxxxxxxx 10/01/04 06/30/08 NAP NAP NAP NAP NAP NAP NAP NAP
Apartments
000 Xxxxx Xxxxx 10/01/04 01/31/12 NAP NAP NAP NAP NAP NAP NAP NAP
Apartments
116 Villas at Sunrise 10/01/04 04/30/12 NAP NAP NAP NAP NAP NAP NAP NAP
Mountain
117 The Shops at Town 10/01/04 01/31/12 NAP NAP NAP NAP NAP NAP NAP NAP
Center
120 Overlook at Central 10/01/04 02/29/12 NAP NAP NAP NAP NAP NAP NAP NAP
Pointe
121 Reserve at 10/01/04 02/29/12 NAP NAP NAP NAP NAP NAP NAP NAP
Jacksonville
Commons
122 Oak Mill Apartments 10/01/04 01/31/12 NAP NAP NAP NAP NAP NAP NAP NAP
123 Plaza de Hacienda 10/01/04 01/31/12 NAP NAP NAP NAP NAP NAP NAP NAP
000 Xxxxxxxxxx Xxxxxx 10/01/04 12/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
000 Xxxxxxxx Xxxx 10/01/04 11/30/11 NAP NAP NAP NAP NAP NAP NAP NAP
127 Seekonk Crossing 10/01/04 11/30/11 NAP NAP NAP NAP NAP NAP NAP NAP
000 Xxxxx xx Xxxxxxxxx 10/01/04 05/31/07 NAP NAP NAP NAP NAP NAP NAP NAP
Crossing
Apartments
130 Three Fountain 10/01/04 10/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
Apartments
133 Phoenix Hazeltree 10/01/04 02/29/12 NAP NAP NAP NAP NAP NAP NAP NAP
Apartments
134 Xxxxxx Xxxxx Centre 10/01/04 09/30/10 NAP NAP NAP NAP NAP NAP NAP NAP
135 Food 4 Less 10/01/04 10/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
136 AAA Quality 10/01/04 10/31/06 NAP NAP NAP NAP NAP NAP NAP NAP
Storage-Long
Beach
137 Chatsworth Imperial 06/01/03 02/28/09 NAP NAP NAP NAP NAP NAP NAP NAP
Mobile Home Park
000 Xxx Xxxx Xxxxx 10/01/04 02/29/12 NAP NAP NAP NAP NAP NAP NAP NAP
Shopping Center
141 000 Xxxxxxx Xxxxxx 10/01/04 01/31/12 NAP NAP NAP NAP NAP NAP NAP NAP
000 Xxxx Xxxxx Xxxxxx 04/01/03 01/31/09 NAP NAP NAP NAP NAP NAP NAP NAP
Mobile
Home Park
144 Parkview Towers 10/01/04 10/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
Apartments
146 Broad Creek 10/01/04 09/30/11 NAP NAP NAP NAP NAP NAP NAP NAP
Crossing
Shopping Center
147 Country Xxxxx 10/01/04 01/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
Village
000 Xxxxxxx Xxxxx 10/01/04 11/30/11 NAP NAP NAP NAP NAP NAP NAP NAP
Shopping Center
149 East-West Medical 10/01/04 07/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
000 Xxxxxxx Xxxxxx 10/01/04 01/31/12 NAP NAP NAP NAP NAP NAP NAP NAP
Apartments
152 Villatree Apartments 10/01/04 11/30/11 NAP NAP NAP NAP NAP NAP NAP NAP
000 Xxxxxxx'x Xxxxx 10/01/04 10/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
154 Three Fountains III 10/01/04 04/30/09 NAP NAP NAP NAP NAP NAP NAP NAP
Apartments
155 Normandy Business 10/01/04 01/31/06 NAP NAP NAP NAP NAP NAP NAP NAP
Center
000 Xxxxxxx Xxxxx 10/01/04 07/31/11 NAP NAP NAP NAP NAP NAP NAP NAP
157 Northbrook Atrium 10/01/04 01/31/12 NAP NAP NAP NAP NAP NAP NAP NAP
Xxxxx
Xxxxxx Xxxxxxxx
000 Xxxxxx Xxxxx 10/01/04 02/29/12 NAP NAP NAP NAP NAP NAP NAP NAP
Apartments
163 35 Xxxxx Street 10/01/01 06/30/18 NAP NAP NAP NAP NAP NAP NAP NAP
000 Xxxxxxxxx Xxxxx 10/01/03 07/31/09 NAP NAP NAP NAP NAP NAP NAP NAP
Shopping
Center
A-4
Schedule of SBRC Mortgage Loans
Holdback Holdback
Current is a
Holdback Balance Letter
Control Original as of of
Number Loan/Property Name Loan Originator Balance 6/1/02 Credit Holdback Description
000 Xxxxxxxx Xxxxx Citicorp Real NAP NAP NAP NAP
Estate, Inc.
---------------------------------------------------------------------------------------------------------------------------------
000 Xxx Xxxxxxx and Salomon Brothers NAP NAP NAP NAP
Greentree Apartments Realty Co.
106a Greentree Apartments NAP NAP NAP NAP
106b The Commons Apartments NAP NAP NAP NAP
----------------------------------------------------------------------------------------------------------------------------------
107 Del Oro Apartments Salomon Brothers NAP NAP NAP NAP
Realty Co.
108 Country Club Villas Salomon Brothers NAP NAP NAP NAP
Apartments Realty Co.
109 Royal Crest Salomon Brothers NAP NAP NAP NAP
Apartments Realty Co.
111 Wilton Executive Salomon Brothers NAP NAP NAP NAP
Campus Realty Co.
000 Xxxxxx Xxxxxx Xxxxx Xxxxxxx Loan NAP NAP NAP NAP
Services, Inc.
113 Northlake Apartments Salomon Brothers NAP NAP NAP NAP
Realty Co.
114 The Aventine Citicorp Real NAP NAP NAP NAP
Apartments Estate, Inc.
000 Xxxxx Xxxxx Salomon Brothers NAP NAP NAP NAP
Apartments Realty Co.
116 Villas at Sunrise Salomon Brothers NAP NAP NAP NAP
Mountain Realty Co.
117 The Shops at Town Salomon Brothers NAP NAP NAP NAP
Center Realty Co.
120 Overlook at Central Salomon Brothers NAP NAP NAP NAP
Pointe Realty Co.
121 Reserve at Salomon Brothers NAP NAP NAP NAP
Jacksonville Commons Realty Co.
000 Xxx Xxxx Xxxxxxxxxx Xxxxxxx Brothers NAP NAP NAP NAP
Realty Co.
123 Plaza de Hacienda X.X. Xxxxxx & Company NAP NAP NAP NAP
000 Xxxxxxxxxx Xxxxxx X.X. Melody & Company NAP NAP NAP NAP
000 Xxxxxxxx Xxxx X.X. Xxxxxx & Company NAP NAP NAP NAP
127 Seekonk Crossing X.X. Melody & Company NAP NAP NAP NAP
128 Pines of Northwest Salomon Brothers NAP NAP NAP NAP
Crossing Apartments Realty Co.
130 Three Fountain Midland Loan NAP NAP NAP NAP
Apartments Services, Inc.
133 Phoenix Hazeltree Midland Loan NAP NAP NAP NAP
Apartments Services, Inc.
134 Xxxxxx Xxxxx Centre X.X. Melody & Company NAP NAP NAP NAP
135 Food 4 Less Salomon Brothers NAP NAP NAP NAP
Realty Co.
136 AAA Quality X.X. Xxxxxx & Company NAP NAP NAP NAP
Storage-Long Beach
137 Chatsworth Imperial Midland Loan NAP NAP NAP NAP
Mobile Home Park Services, Inc.
000 Xxx Xxxx Xxxxx Salomon Brothers 350,000 350,547 No Released upon DSCR of 1.25,
Shopping Center Realty Co. 90% occupancy and delivery of
Tenant Estoppels for PetsMart,
DIS Diagnostic and Quizno's
141 000 Xxxxxxx Xxxxxx X.X. Xxxxxx & Company NAP NAP NAP NAP
000 Xxxx Xxxxx Xxxxxx Xxxxxxx Loan NAP NAP NAP NAP
Mobile Home Park Services, Inc.
144 Parkview Towers Salomon Brothers NAP NAP NAP NAP
Apartments Realty Co.
146 Broad Creek Crossing Salomon Brothers NAP NAP NAP NAP
Shopping Center Realty Co.
147 Country Xxxxx Village Salomon Brothers NAP NAP NAP NAP
Realty Co.
000 Xxxxxxx Xxxxx Salomon Brothers NAP NAP NAP NAP
Shopping Center Realty Co.
149 East-West Medical X.X. Xxxxxx & Company NAP NAP NAP NAP
Center
000 Xxxxxxx Xxxxxx Xxxxxxx Loan NAP NAP NAP NAP
Apartments Services, Inc.
000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxx Loan NAP NAP NAP NAP
Services, Inc.
000 Xxxxxxx'x Xxxxx Salomon Brothers NAP NAP NAP NAP
Realty Co.
154 Three Fountains III Salomon Brothers NAP NAP NAP NAP
Apartments Realty Co.
155 Normandy Business X.X. Xxxxxx & Company NAP NAP NAP NAP
Center
000 Xxxxxxx Xxxxx Salomon Brothers NAP NAP NAP NAP
Realty Co.
157 Northbrook Atrium Salomon Brothers 450,000 450,752 No Released upon achievement by
Plaza Office Building Realty Co. Borrower of gross rental
income of $1,445,331 and
occupancy of 70%.
000 Xxxxxx Xxxxx Salomon Brothers NAP NAP NAP NAP
Apartments Realty Co.
163 00 Xxxxx Xxxxxx Citicorp Real NAP NAP NAP NAP
Estate, Inc.
000 Xxxxxxxxx Xxxxx Financial Federal NAP NAP NAP NAP
Shopping Center Savings Bank
A-5
EXHIBIT B-1
REPRESENTATIONS, WARRANTIES AND COVENANTS
WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing
Date:
(a) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine signature)
and delivery of any and all documents contemplated by this Agreement,
including, without limitation, endorsements of Mortgage Notes, and the
performance and compliance by the Seller with the terms of this Agreement will
not: (i) violate the Seller's organizational documents; or (ii) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any indenture,
agreement or other instrument to which the Seller is a party or by which it is
bound or which is applicable to it or any of its assets, which default or
breach, in the Seller's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Seller to perform
its obligations under this Agreement or the financial condition of the Seller.
(c) The Seller has full power and authority to enter into and fully
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(d) The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Mortgage Loans and the Loan REMIC
Interests (and, in the event that the related transaction is deemed to
constitute a loan secured by all or part of the Mortgage Loans and the Loan
REMIC Interests, to pledge the Mortgage Loans and the Loan REMIC Interests) in
accordance with, and under the conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms
hereof, subject to: (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms
hereof will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state or
local governmental or regulatory authority, which violation, in the Seller's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Seller to perform its obligations under
this Agreement or the financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the
best of the Seller's knowledge, threatened against the Seller which, if
determined adversely to the Seller, would prohibit the Seller from entering
into this Agreement or, in the Seller's good faith and reasonable judgment,
would
B-1-1
be likely to affect materially and adversely either the ability of the
Seller to perform its obligations hereunder or the financial condition of the
Seller.
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body
is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations and
orders that previously have been obtained and those filings and registrations
that previously have been completed, and except for those filings and
recordings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after the
Closing Date.
(i) The transfer of the Mortgage Loans and the Loan REMIC Interests
to the Purchaser as contemplated herein is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(j) The Mortgage Loans and the Loan REMIC Interests do not
constitute all or substantially all of the assets of the Seller.
(k) The Seller is not transferring the Mortgage Loans and the Loan
REMIC Interests to the Purchaser with any intent to hinder, delay or defraud
its present or future creditors.
(l) The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Mortgage Loans and the
Loan REMIC Interests to the Purchaser, as contemplated herein.
(m) After giving effect to its transfer of the Mortgage Loans and
the Loan REMIC Interests to the Purchaser, as provided herein, the value of
the Seller's assets, either taken at their present fair saleable value or at
fair valuation, will exceed the amount of the Seller's debts and obligations,
including contingent and unliquidated debts and obligations of the Seller, and
the Seller will not be left with unreasonably small assets or capital with
which to engage in and conduct its business.
(n) The Seller does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(o) In connection with its transfer of the Mortgage Loans and the
Loan REMIC Interests to the Purchaser as provided herein, the Seller is
receiving new value and consideration constituting at least reasonably
equivalent value and fair consideration for the Mortgage Loans and the Loan
REMIC Interests.
(p) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
B-1-2
EXHIBIT B-2
REPRESENTATIONS, WARRANTIES AND COVENANTS
WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants, as of the Closing
Date, that:
(a) The Purchaser is a duly formed corporation, validly existing and in
good standing under the laws of the State of Delaware.
(b) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(c) This Agreement, assuming due authorization, execution and delivery
by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(d) The execution and delivery of this Agreement by the Purchaser, and
the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or instrument to which it is a party or which is applicable
to it or any of its assets.
(e) The Purchaser is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(f) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the Purchaser
from entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, is likely to materially and adversely affect either the
ability of the Purchaser to perform its obligations under this Agreement or
the financial condition of the Seller.
(g) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body
is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations and
orders that previously have been obtained and those filings and registrations
that previously have been completed, and except for those filings of Mortgage
Loan documents and assignments thereof that are contemplated by the Pooling
and Servicing Agreement to be completed after the Closing Date.
B-2-1
Exhibit C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
For purposes of this Exhibit C, the phrase "the Seller's knowledge"
and other words and phrases of like import shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller (and,
as to any Mortgage Loan, with respect to the period subsequent to origination,
any servicer acting on behalf of the Seller with respect to that Mortgage
Loan) regarding the matters referred to, in each case without having conducted
any independent inquiry into such matters and without any obligation to have
done so (except as expressly set forth herein); provided that the Seller shall
be deemed to have knowledge of the information contained in those loan
documents relating to each of the Mortgage Loans that are required to be
delivered by the Seller to the Purchaser or the Purchaser's designee as part
of the related Mortgage File or otherwise pursuant to Section 2(c) of this
Agreement (collectively as to the subject Mortgage Loan, the "Mortgage Loan
Documents"). For purposes of this Exhibit C, the "Value" of a Mortgaged
Property shall mean the value of such Mortgaged Property as determined by the
appraisal (and subject to the assumptions set forth in the appraisal)
performed in connection with the origination of the related Mortgage Loan.
The Seller hereby represents and warrants with respect to the
respective Mortgage Loans that, as of the date hereinbelow specified or, if no
such date is specified, as of the Closing Date 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 (consistent
with the definition of Mortgage Loan Schedule in the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this
Agreement and as of the respective Due Dates for the Mortgage Loans in
September 2002.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights identified on Schedule C-2). The Seller
has validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain servicing
rights identified on Schedule C-2); provided that recording and/or filing of
various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of
the Mortgage Loans to the Purchaser or its designee does not require the
Seller to obtain any governmental or regulatory approval or consent that has
not been obtained. Each Mortgage Note is, or shall be as of the Closing Date,
properly endorsed to the Purchaser or its designee and each such endorsement
is genuine.
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3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for
such Mortgage Loan in September 2002 (without giving effect to any applicable
grace period), nor was any such payment 30 days or more delinquent in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan
in September 2002 (without giving effect to any applicable grace period), nor
was any such payment 60 days or more delinquent since origination (without
giving effect to any applicable grace period).
4. Lien; Valid Assignment. The Mortgage securing and delivered in
connection with each Mortgage Loan constitutes a legal, valid and, subject to
the limitations and exceptions set forth in Paragraph 13 below, enforceable
first priority lien upon the related Mortgaged Property, including, without
limitation, all buildings located thereon and all fixtures attached thereto,
prior to all other liens and encumbrances, and such Mortgaged Property is free
and clear of all liens and encumbrances that have priority over and/or are
pari passu with the lien of such Mortgage, in any event subject, however, to
the following (collectively, the "Permitted Encumbrances"): (a) the lien for
current real estate taxes, ground rents, water charges, sewer rents and
assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a
"marked-up" commitment binding upon the title insurer), none of which
materially interferes with the security intended to be provided by such
Mortgage, the current principal use or operation of the related Mortgaged
Property, the Value of the Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (c) exceptions and exclusions specifically referred to in such
lender's title insurance policy (or, if not yet issued, referred to in a pro
forma title policy or "marked-up" commitment binding upon the title insurer),
none of which materially interferes with the security intended to be provided
by such Mortgage, the current principal use of the related Mortgaged Property,
the Value of the Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service such Mortgage
Loan; (d) other matters to which like properties are commonly subject, none of
which materially interferes with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property, the
Value of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service such Mortgage
Loan; (e) the rights of tenants (as tenants only) under leases (including the
right to sublet) pertaining to the related Mortgaged Property, which rights do
not materially interfere with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property, the
Value of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related
Mortgage Loan; (f) if such Mortgage Loan constitutes a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in
the same Cross-Collateralized Group; and (g) if the related Mortgaged Property
consists of one or more units in a condominium, the related condominium
declaration, the terms of which condominium declaration do not materially
interfere with the security intended to be provided by such Mortgage, the
current principal use of the related Mortgaged Property, the Value of the
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service such Mortgage Loan. The related
assignment of such Mortgage executed and delivered in favor of the Trustee is
in recordable form (but for insertion of the name and address of the assignee
and any related recording information which is not yet
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available to the Seller) and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in Paragraph 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate
instrument or as part of the Mortgage) that relates to and was delivered in
connection with each Mortgage Loan and that establishes and creates in favor
of holder a valid, subsisting and, subject to the limitations and exceptions
set forth in Paragraph 13 below, enforceable first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein, except for Permitted
Encumbrances and except that a license may have been granted to the related
Borrower to exercise certain rights and perform certain obligations of the
lessor under the relevant lease or leases, including, without limitation, the
right to operate the related leased property so long as no event of default
has occurred under such Mortgage Loan; and each assignor thereunder has the
full right to assign the same. The related assignment of any Assignment of
Leases not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name of the assignee
and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid, binding and, subject to the
limitations and exceptions set forth in Paragraph 13 below, enforceable
assignment of such Assignment of Leases from the relevant assignor to the
Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection
of rents or for the related mortgagee to enter into possession to collect the
rents or provides for rents to be paid directly to the related mortgagee, if
there is an event of default. No person other than the related Borrower owns
any interest in any payments due under the related leases on which the
Borrower is the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage
Loan, the related Mortgaged Property is, to the Seller's knowledge, in good
repair and free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists sufficient to effect the
necessary repairs and maintenance). Except as otherwise identified on Schedule
C-7, as of the date of origination of the Mortgage Loan, there was no
proceeding pending (or, to the Seller's knowledge, threatened by the
appropriate governmental authority with the power of eminent domain) for the
condemnation of all or any material part of the related Mortgaged Property.
The Seller has not received notice and has no knowledge of any proceeding
pending for the
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condemnation of all or any material portion of the Mortgaged Property securing
any Mortgage Loan. As of the date of origination of each Mortgage Loan and, to
the Seller's knowledge, as of the Closing Date (a) all of the material
improvements on the related Mortgaged Property lay wholly within the
boundaries and, to the extent in effect at the time of construction, building
restriction lines of such property, and none of the material improvements on
the related Mortgaged Property encroached over any easements, except, in each
case, for encroachments that are insured against by the lender's title
insurance policy referred to in Paragraph 8 below or that do not materially
and adversely affect the Value or current use of such Mortgaged Property and
(b) no improvements on adjoining properties encroached upon such Mortgaged
Property so as to materially and adversely affect the Value of such Mortgaged
Property, except those encroachments that are insured against by the lender's
title insurance policy referred to in Paragraph 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is
yet to be issued, by a pro forma policy or a "marked up" commitment binding on
the title insurer) in the original principal amount of such Mortgage Loan
after all advances of principal, insuring that the related Mortgage is a valid
first priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances. Such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) is in full force and effect, all premiums thereon have
been paid and, to the Seller's knowledge, no material claims have been made
thereunder and no claims have been paid thereunder. No holder of the related
Mortgage has done, by act or omission, anything that would materially impair
the coverage under such Title Policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee, such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) will inure to
the benefit of the Trustee without the consent of or notice to the insurer.
Such Title Policy contains no exclusion for whether, or it affirmatively
insures (unless the related Mortgaged Property is located in a jurisdiction
where such affirmative insurance is not available) that, (a) the related
Mortgaged Property has access to a public road, and (b) the area shown on the
survey, if any, reviewed or prepared in connection with the origination of the
related Mortgage Loan is the same as the property legally described in the
related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan
has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan Documents and the rights to
which are transferred to the Trustee, pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect to the
related Mortgaged Property), and there is no obligation for future advances
with respect thereto.
10. Mortgage Provisions. The Mortgage Loan Documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in Paragraph 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, foreclosure or similar proceedings (as
applicable for the jurisdiction where the related Mortgaged Property is
located). None of the Mortgage Loan
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Documents contain any provision that expressly excuses the related Borrower
from obtaining and maintaining insurance coverage for acts of terrorism
(provided that such insurance coverage is generally available at commercially
reasonable rates and, in circumstances where such insurance is not expressly
required, that any request on the part of the lender that the related Borrower
maintain such insurance coverage is reasonable).
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable
law to serve as such, has either been properly designated and currently so
serves or may be substituted in accordance with such Mortgage and applicable
law, and (b) no fees or expenses are payable to such trustee by the Seller,
SBMS VII or any transferee thereof except in connection with a trustee's sale
after default by the related Borrower or in connection with any full or
partial release of the related Mortgaged Property or related security for such
Mortgage Loan.
12. Environmental Conditions. Except as otherwise identified on
Schedule C-12A, (a) a "phase I" environmental site assessment meeting ASTM
standards and covering all environmental hazards typically assessed for
similar properties including use, type and tenants of the related Mortgaged
Property, or an update of such an environmental site assessment (which update
may have been effected through a transaction screen or a database search), was
performed by an independent third-party environmental consultant (licensed to
the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan on behalf of the originator, the Seller or
another holder of such Mortgage Loan in connection with or subsequent to the
origination of such Mortgage Loan, (b) the report of each such assessment or
update, if any (an "Environmental Report"), is dated no earlier than (or,
alternatively, has been updated within) twelve (12) months prior to the
Closing Date, (c) a copy of each such Environmental Report has been delivered
to the Purchaser or its servicing agent, (d) in cases where the related
Mortgaged Property is identified on Schedule C-12B, additional soil and/or
ground water testing ("Additional Testing", and any resulting report, also an
"Environmental Report") was performed by an independent third-party
environmental consultant (licensed to the extent required by applicable state
law) with respect to such Mortgaged Property on behalf of the originator, the
Seller or another holder of such Mortgage Loan in connection with or
subsequent to the origination of such Mortgage Loan and (e) either: (i) no
such Environmental Report, if any, reveals that as of the date of the report
there is a material violation of applicable environmental laws with respect to
any known circumstances or conditions relating to the related Mortgaged
Property; or (ii) if any such Environmental Report does reveal any such
circumstances or conditions with respect to the related Mortgaged Property and
the same have not been subsequently remediated in all material respects, then
one or more of the following are true--(A) one or more parties not related to
the related Borrower and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the
responsible party or parties for such conditions or circumstance, and such
conditions or circumstances do not materially impair the Value of the related
Mortgaged Property, (B) the related Borrower was required to provide
additional security reasonably estimated to be adequate to cure the violations
and/or to obtain and, for the period contemplated by the related Mortgage Loan
Documents, maintain an operations and maintenance plan, (C) the related
Borrower, or other responsible party, provided a "no further action" letter or
other evidence that would be acceptable to a reasonably prudent commercial
mortgage lender, that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not
C-5
requiring any action, in respect of such condition or circumstance, (D) such
conditions or circumstances were investigated further and based upon such
additional investigation, an independent third-party environmental consultant
recommended no further investigation or remediation, (E) the expenditure of
funds reasonably estimated to be necessary to effect such remediation is not
greater than 2% of the outstanding principal balance of the related Mortgage
Loan, (F) there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (G) the related
Borrower or other responsible party is currently taking such actions, if any,
with respect to such circumstances or conditions as have been required by the
applicable governmental regulatory authority or (H) a responsible party
provided a guaranty or indemnity to the related Borrower to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's knowledge, there are no
significant or material circumstances or conditions with respect to such
Mortgaged Property not revealed in any such Environmental Report, where
obtained, that would require investigation or remediation by the related
Borrower under, or otherwise be a material violation of, any applicable
environmental law. The Mortgage Loan Documents for each Mortgage Loan require
the related Borrower to comply in all material respects with all applicable
federal, state and local environmental laws and regulations. To the Seller's
knowledge, none of the Mortgage Loans is covered by a secured creditor
environmental insurance policy, running to the benefit of the lender. Each
Borrower represents and warrants in the related Mortgage Loan Documents that,
except as set forth in certain environmental reports and to its actual
knowledge, it has not used, caused or permitted to exist and will not use,
cause or permit to exist on the related Mortgaged Property any hazardous
materials in any manner which violates federal, state or local laws,
ordinances, regulations, orders, directives or policies governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. With respect to each Mortgage
Loan, the related Borrower (or affiliate thereof) has agreed to indemnify,
defend and hold the Seller and its successors and assigns harmless from and
against any and all losses, liabilities, damages, injuries, penalties, fines,
expenses and claims of any kind whatsoever (including attorneys' fees and
costs) paid, incurred or suffered by or asserted against, any such party
resulting from a breach of environmental representations, warranties or
covenants given by such Borrower in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement executed by or on behalf of the related Borrower with respect to
each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, conveyance, receivership. moratorium or
other similar laws relating to or affecting the enforcement of creditors'
rights generally and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law), and
except that certain provisions in such loan documents may be further limited
or rendered unenforceable by applicable state or federal law, but (subject to
the limitations set forth in the foregoing clauses (i) and (ii)) such
limitations or unenforceability will not render such loan documents invalid as
a whole or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided thereby. There is no valid
defense, counterclaim or right of offset, rescission,
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abatement or diminution, available to the related Borrower with respect to
such Mortgage Note, Mortgage or other agreements that would deny the mortgagee
the principal benefits intended to be provided thereby, except in each case,
with respect to the enforceability of any provisions requiring the payment of
default interest, late fees, additional interest, prepayment premiums or yield
maintenance charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and
obligated to maintain the insurance described in this paragraph, are allowed
to self-insure the related Mortgaged Properties, and except as disclosed on
Schedule C-14A, all improvements upon each Mortgaged Property securing a
Mortgage Loan are insured under a fire and extended perils insurance (or the
equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each
Mortgaged Property is also covered by comprehensive general liability
insurance against claims for personal and bodily injury, death or property
damage occurring on, in or about the related Mortgaged Property in amounts
customarily required by prudent commercial lenders for properties of similar
types. Each Mortgaged Property securing a Mortgage Loan is the subject of a
business interruption or rental loss insurance policy providing coverage in an
amount equal to all effective gross income (or, alternatively, in an amount
equal to net operating income plus continuing expenses) for at least twelve
(12) months (or a specified dollar amount which is reasonably estimated to
cover no less than twelve (12) months of rental income). If any portion of the
improvements on a Mortgaged Property securing any Mortgage Loan was, at the
time of the origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a special flood
hazard area (Zone A or Zone V) (an "SFH Area"), and flood insurance was
available, a flood insurance policy meeting the requirements of the then
current guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the minimum amount required, under the terms of
coverage, to compensate for any damage or loss on a replacement basis, (2) the
outstanding principal balance of such Mortgage Loan, and (3) the maximum
amount of insurance available under the applicable National Flood Insurance
Administration Program. Each Mortgaged Property located in California or
seismic zones 3 and 4 is covered by seismic insurance to the extent such
Mortgaged Property has a probable maximum loss of greater than twenty percent
(20%) of the replacement value of the related improvements, calculated using
methodology acceptable to a reasonably prudent commercial mortgage lender with
respect to similar properties in the same area or earthquake zone. All such
hazard and flood insurance policies contain a standard mortgagee clause for
the benefit of the holder of the related Mortgage, its successors and assigns,
as mortgagee, and are not terminable (nor may the amount of coverage provided
thereunder be reduced) without ten (10) days' prior written notice to the
mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Additionally, except as set
forth on Schedule C-14B, for any Mortgage Loan having a Cut-off Date Principal
Balance equal to or greater than $5,000,000, the insurer for all of the
required coverages set forth herein satisfies the requirements of the related
Mortgage Loan Documents and has a claims paying ability or financial strength
rating from S&P or Xxxxx'x of not less than A-minus (or the equivalent), or
from A.M. Best Company of not less
C-7
than "A:V" (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan Documents require that the related Borrower or a tenant
of such Borrower maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent institutional commercial
mortgage lender or that would not otherwise materially and adversely affect
the security intended to be provided by the related Mortgage, the Mortgage
Loan Documents for each Mortgage Loan provide that proceeds paid under any
such casualty insurance policy will (or, at the lender's option, will) be
applied either to the repair or restoration of all or part of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage Loan Documents may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due under
the Mortgage Loan; and provided, further, that, if the related Borrower holds
a leasehold interest in the related Mortgaged Property, the application of
such proceeds will be subject to the terms of the related Ground Lease (as
defined in Paragraph 18 below).
Except as set forth on Schedule C-14B, each Mortgaged Property is
insured by an "all-risk" casualty insurance policy that does not contain an
express exclusion for (or, alternatively, is covered by a separate policy that
insures against property damage resulting from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes,
water charges, sewer rents or assessments or other outstanding charges
affecting any Mortgaged Property securing a Mortgage Loan that are a lien of
priority equal to or higher than the lien of the related Mortgage and that
have not been paid (or if any do exist by reason of being in dispute, they are
covered by an escrow of funds sufficient to pay such items and other charges).
For purposes of this representation and warranty, real property taxes and
assessments shall not be considered delinquent until the date on which
interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding,
and no Mortgaged Property is the subject of any such proceeding in which any
affiliate of the related Borrower is a debtor.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other
due diligence considered reasonable by prudent commercial mortgage lenders in
the lending area where the subject Mortgaged Property is located (including,
without limitation, when commercially reasonable, a representation of the
related Borrower at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property).
In the case of each legal non-conforming use or structure, the related
Mortgaged Property may be restored or repaired to the full extent of the use
or structure at the time of such casualty or law and ordinance insurance
coverage has been obtained in an amount that would be required by prudent
commercial mortgage lenders (or, if the related Mortgaged Property may not be
restored or repaired to the full extent of the use or
C-8
structure at the time of such casualty and law and ordinance insurance
coverage has not been obtained in an amount that would be required by prudent
commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) such Ground Lease or a memorandum thereof has been or will
be duly recorded as of the Closing Date; such Ground Lease permits
the interest of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material change in the terms
of such Ground Lease since its recordation, with the exception of
material changes reflected in written instruments which are a part
of the related Mortgage File; and if required by such Ground Lease,
the lessor thereunder has received notice of the lien of the related
Mortgage in accordance with the provisions of such Ground Lease;
(b) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not
subject to any liens or encumbrances superior to, or of equal
priority with, the related Mortgage, other than the related Fee
Interest and Permitted Encumbrances;
(c) the Borrower's interest in such Ground Lease is assignable
to, is thereafter further assignable by, the Purchaser upon notice
to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such
Ground Lease has not been terminated and all amounts owed thereunder
have been paid;
(d) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such
Ground Lease;
(e) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such
Mortgage Loan; and such Ground Lease further provides that no notice
of termination given under such Ground Lease is effective against
the mortgagee under such Mortgage Loan unless a copy has been
delivered to such mortgagee in the manner described in such Ground
Lease;
(f) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time
to gain possession of the interest of the lessee under such Ground
Lease through legal proceedings) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any
such default, before the lessor thereunder may terminate such Ground
Lease;
(g) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity
Date of such Mortgage Loan,
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or (ii) has an original term which does not end prior to the 5th
anniversary of the Stated Maturity Date of such Mortgage Loan and
has extension options that are exercisable by the lender upon its
taking possession of the Borrower's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not
less than twenty (20) years beyond the Stated Maturity Date of such
Mortgage Loan;
(h) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in
a bankruptcy proceeding involving the related Borrower unless the
mortgagee under such Mortgage Loan fails to cure a default of the
lessee under such Ground Lease following notice thereof from the
lessor;
(i) under the terms of such Ground Lease and the related
Mortgage, taken together, any related casualty insurance proceeds
(other than de minimis amounts for minor casualties) with respect to
the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(j) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender in the lending area where the
related Mortgaged Property is located at the time of the origination
of such Mortgage Loan; and
(k) such Ground Lease provides that it may not be amended or
modified without the prior written consent of the mortgagee under
such Mortgage Loan, and any such action without such consent is not
binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is (and, if such Mortgage
Loan is an asset of a Loan REMIC, the related Loan REMIC Regular Interest also
is) a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code and Treasury regulation section 1.860G-2(a) (but without regard to the
rule in Treasury regulation section 1.860G-2(f)(2)).
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property (other than amounts paid by the tenant as specifically provided under
related lease or by the property manager), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds,
C-10
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 such
Mortgage Loan is paid in full, and (b) a portion of the cash flow generated by
such Mortgaged Property will be applied each month to pay down the principal
balance thereof in addition to the principal portion of the related Monthly
Payment. Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the Borrower under any Mortgage Loan. None
of the Mortgage Loans was originated for the primary purpose of financing
incomplete improvements on the related Mortgaged Property.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or
before any court or governmental authority against or affecting the Borrower
under any Mortgage Loan or the related Mortgaged Property that, if determined
adversely to such Borrower or Mortgaged Property, would materially and
adversely affect the value of the Mortgaged Property as security for such
Mortgage Loan or the current ability of the Borrower to pay principal,
interest or any other amounts due under such Mortgage Loan. The Seller has not
intentionally violated any provision of the United States Bank Secrecy Act,
the United States Money Laundering Control Act of 1986 or the United States
International Money Laundering Abatement and Anti-Terrorist Financing Act of
2001, or any other law of any jurisdiction, applicable to it or the Mortgage
Loans insofar as such laws require Seller to make investigations, reports or
take other actions with respect to the related Borrowers.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or
of equal priority with the lien of the related Mortgage without the prior
written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein (except as identified on
Schedule C-23). To the Seller's knowledge, except for cases involving other
Mortgage Loans, none of the Mortgaged Properties securing the Mortgage Loans
is encumbered by any mortgage liens junior to or of equal priority with the
liens of the related Mortgage (except as identified on Schedule C-23). The
related Mortgage Loan Documents require the Borrower under each Mortgage Loan
to pay all reasonable costs and expenses related to any required consent to an
encumbrance, including any applicable Rating Agency fees, or would permit the
related mortgagee to withhold such consent if such costs and expenses are not
paid by a party other than such mortgagee.
24. No Mechanics' Liens. To the Seller's knowledge: (i) each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) is free and clear
C-11
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. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. As of the date of origination of each
Mortgage Loan, which knowledge is based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Borrower at the
time of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located, customarily performs in the origination of
comparable mortgage loans, the related Borrower was in possession of all
material licenses, permits and franchises required by applicable law for the
ownership, occupancy and operation of the related Mortgaged Property as it was
then operated or such material licenses, permits and franchises have otherwise
been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged
Properties with respect to such Mortgage Loans is at least equal to the total
amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. Except as identified on
Schedule C-28, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property from the lien of
the related Mortgage except upon (i) payment in full of all amounts due under
the related Mortgage Loan or (ii) delivery of "government securities" within
the meaning of Treasury regulation section 1.860G-2(a)(8)(i) in connection
with a defeasance of the related Mortgage Loan; provided that the Mortgage
Loans that are Cross-Collateralized Mortgage Loans, and the other individual
Mortgage Loans secured by multiple parcels, may require the respective
mortgagee(s) to grant releases of portions of the related Mortgaged Property
or the release of one or more related Mortgaged Properties upon (i) the
satisfaction of certain legal and underwriting requirements which would be
acceptable to a reasonably prudent commercial or multifamily, as applicable,
mortgage lender or (ii) the payment of a release price equal to at least 125%
of the loan amount allocated to such Mortgaged Property in connection
therewith; and provided, further, that certain Cross-Collateralized Groups of
Mortgage Loans or individual Mortgage Loans secured by multiple parcels may
permit the related Borrower to obtain the release of one or more of the
related Mortgaged Properties by substituting comparable real estate property,
subject to, among other conditions precedent, receipt of confirmation from
each Rating Agency that such release and substitution will not result in a
qualification, downgrade or withdrawal of any of its then-current ratings of
the Certificates; and provided, further, that any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which the
Seller did not give any material value in underwriting the Mortgage Loan. No
release or partial release of any Mortgaged Property, or any portion thereof,
expressly permitted by the related Mortgage Loan Documents, will
C-12
constitute a significant modification of the related Mortgage Loan
under Treasury regulation section 1.860G-2(b)(2).
29. Defeasance. Except as otherwise specified on Schedule C-29, each
Mortgage Loan that contains a provision for any defeasance of mortgage
collateral permits defeasance (i) no earlier than two years following the
Closing Date (or, if such Mortgage Loan is an asset of a Loan REMIC, the
"start-up date" with in the meaning of Section 860G(a)(9) of the Code for such
Loan REMIC) and (ii) only with substitute collateral constituting "government
securities" within the meaning of Treasury regulation section
1.860G-2(a)(8)(i). With respect to any Early Defeasance Loan, the Mortgage
Loan Documents provide that the related Borrower must provide to the lender a
minimum of 30 days prior notice of such defeasance. To the Seller's knowledge,
defeasance under each such Mortgage Loan is only for the purpose of
facilitating the disposition of a Mortgaged Property and not as part of an
arrangement to collateralize a REMIC offering with obligations that are not
real estate mortgages.
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan Documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by
the related mortgagee, including Rating Agency fees.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. Except for those Mortgage Loans identified on
Schedule C-32, the Seller or an affiliate thereof inspected, or caused the
inspection of, the related Mortgaged Property within twelve (12) months
preceding the Closing Date.
33. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the
Mortgage Note, Mortgage, Assignment of Leases or other related loan documents
for any Mortgage Loan (other than payments due but not yet 30 days or more
delinquent); provided, however, that this representation and warranty does not
cover any default, breach, violation or event of acceleration that pertains to
or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Exhibit C. For purposes
of this Paragraph 33, the Seller shall be deemed to have such knowledge as a
servicer would be reasonably expected to have as a result of performing normal
and customary servicing duties with respect to commercial and multifamily
mortgage loans being held for securitization.
34. Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of or permits lender
to accelerate the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity
interest in the related Borrower, is transferred or sold, other than by reason
of family and estate planning transfers (or by devise, descent or operation of
law upon the death of a member, partner or shareholder of the related
Borrower), transfers of less than a controlling interest in the Borrower,
transfers of shares in public companies, issuance of non-controlling new
equity
C-13
interests, transfers to an affiliate meeting the requirements of the
Mortgage Loan, transfers among existing members, partners or shareholders in
the Borrower, transfers among affiliated Borrowers with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans,
transfers among co-Borrowers or transfers of a similar nature to the foregoing
meeting the requirements of the Mortgage Loan.
35. Single Purpose Entity. Except in cases where the related
Mortgaged Property is a residential cooperative property, the Borrower on each
Mortgage Loan with a Cut-off Date Principal Balance of $5,000,000 or more,
was, as of the origination of the Mortgage Loan, a Single Purpose Entity. For
this purpose, a "Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents provide substantially to the effect
that it was formed or organized solely for the purpose of owning and operating
one or more of the Mortgaged Properties securing the Mortgage Loans and
prohibit it from engaging in any business unrelated to such Mortgaged Property
or Properties, and whose organizational documents further provide, or which
entity represented in the related Mortgage Loan Documents, substantially to
the effect that it does not have any material assets other than those related
to its interest in and operation of such Mortgaged Property or Properties, or
any indebtedness other than as permitted by the related Mortgage(s) or the
other related Mortgage Loan Documents, that it has its own books and records
and accounts separate and apart from those of any other person, that it
conducts its business in its own name, that it holds itself out as a legal
entity (separate and apart from any other person), that it will not guarantee
or assume the debts of any other person, that it will not commingle assets
with affiliates, and that it will not transact business with affiliates except
on an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Except as detailed on Schedule C-37, each Mortgaged
Property constitutes one or more complete separate tax lots or is subject to
an endorsement under the related Title Policy insuring same, or in certain
instances an application has been made to the applicable governing authority
for creation of separate tax lots which shall be effective for the next tax
year.
38. ARD Loans. As of the Closing Date, each ARD Loan requires
scheduled monthly payments of principal. If any ARD Loan is not paid in full
by its Anticipated Repayment Date, and assuming it is not otherwise in
default, (i) the rate at which such ARD Loan accrues interest will increase by
at least two (2) percentage points and (ii) the related Borrower is required
to enter into a lockbox arrangement on the ARD Loan whereby all revenue from
the related Mortgaged Property shall be deposited directly into a designated
account controlled by the applicable Master Servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording, in all places
necessary to perfect (to the extent that the filing of such a UCC financing
statement can perfect such a security interest), a valid security interest in
the personal property of the related Borrower granted under the related
Mortgage. If any Mortgaged Property securing a Mortgage Loan is operated as a
hospitality property, then (a) the security agreements, financing statements
or other instruments, if any,
C-14
related to the Mortgage Loan secured by such Mortgaged Property
establish and create a valid security interest in all items of personal
property owned by the related Borrower which are material to the conduct in
the ordinary course of the Borrower's business on the related Mortgaged
Property, subject only to purchase money security interests, personal property
leases and security interests to secure revolving lines of credit and similar
financing; and (b) one or more Uniform Commercial Code financing statements
covering such personal property have been filed or recorded (or have been sent
for filing or recording) wherever necessary to perfect under applicable law
such security interests (to the extent a security interest in such personal
property can be perfected by the filing of a Uniform Commercial Code financing
statement under applicable law). The related assignment of such security
interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered
in favor of the Trustee constitutes a legal, valid and binding assignment
thereof from the relevant assignor to the Trustee.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury regulation section 1.860G-1(b)(2).
41. Commencement of Amortization. Each Mortgage Loan begins to
amortize prior to its stated maturity date or, in the case of an ARD Loan,
prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as otherwise contemplated in this
Agreement or the Pooling and Servicing Agreement or as otherwise set forth on
Schedule C-2, no Person has been granted or conveyed the right to service any
Mortgage Loan or receive any consideration in connection therewith.
43. Recourse. The related Mortgage Loan Documents contain provisions
providing for recourse against the related Borrower, a principal of such
Borrower, or an entity controlled by a principal of such Borrower for damages,
liabilities, expenses or claims sustained in connection with the Borrower's
(i) fraud, (ii) material (or, alternatively, intentional) misrepresentation,
(iii) material, physical waste (or, alternatively, the failure to repair or
restore the related Mortgaged Property in accordance with any related Mortgage
Loan document, to the extent not covered by insurance proceeds paid on account
of damage which is the subject of any such repair or restoration which are
made available for such purpose to the Borrower or the holder of the Mortgage
Loan) or (iv) misappropriation of any tenant security deposits (in some cases,
only after foreclosure or an action in respect thereof), rent (in some cases,
only after an event of default), insurance proceeds or condemnation proceeds.
The related Mortgage Loan Documents contain provisions pursuant to which the
related Borrower, a principal of such Borrower or an entity controlled by a
principal of such Borrower, has agreed to indemnify the mortgagee for damages
resulting from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that has not been assigned to the Purchaser.
C-15
45. Fee Simple or Leasehold Interests. Except as described on
Schedule C-45, the interest of the related Borrower in the Mortgaged Property
securing each Mortgage Loan is a fee simple and/or leasehold estate interest
in real property and the improvements thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan Documents, have been received and, to the extent of any remaining
balances of such escrow deposits, are in the possession or under the control
of Seller or its agents (which shall include the Master Servicer). All such
escrow deposits are conveyed hereunder to the Purchaser. Any and all material
requirements under each Mortgage Loan as to completion of any improvements and
as to disbursement of any funds escrowed for such purpose, which requirements
were to have been complied with on or before the Closing Date, have been
complied with in all material respects or, if and to the extent not so
complied with, the escrowed funds (or an allocable portion thereof) have not
been released except in accordance with the terms of the related loan
documents.
47. Operating Statements. In the case of each Mortgage Loan, except
as otherwise set forth on Schedule C-47, the related Mortgage requires the
related Borrower, in some cases at the request of the lender, to provide the
holder of such Mortgage Loan with at least quarterly and annual operating
statements and rent rolls (if there is more than one tenant) for the related
Mortgaged Property and annual financial statements (or alternatively, a
balance sheet and profit and loss statement) of the related Borrower, and with
such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage or Mortgage Note provides a grace period for delinquent Monthly
Payments no longer than fifteen (15) days from the applicable Due Date.
49. Originator's Authorization To Do Business. To the extent
required under applicable law to assure the enforceability of a Mortgage Loan,
as of such Mortgage Loan's funding date and at all times when such Mortgage
Loan, the holder of such Mortgage Loan was authorized to do business in the
jurisdiction in which the related Mortgaged Property is located.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection
with the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect
to whole loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or
the Borrower or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan; the appraisal, or a letter from the appraiser, states that such
appraisal satisfies the requirements of
C-16
the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as
in effect on the date the Mortgage Loan was originated.
53. Loans to One Borrower. As of the Closing Date, not more than
$153,096,151 of the Mortgage Loans have the same Borrower or, to the Seller's
knowledge, have Mortgagors that are affiliates of each other.
C-17
SCHEDULE C
SCHEDULE C-2 OWNERSHIP OF MORTGAGE LOANS
Control Loan /Property Loan Originator Cut-off Date Primary Servicer Primary
Number Name Number Principal Servicing
Balance Fee
Wilton Executive GEMSA Loan Services,
111 Campus 7003003 SBRC 24,430,112.23 L.P. 0.060%
Northlake GMAC Commercial
113 Apartments 7004458 SBRC 19,803,899.89 Mortgage Corp. 0.050%
Cedar Crest GMAC Commercial
115 Apartments 7004284 SBRC 16,944,314.21 Mortgage Corp. 0.075%
Villas at Sunrise GEMSA Loan Services,
116 Mountain 7004771 SBRC 16,465,347.37 L.P. 0.060%
The Shops at GMAC Commercial
117 Town Center 7003378 SBRC 16,000,000.00 Mortgage Corp. 0.080%
Oak Mill GMAC Commercial
122 Apartments 7004456 SBRC 13,600,749.44 Mortgage Corp. 0.050%
Plaza de GEMSA Loan
123 Hacienda 7004294 SBRC 12,959,762.99 Services, L.P. 0.080%
Shenandoah GEMSA Loan
124 Square 7003587 SBRC 12,934,050.48 Services, L.P. 0.070%
GEMSA Loan
000 Xxxxxxxx Xxxx 7003287 SBRC 12,384,772.73 Services, L.P. 0.070%
GEMSA Loan
127 Seekonk Crossing 7003996 SBRC 12,331,089.11 Services,L.P. 0.050%
Xxxxxx Xxxxx GEMSA Loan
134 Centre 7001097 SBRC 8,382,038.68 Services, L.P. 0.090%
GMAC Commercial
135 Food 4 Less 7002471 SBRC 8,054,456.94 Mortgage Corp. 0.060%
AAA Quality
Storage-Long GEMSA Loan
136 Beach 7003632 SBRC 7,259,431.52 Services, L.P. 0.080%
202 Tillary GEMSA Loan
141 Street 7004263 SBRC 5,970,563.95 Services, L.P. 0.080%
Broad Creek
Crossing GMAC Commercial
146 Shopping Center 7003456 SBRC 5,067,561.69 Mortgage Corp. 0.100%
Lincoln Plaza GMAC Commercial
148 Shopping Center 7003332 SBRC 4,840,871.29 Mortgage Corp. 0.100%
East-West GEMSA Loan
149 Medical Center 7001423 SBRC 4,763,377.89 Services, L.P. 0.090%
Three Fountains GEMSA Loan
154 III Apartments 6603083 SBRC 4,557,765.70 Services, L.P. 0.100%
Normandy GEMSA Loan
155 Business Center 7001555 SBRC 4,448,758.82 Services, L.P. 0.090%
Oxford Crest GMAC Commercial
161 Apartments 7004350 SBRC 3,590,468.72 Mortgage Corp. 0.100%
Northwest Plaza Financial Federal
164 Shopping Center 6603456 SBRC 2,937,848.59 Savings Bank 0.080%
C-18
SCHEDULE C-7 CONDITION OF PROPERTY; CONDEMNATION
Loan
Number Loan Name Description of Exception
7001724 Exchange Place In conjunction with an upgrade of the "blue line"
Massachusetts Bay Transportation Authority ("MBTA")
subway system, the MBTA is in discussions with the
borrower regarding the construction of a new
handicapped accessible subway entrance at State and
Congress streets which will require the transfer of,
and creation of permanent and/or temporary easements
over, portions of retail and garage areas of the
mortgaged property understood to be relatively
immaterial to the value of the remainder of the
mortgaged property. The borrower is expected to be
permitted to utilize any net proceeds of such transfers
and grants of easements towards restoration of the
remaining mortgaged property, and to retain any
proceeds remaining after such restoration without an
associated reduction in the balance of the loan. It is
possible, however, that discussions regarding the
proposed transfer and creation of easements will not
result in a consensual agreement; if a final agreement
is not entered into, the MBTA could exercise its
eminent domain powers to take whatever temporary or
permanent property rights are necessary to effectuate
the MBTA's determination of the appropriate location of
the new subway entrance.
SCHEDULE C-12A ENVIRONMENTAL CONDITIONS.
The following Mortgaged Properties have environmental reports that are not
dated within 12 months of the Closing Date:
Loan
Number Loan/Property Name Environmental Report Date
7003003 Wilton Executive Campus 03/22/01
7002858 Berlin Circle Plaza 06/29/01
7003330 The Aventine Apartments 07/13/98
7003287 Xxxxxxxx Xxxx 00/00/00
0000000 Xxxxxx Xxxxx Xxxxxx 11/10/00
7002471 Food 4 Less 04/25/01
6602999 Chatsworth Imperial Mobile Home Park 09/18/98
C-19
6603000 Xxxx Point Marina Mobile Home Park 09/18/98
7003456 Broad Creek Crossing Shopping Center 06/15/01
7001600 Country Xxxxx Village 01/09/01
7003332 Lincoln Plaza Shopping Center 09/06/01
7001423 East-West Medical Center 03/21/01
6603083 Three Fountains III Apartments 08/06/01
7001555 Normandy Business Center 01/18/01
7003050 Addison Plaza 08/09/01
6601322 00 Xxxxx Xxxxxx 06/19/98
6603456 Northwest Plaza Shopping Center 06/17/99
SCHEDULE C-12B ENVIRONMENTAL CONDITIONS.
None.
SCHEDULE C-14A INSURANCE.
Loan
Number Loan/Property Name Description of Exception
7004294 Plaza de Hacienda The insurable value of the mortgaged
property is $12,798,680 and the
insurance coverage maintained by the
borrower is only $3,560,000.
However, in addition to this
coverage, several tenants have, and
are required to have, the following
amounts of insurance coverage: Xxxx
in the Box, Inc. (Xxxx in the Box)
$1,000,000 aggregate; The Kroger Co.
(Food 4 Less) $20,000,000 aggregate;
Lord and Xxxx Ventures, LLC (Taco
Xxxx) $2,000,000 aggregate; MIBZ,
Inc. (Wienerschnitzel) $2,000,000
aggregate plus actual loss with
respect to business income.
SCHEDULE C-14B INSURANCE.
Loan Number Loan/Property Name Description of Exception
C-20
7003332 Lincoln Plaza
Shopping Center Unable to determine whether terrorism
insurance is excluded from the "all
risk" casualty insurance policy.
0000000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxx Terrorism is excluded from the "all
risk" casualty insurance policy.
7002858 Berlin Circle Plaza Terrorism is excluded from the "all
risk" casualty insurance policy.
7003586 Xxxxxxx'x Ridge Terrorism is excluded from the "all
risk" casualty insurance policy.
7003983 Overlook at Central
Pointe Terrorism is excluded from the "all
risk" casualty insurance policy.
7003667 Villatree Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
7003565 Parkview Towers
Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
7004056 Phoenix Square
Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
7003564 Three Fountain
Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
7003346 Country Club Villas
Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
7003343 The Commons
Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
7003343 Greentree Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
7003339 Del Oro Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
7003350 Royal Crest
Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
C-21
7003623 Pebble Walk
Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
7003996 Seekonk Crossing Terrorism is excluded from the "all
risk" casualty insurance policy.
7004263 000 Xxxxxxx Xxxxxx Terrorism is excluded from the "all
risk" casualty insurance policy.
7005181 Pines of Northwest
Crossing Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
6603083 Three Fountains
III Apartments Terrorism is excluded from the "all
risk" casualty insurance policy.
6601322 00 Xxxxx Xxxxxx Unable to determine whether terrorism
insurance is excluded from the "all
risk" casualty insurance policy.
7001724 Exchange Place The insurers are required to have a
claims paying ability rating of "A"
or better by one or more of Xxxxx'x,
S&P, Fitch or Duff & Xxxxxx.
SCHEDULE C-23 OTHER MORTGAGE LIENS.
Loan
Number Loan Name Description of Exception
7003003 Wilton The borrower currently has secured debt outstanding to
Executive Sparrow Mortgage Company LLC, an affiliate of the
Campus borrower through common ownership, in the amount of
$10,240,069.02, which debt was subordinated to the lien
of the mortgage by a subordination and standstill
agreement executed by the holder of the subordinated
debt. The maturity date of the subordinated debt is one
year beyond the maturity date of the mortgage loan. The
borrower also currently has unsecured debt outstanding,
in the amount of $738,896.00, in addition to trade
receivables, equipment financing and other debts
incurred in the ordinary course of business. The
holders of the unsecured debt, Xxxxxx X. Xxxxxx and
Xxxxxxx X. Xxxx, principals of the borrower, executed a
subordination and standstill agreement for the benefit
of the holder of the mortgage loan.
C-22
SCHEDULE C-28 RELEASES OF MORTGAGED PROPERTIES.
Loan
Number Loan Name Description of Exception
7003587 Shenandoah The mortgage permits the release of approximately
Square one-half acre from the lien of the mortgage provided,
among others, the following conditions precedent are
satisfied: (a) by completion of the contemplated
release, the mortgaged property and the released parcel
shall be separate and distinct legally subdivided
parcels; (b) usual and appropriate reciprocal easement
and common use agreements have been entered into by all
necessary parties; (c) the borrower deposited a
$300,000 partial release deposit with the lender as
additional security for repayment of the loan; (d) a
survey of the remaining property; (e) satisfactory
evidence that the remaining property complies with
applicable zoning requirements; and (f) receipt by the
lender of (1) a "REMIC" legal opinion; and (2) written
confirmation from any applicable rating agencies that
the proposed release will not result in a downgrading,
withdrawal or qualification of the respective ratings.
7004294 Plaza
de Hacienda The mortgage instrument permits the release of an
unimproved parcel of approximately 2.23 acres from the
lien of the mortgage, provided, among others, the
following conditions precedent are satisfied: (1) no
event of default shall have occurred and be continuing;
(2) the release parcel shall be a separate and distinct
legally subdivided parcel; (3) the release parcel
shall, concurrently with the partial release, be
conveyed to a person or entity other than the borrower;
and (4) receipt by the lender of a title endorsement
insuring that the deed of trust remains a first lien on
the remaining property, not impacted by the release.
SCHEDULE C-29 DEFEASANCE
Loan
Number Loan Name Description of Exception
6601322 00 Xxxxx
Xxxxxx Defeasance is permitted beginning on October 1, 2001.
This loan has been included in an individual loan
REMIC. In the event the borrower notifies the master
servicer that it intends to defease the mortgage loan
on or before the second anniversary of the startup date
of the related
C-23
individual loan REMIC, the seller will
be required to repurchase that mortgage loan.
0000000 Xxxxxxxxx
Xxxxx X.X. Defeasance is permitted beginning on October 1, 2003.
This loan has been included in an individual loan
REMIC. In the event the borrower notifies the master
servicer that it intends to defease the mortgage loan
on or before the second anniversary of the startup date
of the related individual loan REMIC, the seller will
be required to repurchase that mortgage loan.
6602999 Chatsworth
Imperial Defeasance is permitted beginning on May 10, 2003.
Mobile Home This loan has been included in an individual loan
Park REMIC. In the event the borrower notifies the master
servicer that it intends to defease the mortgage loan
on or before the second anniversary of the startup date
of the related individual loan REMIC, the seller will
be required to repurchase that mortgage loan.
6603000 Xxxx Point
Marina Mobile Defeasance is permitted beginning on March 23, 2003.
Home Park This loan has been included in an individual loan
REMIC. In the event the borrower notifies the master
servicer that it intends to defease the mortgage loan
on or before the second anniversary of the startup date
of the related individual loan REMIC, the seller will
be required to repurchase that mortgage loan.
SCHEDULE C-32 INSPECTION.
Loan
Number Loan Name Description of Exception
7002858 Berlin Circle
Plaza The most recent inspection was on May 31, 2001.
The next servicer inspection is scheduled for
November 1, 2002.
7003330 The Aventine
Apartments The most recent inspection was in August, 2001.
7002471 Food 4 Less The most recent inspection was on April 25, 2001.
The next servicer inspection is scheduled for
December 1, 2002.
7003456 Broad Creek
Shopping The most recent inspection was on September 20, 2001.
Center The next servicer inspection is scheduled for
November 1, 2002.
7003332 Lincoln Plaza
Shopping The most recent inspection was on August 29, 2001.
Center The next servicer inspection is scheduled for
February 1, 2003.
C-24
7003050 Addison Plaza The most recent inspection was on June 14, 2001.
The next servicer inspection is scheduled for
September 1, 2002.
0000000 Xxxxxxxxx Xxxxx
Shopping The most recent inspection was on
Center September 24, 2001. The next servicer inspection is
scheduled for November 1, 2002.
SCHEDULE C-37 SEPARATE TAX PARCELS.
Loan
Number Loan Name Description of Exception
7003456 Broad Creek
Shopping Center The tax parcel is comprised of three properties. Two
are owned by the ground lessor (the borrower is the
ground lessee of one of the properties) and the
third is owned by a third party. The ground lease
requires the ground lessor to pay taxes on the
entire parcel upon receipt of the borrower's pro-rata
share. The mortgage does not require the lender to
release funds held in the tax escrow until the lender
has been presented with evidence that
taxes on the entire tax parcel have been paid. A
separate tax parcel endorsement and a subdivision
endorsement were obtained. In addition, an
endorsement was obtained insuring the lender against
loss resulting from the enforcement of a
mechanic's lien against the properties that are part
of the same tax parcel,and an endorsement was
obtained insuring against loss resulting from
other liens arising on the adjacent properties.
SCHEDULE C-45 FEE SIMPLE OR LEASEHOLD INTERESTS.
Loan
Number Loan Name Description of Exception
7001724 Exchange Place The borrower has a leasehold interest in the
mortgaged real property.
7003456 Broad Creek
Crossing The borrower has a leasehold interest in the
Shopping Center mortgaged real property.
SCHEDULE C-47 OPERATING STATEMENTS.
Loan
Number Loan Name Description of Exception
7001097 Xxxxxx Town
Center The mortgage provides that at the end of each three
month quarter of each fiscal year of Borrower, a
balance sheet, a statement of income and expenses of
the Property and a statement of changes in financial
position is required; and
C-25
upon lender's request, a rent roll.
6603000 Xxxx Point The mortgage provides that at the end of each three
Marina Mobile month quarter of each fiscal year of Borrower, a
Home Park balance sheet, a statement of income and expenses of
the Property and a statement of changes in financial
position is required; and upon lender's request,
a rent roll.
6602999 Chatsworth
Imperial The mortgage provides that at the end of each three
Mobile Home month quarter of each fiscal year of Borrower, a
Park balance sheet, a statement of income and expenses of
the Property and a statement of changes in financial
position is required; and upon lender's request, a
rent roll.
7003456 Broad Creek
Crossing Operating Statements and rent rolls are required to
Shopping Center be submitted semi-annually.
X-00
XXXXXXX X-0
FORM OF CERTIFICATE OF A SECRETARY
OR ASSISTANT SECRETARY OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-KEY2
Certificate of Secretary of Salomon
Brothers Realty Corp.
I, __________________, hereby certify that I am a duly elected and
acting Assistant Secretary of Salomon Brothers Realty Corp. (the "Company"),
and certify further as follows:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of New York;
2. Attached hereto as Exhibit A is a true, correct and complete copy
of the organizational documents of the Company, as in full force and effect on
the date hereof;
3. Attached hereto as Exhibit B is a certificate of the Secretary of
State of the State of New York issued within ten days of the date hereof with
respect to the good standing of the Company;
4. Since the date of the good standing certificate referred to in
clause 3 above, the Company has not received any notification from the
Secretary of State of New York, or from any other source, that the Company is
not in good standing in New York.
5. Attached hereto as Exhibit C are the resolutions of the board of
directors of the Company authorizing the transactions contemplated by the
Mortgage Loan Purchase Agreement dated as of September 17, 2002 (the "Mortgage
Loan Purchase Agreement"), between Salomon Brothers Mortgage Securities VII,
Inc. ("SBMS VII") and the Company, including the sale of the subject mortgage
loans (the "Mortgage Loans") by the Company to SBMS VII. Such resolutions are
in full force and effect on the date hereof and are not in conflict with any
other resolutions of the board of directors of the Company in effect on the
date hereof.
6. The Mortgage Loans do not constitute all or substantially all of
the assets of the Company.
7. To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Company are pending or contemplated.
8. Each person who, as an officer or representative of the Company,
signed (a) the Mortgage Loan Purchase Agreement, (b) the Indemnification
Agreement dated as of September 17, 2002 (the "Indemnification Agreement"),
among the Company, SBMS VII, Xxxxxxx Xxxxx Xxxxxx Inc., Credit Suisse First
Boston Corporation, McDonald Investments Inc. and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated or (c) any other document or certificate delivered
on or before the date hereof in connection with the transactions contemplated
by the
D-1-1
foregoing documents, was, at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed, qualified
and acting as such officer or representative, and the signature of such person
appearing on any such document is his or her genuine signature.
Capitalized terms used but not otherwise defined herein have the
respective meanings assigned to them in the Mortgage Loan Purchase Agreement
and, if not defined therein, then in the Indemnification Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name as of September
__, 2002.
By:
------------------------------
Name:
Title:
The undersigned, an officer of the Company, hereby certifies that
_______________________ is the duly elected and qualified and acting Assistant
Secretary of the Company and that the signature appearing above is his/her
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of September
__, 2002.
By:
------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-KEY
Certificate of Salomon Brothers Realty Corp.
In connection with the execution and delivery by Salomon Brothers
Realty Corp. ("SBRC") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of
September 17, 2002 (the "Mortgage Loan Purchase Agreement"), between Salomon
Brothers Mortgage Securities VII, Inc. ("SBMS VII") and SBRC, and the
Indemnification Agreement dated as of September 17, 2002 (the "Indemnification
Agreement"), among SBRC, SBMS VII, Xxxxxxx Xxxxx Xxxxxx Inc., Credit Suisse
First Boston Corporation, McDonald Investments Inc. and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (together, the Mortgage Loan Purchase Agreement
and the Indemnification Agreement are referred to herein as the "Agreements"),
the undersigned hereby certifies that (i) the representations and warranties
of SBRC in the Agreements are true and correct in all material respects at and
as of the date hereof (or, in the case of the representations and warranties
set forth in Exhibit C of the Mortgage Loan Purchase Agreement, as of such
other date specifically provided in the particular representation and
warranty) with the same effect as if made on the date hereof (or, in the case
of the representations and warranties set forth in Exhibit C of the Mortgage
Loan Purchase Agreement, on such other date specifically provided in the
particular representation and warranty), and (ii) SBRC has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part required under the Mortgage Loan Purchase Agreement to be performed
or satisfied at or prior to the date hereof. Capitalized terms used but not
otherwise defined herein have the respective meanings assigned to them in the
Mortgage Loan Purchase Agreement and, if not defined therein, then in the
Indemnification Agreement.
Certified this __th day of September, 2002.
SALOMON BROTHERS REALTY CORP.
By:
-----------------------------
Name:
Title:
X-0-0
XXXXXXX X-0X
XXXX XX XXXXXXX OF IN-HOUSE COUNSEL
TO THE SELLER
September 26, 2002
Addressees listed on Exhibit A hereto
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series 2002-KEY2
---------------------------------------------------------------
Ladies and Gentlemen:
This opinion is being provided to you in connection with (i) the
Mortgage Loan Purchase Agreement, dated as of September 17, 2002 (the
"Mortgage Loan Purchase Agreement"), between Salomon Brothers Mortgage
Securities VII, Inc. ("SBMS VII") and Salomon Brothers Realty Corp. (the
"Company"), relating to the sale by the Company of certain mortgage loans (the
"Mortgage Loans"), and (ii) the Indemnification Agreement dated as of
September 17, 2002 (the "Indemnification Agreement"), among the Company, SBMS
VII, Xxxxxxx Xxxxx Xxxxxx Inc., XxXxxxxx Investments, Inc., Credit Suisse
First Boston Corporation and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated. The Mortgage Loan Purchase Agreement and the Indemnification
Agreement are collectively referred to herein as the "Agreements". Capitalized
terms not otherwise defined herein have the meanings assigned to them in the
Mortgage Loan Purchase Agreement.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such corporate records of the Company,
certificates of public officials, officers of the Company and other persons
and other documents, agreements and instruments and have made such other
investigations as I have deemed necessary or appropriate for purposes of this
opinion.
Based upon the foregoing, I am of the opinion that:
1. The Company is a validly existing New York corporation in good
standing under the laws of the State of New York, with corporate power and
authority under such laws to enter into and perform its obligations under the
Agreements.
2. Each Agreement has been duly authorized, executed and delivered by
the Company.
3. To my knowledge, no consent, approval, authorization or order of
any court, governmental agency or body is required in connection with the
execution and delivery by
D-3A-1
the Company of the Agreements, except for those
consents, approvals, authorizations or orders that previously have been
obtained.
4. To my knowledge, the transfer of the Mortgage Loans as provided in
the Agreements and the fulfillment of the other terms of the Agreements will
not conflict with or result in a violation of the Certificate of Incorporation
or the By-laws of the Company or any agreement, instrument, order, writ,
judgment or decree to which the Company is a party or is subject.
5. To my knowledge, there are no actions or proceedings against the
Company, pending (with regard to which the Company has received service of
process) or overtly threatened in writing before any court, governmental
agency or arbitrator which affect the enforceability of the Agreements, or
which would draw into question the validity of the Agreements or any action
taken or to be taken in connection with the Company's obligations contemplated
therein, or which would materially impair the Company's ability to perform
under the terms of the Agreements.
The opinions expressed herein are limited to the laws of the State of
New York and the federal law of the United States.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon without my express written
consent.
Very truly yours,
D-3A-2
EXHIBIT D-3B
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX LLP,
SPECIAL COUNSEL TO THE SELLER
September 26, 2002
Salomon Brothers Mortgage Standard & Poor's Ratings Services
Securities VII, Inc. 00 Xxxxx Xxxxxx, 00xx Xxxxx
000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Moody's Investors Service, Inc.
Xxxxxxx Xxxxx Barney Inc. 00 Xxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Salomon Brothers Realty Corp.
McDonald Investments Inc. 000 Xxxxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxxx, Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
Credit Suisse First Boston Corporation 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2002-KEY2
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Salomon Brothers Realty Corp.
("SBRC") in connection with certain matters relating to the transactions
contemplated by that certain Mortgage Loan Purchase Agreement, dated as of
September 17, 2002 (the "Mortgage Loan Purchase Agreement"), between SBRC, as
seller, and Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII"), as
purchaser.
This opinion letter is being provided to you pursuant to Section 7(i)
of the Mortgage Loan Purchase Agreement. Capitalized terms 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 the purposes of this opinion letter, we have reviewed the
Mortgage Loan Purchase Agreement. In addition, we have examined originals or
copies, certified or otherwise
D-3B-1
identified to our satisfaction, of such other
documents and records as we have deemed relevant or necessary as the basis for
the opinions contained in this letter; we have obtained such certificates from
and made such inquiries of officers and representatives of the parties to the
Mortgage Loan Purchase Agreement and public officials as we have deemed
relevant or necessary as the basis for such opinions; and we have relied upon,
and assumed the accuracy of, such other documents and records, such
certificates and the statements made in response to such inquiries, with
respect to the factual matters upon which such opinions are based. We have
also assumed (i) the truthfulness and accuracy of each of the representations
and warranties as to factual matters material to this opinion contained in the
Mortgage Loan Purchase Agreement, (ii) the legal capacity of natural persons,
(iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed,
photostatic or electronic copies, (vi) the due organization of the parties to
the Mortgage Loan Purchase Agreement and the valid existence of each such
entity in good standing under the laws of its jurisdiction of organization,
(vii) except as expressly addressed in opinion paragraph 2 below, the power
and authority of the parties to the Mortgage Loan Purchase Agreement to enter
into, perform under and consummate the transactions contemplated by the
Mortgage Loan Purchase Agreement, without any resulting conflict with or
violation of the organizational documents of any such party or with or of any
law, rule, regulation, order or decree applicable to any such party or its
assets, and without any resulting default under or breach of any other
agreement or instrument by which any such party is bound or which is
applicable to it or its assets, (viii) the due authorization by all necessary
action, and the due execution and delivery, of the Mortgage Loan Purchase
Agreement by the parties thereto, (ix) except as expressly addressed in
opinion paragraph 1 below, the constitution of the Mortgage Loan Purchase
Agreement as the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, and (x) the
absence of any other agreement that supplements or otherwise modifies the
express terms of the Mortgage Loan Purchase Agreement.
In delivering this opinion letter, we do not express any opinions
concerning the laws of any jurisdiction other than the laws of the State of
New York and, where expressly referred to below, the federal laws of the
United States of America (without regard to conflicts of law principles). In
addition, we do not express any opinion with respect to the tax, securities or
"doing business" laws of any particular jurisdiction or with respect to any
matter not expressly addressed below.
Our opinions set forth below with respect to the enforceability of
any agreement or any particular right or obligation under any agreement are
subject to: (1) general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing and the doctrine of
estoppel; (2) the possible unavailability of specific performance and
injunctive relief, regardless of whether considered in a proceeding in equity
or at law; (3) the effect of certain laws, rules, regulations and judicial and
other decisions upon the enforceability of (a) any 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
D-3B-2
other remedies, to provide that the failure to exercise or the
delay in exercising rights or remedies will not operate as a waiver of such
rights or remedies, to impose penalties or forfeitures, or to provide for
set-off in the absence of mutuality between the parties, (c) any provision
that purports to release, exculpate or exempt a party from, or indemnify a
party for, liability for any act or omission on its part that constitutes
negligence, recklessness or willful or unlawful conduct, (d) any provision
that purports to govern matters of civil procedure, including any such
provision that purports to establish evidentiary standards, to waive
objections to venue or forum, to confer subject matter jurisdiction on any
court that would not otherwise have such jurisdiction or to waive any right to
a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever
any provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any
agreement or any particular provision thereof is to be governed by or
construed in accordance with the laws of any jurisdiction other than the State
of New York; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer,
moratorium and other similar laws affecting the rights of creditors or secured
parties generally; and (5) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit
the enforceability of any provision of any agreement that purports or is
construed to provide indemnification with respect to securities law
violations.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Mortgage Loan Purchase Agreement constitutes a valid,
legal and binding agreement of SBRC, enforceable against SBRC in
accordance with its terms.
2. The execution, delivery and performance of the Mortgage Loan
Purchase Agreement by SBRC will not conflict with or result in a
violation of any federal or State of New York statute or regulation
generally applicable to domestic corporations in connection with
transactions of the type contemplated by the Mortgage Loan Purchase
Agreement.
The opinions expressed herein are being delivered to you as of
the date hereof, and we assume no obligation to advise you of any changes of law
or fact that may occur after the date hereof, notwithstanding that such
changes may affect the legal analysis or conclusions contained herein. This
opinion letter is being delivered solely for your benefit in connection with
the transactions contemplated by the Mortgage Loan Purchase Agreement.
Accordingly, it may not be quoted, filed with any governmental authority or
other regulatory agency or otherwise circulated or utilized for any other
purpose without our prior written consent.
Very truly yours,
D-3B-3
EXHIBIT D-3C
FORM OF LETTER RELATING
TO DISCLOSURE FROM
SIDLEY XXXXXX XXXXX & XXXX LLP,
SPECIAL COUNSEL TO THE SELLER
September 26, 2002
Xxxxxxx Xxxxx Barney Inc. McDonald Investments Inc.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Credit Suisse First Boston Corporation Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
11 Madison Avenue Incorporated
Xxx Xxxx, Xxx Xxxx 00000 World Financial Center, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series 2002-KEY2
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Salomon Brothers Mortgage
Securities VII, Inc. (the "Depositor") and Salomon Brothers Realty Corp.
("SBRC"), in connection with certain matters relating to the following
transactions (collectively, the "Transactions"):
(i) the sale by SBRC, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "SBRC Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement,
dated as of September 17, 2002 (the "SBRC Mortgage Loan Purchase
Agreement"), between SBRC and the Depositor;
(ii) the sale by KeyBank National Association ("KeyBank"),
and the purchase by the Depositor, of certain multifamily and
commercial mortgage loans (the "KeyBank Mortgage Loans"), pursuant to
that certain Mortgage Loan Purchase Agreement, dated as of September 17,
2002 (the "KeyBank Mortgage Loan Purchase Agreement"), between KeyBank
and the Depositor;
(iii) the sale by Column Financial, Inc. ("Column"), and the
purchase by the Depositor, of certain multifamily and commercial
mortgage loans (the "Column Mortgage Loans"), pursuant to that certain
Mortgage Loan Purchase Agreement, dated as of September 17, 2002
(the "Column Mortgage Loan Purchase Agreement"), between Column and
the Depositor;
(iv) the creation of a common law trust (the "Trust") and
the issuance of an aggregate $932,759,715 Certificate Principal
Balance of Commercial Mortgage
D-3C-1
Pass-Through Certificates, Series 2002-KEY2 (the "Certificates"),
consisting of 22 classes designated Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F, Class X-1, Class X-2,
Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q, Class S, Class T, Class R and Class Y, pursuant to that
certain Pooling and Servicing Agreement, dated as of September 11,
2002 (the "Pooling and Servicing Agreement"), among the
Depositor as depositor, KeyCorp Real Estate Capital Markets, Inc.
d/b/a Key Commercial Mortgage as master servicer, ARCap Special
Servicing, Inc. as special servicer and Xxxxx Fargo Bank Minnesota,
N.A. as trustee;
(v) the conveyance of the SBRC Mortgage Loans, the KeyBank
Mortgage Loans and the Column Mortgage Loans (collectively, the
"Mortgage Loans") by the Depositor to the Trust, pursuant to the
Pooling and Servicing Agreement, in exchange for the issuance of the
Certificates; and
(vi) the sale by the Depositor, and the purchase by Xxxxxxx
Xxxxx Barney Inc. ("SSBI"), Credit Suisse First Boston Corporation
("CSFB"), McDonald Investments Inc. ("MII") and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"; and, collectively with
SSBI, CSFB and MII, the "Underwriters"), of the Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class E and Class F Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to that
certain Underwriting Agreement, dated as of September 17, 2002 (the
"Underwriting Agreement"), between the Depositor and the Underwriters.
The SBRC Mortgage Loan Purchase Agreement, the KeyBank Mortgage Loan
Purchase Agreement and the Column Mortgage Loan Purchase Agreement are
collectively referred to herein as the "Mortgage Loan Purchase Agreements".
The Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement and
the Underwriting Agreement are collectively referred to herein as the
"Agreements". Capitalized terms not defined herein have the respective
meanings set forth in the Pooling and Servicing Agreement and, to the extent
not defined therein, in the other Agreements.
For the purposes of this letter, we have reviewed: the Agreements;
the Depositor's registration statement on Form S-3 (No. 333-83816) (the
"Registration Statement") filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "1933
Act"); the Prospectus, dated September 3, 2002, relating to publicly offered
mortgage pass-through certificates evidencing interests in trust funds
established by the Depositor (the "Basic Prospectus"); and the Prospectus
Supplement, dated September 17, 2002, specifically relating to the Trust and
the Publicly Offered Certificates (including all exhibits and annexes thereto,
the "Original Prospectus Supplement") the Supplement to the Original
Prospectus Supplement (the "Additional Supplement"; and, together with the
Basic Prospectus and the Original Prospectus Supplement, the "Prospectus"). In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the statements made in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the respective parties to the Agreements and
public officials as we have deemed relevant or necessary as the basis for the
statements made in this letter; and we have relied upon, and assumed the
accuracy of, such other documents and records, such certificates
D-3C-2
and the statements made in response to such inquiries, with respect to the
factual matters upon which the statements made in this letter are based. We
have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the
Agreements, (ii) the legal capacity of natural persons, (iii) the genuineness
of all signatures, (iv) the authenticity of all documents submitted to us as
originals, (v) the conformity to authentic originals of all documents submitted
to us as certified, conformed, photostatic or electronic copies, (vi) the due
authorization by all necessary action, and the due execution and delivery, of
the Agreements by the parties thereto, (vii) the constitution of each of the
Agreements as the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, (viii) compliance
with the Agreements by the parties thereto, (ix) the conformity, to the
requirements of the Pooling and Servicing Agreement and the respective Mortgage
Loan Purchase Agreements, of the Mortgage Notes, the Mortgages and the other
documents relating to the Mortgage Loans delivered to the Custodian by, on
behalf of or at the direction of the Depositor, SBRC, KeyBank and Column, (x)
the conformity of the text of each document filed with the Commission through
the Commission's Electronic Data Gathering, Analysis and Retrieval System to the
printed documents reviewed by us, and (xi) the absence of any agreement that
supplements or otherwise modifies the express terms of the Agreements. In
rendering this letter, we do not make any statement concerning the laws of any
jurisdiction other than the federal laws of the United States of America.
In the course of acting as special counsel to the Depositor and SBRC
in connection with the preparation of the Prospectus, we have generally
reviewed and discussed with certain representatives of the Depositor, SBRC,
KeyBank, Column, SSBI and the other parties to the Agreements and their
respective counsel (in addition to us) the information set forth in the
Prospectus, other than any documents or information incorporated by reference
in the Prospectus. In addition, we have reviewed loan summaries delivered to
us by SBRC with respect to the SBRC Mortgage Loans; and we have undertaken a
limited review of selected Mortgage Loan documents with respect to certain
SBRC Mortgage Loans. While we have not otherwise made any independent check or
verification of, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the
D-3C-4
Prospectus, on the basis of the foregoing, nothing has come
to our attention that has caused us to believe that the Registration
Statement, as of its effective date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus, as of the date of the Additional Prospectus Supplement or as
of the date hereof, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that we make no statement as to: (i) any
accounting, financial or statistical data or other information of that nature
contained in or omitted from the Registration Statement or the Prospectus;
(ii) any documents or information incorporated by reference in the
Registration Statement or the Prospectus; (iii) any information on or omitted
from the diskette that accompanies the Prospectus; (iv) any information with
respect to the characteristics of the KeyBank Mortgage Loans, the related
Borrowers and/or the related Mortgaged Properties contained in or omitted from
the Registration Statement or the Prospectus; or (v) any information with
respect to the characteristics of the Column Mortgage Loans, the related
Borrowers and/or the related Mortgaged Properties, or with respect to the
servicing and administration of the Westfarms Mall Mortgage Loan, contained in
or omitted from the Registration Statement or the
Prospectus. In that connection, we advise you that we have, as to materiality,
relied to the extent we deemed appropriate upon the judgment of officers and
representatives of the Depositor, SBRC, KeyBank and Column. In addition, in
that connection, we call to your attention that, with your knowledge and
consent, except as stated above, we have not examined or otherwise reviewed
any of the Mortgage Files, Servicing Files or any particular documents
contained in such files or any other documents with respect to the Mortgage
Loans.
When used in this letter, the term "attention" or any other word or phrase of
similar import means the conscious awareness of facts or other information of
solely those attorneys who are currently practicing law with Sidley Xxxxxx
Xxxxx & Xxxx LLP and have been actively involved in representing the Depositor
and SBRC in connection with any matters relating to the Transactions. With
your permission, no attempt was made by such attorneys to gather information
from any other attorneys currently practicing law with Sidley Xxxxxx Xxxxx &
Xxxx LLP that may have represented the Depositor, SBRC or any of their
respective affiliates in other matters or to review any files associated with
those matters.
This letter is being delivered to you as of the date hereof, and we
assume no obligation to advise you of any changes of law or fact that may
occur after the date hereof, notwithstanding that such changes may affect the
statements made herein. This letter is solely for your benefit in connection
with the Transactions and may not be relied on in any manner for any other
purpose or by any other person (including, without limitation, any person who
acquires the Certificates from the persons to whom this letter is addressed)
or transmitted to any other person without our prior consent.
Very truly yours,
