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EXECUTION COPY
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.,
as Depositor,
ORIX REAL ESTATE CAPITAL MARKETS, LLC,
as Master Servicer and Special Servicer,
and
WELLS FARGO BANK MINNESOTA, N.A.,
as Trustee,
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2000
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Commercial Mortgage Pass-Through Certificates
Series 2000-C2
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL 3
SECTION 1.01. Defined Terms ............................................................... 3
SECTION 1.02. General Interpretive Principles ............................................. 53
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool ........................ 54
SECTION 1.04. Cross-Collateralized Mortgage Loans ......................................... 55
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR
INTERESTS, REMIC II REGULAR INTERESTS, REMIC III REGULAR INTERESTS AND CERTIFICATES 57
SECTION 2.01. Conveyance of Mortgage Loans ................................................ 57
SECTION 2.02. Acceptance of Mortgage Assets by Trustee .................................... 61
SECTION 2.03. Certain Repurchases of Mortgage Loans by the Originators .................... 62
SECTION 2.04. Representations and Warranties of the Depositor ............................. 65
SECTION 2.05. Representations and Warranties of the Master Servicer ....................... 68
SECTION 2.06. Representations and Warranties of the Special Servicer ...................... 69
SECTION 2.07. Representations and Warranties of the Trustee ............................... 71
SECTION 2.08. Designation of the Certificates ............................................. 72
SECTION 2.09. Creation of REMIC I; Issuance of the REMIC I Regular Interests and the
REMIC I Residual Interest; Certain Matters Involving REMIC I and the
Loan REMICs ................................................................. 73
SECTION 2.10. Conveyance of REMIC I Regular Interests; Acceptance of REMIC I Regular
Interests by Trustee. ....................................................... 76
SECTION 2.11. Creation of REMIC II; Issuance of the REMIC II Regular Interests and the
REMIC II Residual Interest; Certain Matters Involving REMIC II .............. 76
SECTION 2.12. Conveyance of REMIC II Regular Interests; Acceptance of REMIC II Regular
Interests by Trustee ........................................................ 79
SECTION 2.13. Creation of REMIC III; Issuance of the REMIC III Regular Interest
Certificates and the REMIC III Residual Interest; Certain Matters
Involving REMIC III ......................................................... 79
SECTION 2.14. Acceptance of Grantor Trusts by Trustee; Issuance of the Class Y and Class
R Certificates. ............................................................. 82
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND 84
SECTION 3.01. Administration of the Mortgage Loans ........................................ 84
SECTION 3.02. Collection of Mortgage Loan Payments ........................................ 85
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts;
Reserve Accounts. ........................................................... 85
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SECTION 3.04. Collection Account, Distribution Account, Interest Reserve Account and
Gain on Sale Reserve Fund ................................................... 88
SECTION 3.05. Permitted Withdrawals From the Collection Account, the Distribution Account,
the Interest Reserve Account and the Gain on Sale Reserve Fund .............. 91
SECTION 3.06. Investment of Funds in the Collection Account, Servicing Accounts,
Reserve Accounts and the REO Account ........................................ 95
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage 97
SECTION 3.08. Enforcement of Alienation Clauses ........................................... 101
SECTION 3.09. Realization Upon Defaulted Mortgage Loans ................................... 102
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files ............................. 106
SECTION 3.11. Master Servicing and Special Servicing Compensation; Interest on and
Reimbursement of Servicing Advances; Payment of Certain Expenses;
Obligations of the Trustee and any Fiscal Agent regarding Back-up Servicing
Advances .................................................................... 107
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of
Certain Reports. ............................................................ 112
SECTION 3.13. Annual Statement as to Compliance ........................................... 116
SECTION 3.14. Reports by Independent Public Accountants ................................... 116
SECTION 3.15. Access to Certain Information ............................................... 117
SECTION 3.16. Title to REO Property; REO Account .......................................... 118
SECTION 3.17. Management of REO Property .................................................. 119
SECTION 3.18. Sale of Mortgage Loans and REO Properties ................................... 122
SECTION 3.19. Additional Obligations of Master Servicer ................................... 125
SECTION 3.20. Modifications, Waivers, Amendments and Consents ............................. 130
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping. ............................................................. 134
SECTION 3.22. Sub-Servicing Agreements .................................................... 135
SECTION 3.23. Controlling Class Representative ............................................ 138
SECTION 3.24. Certain Rights and Powers of the Controlling Class Representative ........... 139
SECTION 3.25. Credit Tenant Leases ........................................................ 141
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS 144
SECTION 4.01. Distributions ............................................................... 144
SECTION 4.02. Statements to Certificateholders; Certain Other Reports ..................... 150
SECTION 4.03. P&I Advances ................................................................ 154
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses ............ 156
SECTION 4.05. Calculations ................................................................ 157
SECTION 4.06. Appointment of Certificate Administrator .................................... 157
ARTICLE V
THE CERTIFICATES 159
SECTION 5.01. The Certificates ............................................................ 159
SECTION 5.02. Registration of Transfer and Exchange of Certificates ....................... 159
SECTION 5.03. Book-Entry Certificates ..................................................... 166
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SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates ........................... 167
SECTION 5.05. Persons Deemed Owners ....................................................... 167
SECTION 5.06. Certification by Certificate Owners ......................................... 168
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER 169
SECTION 6.01. Liability of the Depositor, the Master Servicer and the Special Servicer .... 169
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the Master Servicer
or the Special Servicer ..................................................... 169
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicer, and the
Special Servicer. ........................................................... 169
SECTION 6.04. Master Servicer and Special Servicer Not to Resign .......................... 170
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the Master Servicer
and the Special Servicer .................................................... 171
SECTION 6.06. Designation of Special Servicer by the Controlling Class .................... 172
SECTION 6.07. Master Servicer or Special Servicer as Owner of a Certificate ............... 173
ARTICLE VII
DEFAULT 174
SECTION 7.01. Events of Default ........................................................... 174
SECTION 7.02. Trustee to Act; Appointment of Successor .................................... 177
SECTION 7.03. Notification to Certificateholders .......................................... 177
SECTION 7.04. Waiver of Events of Default ................................................. 178
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default ........................ 178
ARTICLE VIII
THE TRUSTEE 179
SECTION 8.01. Duties of Trustee ........................................................... 179
SECTION 8.02. Certain Matters Affecting the Trustee ....................................... 181
SECTION 8.03. Trustee and Fiscal Agent not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans .............................................. 182
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates ............................... 183
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee and
Fiscal Agent ................................................................ 183
SECTION 8.06. Eligibility Requirements for Trustee ........................................ 184
SECTION 8.07. Resignation and Removal of Trustee .......................................... 185
SECTION 8.08. Successor Trustee ........................................................... 186
SECTION 8.09. Merger or Consolidation of Trustee .......................................... 187
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee ............................... 187
SECTION 8.11. Appointment of Custodians ................................................... 188
SECTION 8.12. Access to Certain Information ............................................... 188
SECTION 8.13. Appointment of Fiscal Agent ................................................. 190
SECTION 8.14. Advance Security Arrangement ................................................ 191
SECTION 8.15. Filings with the Securities and Exchange Commission ......................... 192
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ARTICLE IX
TERMINATION 195
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans ............ 195
SECTION 9.02. Additional Termination Requirements ......................................... 197
ARTICLE X
ADDITIONAL TAX PROVISIONS 199
SECTION 10.01. Tax Administration .......................................................... 199
SECTION 10.02. Depositor, Master Servicer, Special Servicer, Trustee and Fiscal Agent to
Cooperate with Tax Administrator ............................................ 202
SECTION 10.03. Appointment of Tax Administrator ............................................ 202
ARTICLE XI
MISCELLANEOUS PROVISIONS 204
SECTION 11.01. Amendment ................................................................... 204
SECTION 11.02. Recordation of Agreement; Counterparts ...................................... 205
SECTION 11.03. Limitation on Rights of Certificateholders .................................. 205
SECTION 11.04. Governing Law ............................................................... 206
SECTION 11.05. Notices ..................................................................... 206
SECTION 11.06. Severability of Provisions .................................................. 207
SECTION 11.07. Successors and Assigns; Beneficiaries ....................................... 207
SECTION 11.08. Article and Section Headings ................................................ 207
SECTION 11.09. Notices to and from the Rating Agencies, the Depositor and Underwriters ..... 207
SECTION 11.10. Notices to Controlling Class Representative ................................. 209
SECTION 11.11. Complete Agreement .......................................................... 209
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EXHIBITS
EXHIBIT A-1 Form of Class X Certificates
EXHIBIT A-2 Form of Class A-1 and Class A-2 Certificates
EXHIBIT A-3 Form of Class B, Class C, Class D, Class E and Class
F Certificates
EXHIBIT A-4 Form of Class G, Class H, Class J, Class K, Class L,
Class M, Class N and Class P Certificates
EXHIBIT A-5 Form of Class Y Certificates
EXHIBIT A-6 Form of Class R Certificates
EXHIBIT B-1A Schedule of SBRC Mortgage Loans
EXHIBIT B-1B Schedule of PWRES Mortgage Loans
EXHIBIT B-1C Schedule of AMCC Mortgage Loans
EXHIBIT B-1D Schedule of ORECM Mortgage Loans
EXHIBIT B-1E Schedule of Mortgage Loans held by Loan REMICs
EXHIBIT B-1F Schedule of Environmentally Insured Mortgage Loans
EXHIBIT B-1G Schedule of Mortgage Loans with Cut-off Date
Principal Balances of $5,000,000 or more that do not
provide for Rating Agency Confirmation Regarding
Waiver of Due-on-Sale Clauses
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT B-4 Form of Mortgage Loan Seller Certification
EXHIBIT C-1 Letter of Representations among Depositor,
Certificate Administrator and initial Depository
EXHIBIT C-2 Form of Artesia Banking Corporation Comfort Letter
Relating to AMCC Mortgage Loan Purchase Agreement
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Distribution Date Statement
EXHIBIT E-2A Form of CMSA Loan Periodic Update File
EXHIBIT E-2B Form of CMSA Property File
EXHIBIT E-2C Form of CMSA Loan Set-up File
EXHIBIT E-3 Form of Comparative Financial Status Report
EXHIBIT E-4 Form of Delinquent Loan Status Report
EXHIBIT E-5 Form of Historical Loan Modification Report
EXHIBIT E-6 Form of Historical Liquidation Report
EXHIBIT E-7 Form of NOI Adjustment Worksheet
EXHIBIT E-8 Form of Operating Statement Analysis Report
EXHIBIT E-9 Form of REO Status Report
EXHIBIT E-10 Form of Servicer Watch List
EXHIBIT E-11 Form of Bond File
EXHIBIT E-12 Form of Collateral Summary File
EXHIBIT E-13 Form of Financial File
EXHIBIT E-14 Paid After Determination Date Report
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
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EXHIBIT F-2C Form I of Transferee Certificate for Transfers of
Interests in Class X Certificates Held in Book-Entry
Form
EXHIBIT F-2D Form II of Transferee Certificate for Transfers of
Interests in Class X Certificates Held in Book-Entry
Form
EXHIBIT G-1 Form of Transferee Certificate in Connection with
ERISA (Definitive Certificates)
EXHIBIT G-2 Form of Transferee Certificate in connection with
ERISA (Book-Entry Class X Certificates)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for
Transfers of Class R Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class
R Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning
Replacement of Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K Calculation of Net Operating Income
EXHIBIT L-1 Information Request from Certificateholder or
Certificate Owner
EXHIBIT L-2 Information Request from Prospective Investor
EXHIBIT M-1 Form of SBRC Mortgage Loan Purchase Agreement
EXHIBIT M-2 Form of PWRES Mortgage Loan Purchase Agreement
EXHIBIT M-3 Form of AMCC Mortgage Loan Purchase Agreement
EXHIBIT M-4 Form of ORECM Mortgage Loan Purchase Agreement
EXHIBIT N Schedule of Designated Sub-Servicers
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This Pooling and Servicing Agreement, is dated and effective
as of August 1, 2000, among SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. as
Depositor, ORIX REAL ESTATE CAPITAL MARKETS, LLC, as Master Servicer and Special
Servicer, and WELLS FARGO BANK MINNESOTA, N.A., as Trustee.
PRELIMINARY STATEMENT:
Salomon Brothers Realty Corp. (together with its successors in
interest, "SBRC") has sold to Salomon Brothers Mortgage Securities VII, Inc.
(together with its successors in interest, the "Depositor"), pursuant to the
Mortgage Loan Purchase Agreement dated as of August 15, 2000 (as such may from
time to time hereafter be amended, modified, supplemented and/or restated, the
"SBRC Mortgage Loan Purchase Agreement"), between SBRC and the Depositor, those
mortgage loans initially identified on the schedule attached hereto as Exhibit
B-1A (such mortgage loans, the "SBRC Mortgage Loans"). A form of the SBRC
Mortgage Loan Purchase Agreement is attached hereto as Exhibit M-1.
Paine Webber Real Estate Securities Inc. (together with its
successors in interest, "PWRES") has sold to the Depositor, pursuant to the
Mortgage Loan Purchase Agreement dated as of August 15, 2000 (as such may from
time to time hereafter be amended, modified, supplemented and/or restated, the
"PWRES Mortgage Loan Purchase Agreement"), between PWRES and the Depositor,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1B (such mortgage loans, the "PWRES Mortgage Loans"). A form of the
PWRES Mortgage Loan Purchase Agreement is attached hereto as Exhibit M-2.
Artesia Mortgage Capital Corporation (together with its
successors in interest, "AMCC") has sold to the Depositor, pursuant to the
Mortgage Loan Purchase Agreement dated as of August 15, 2000 (as such may from
time to time hereafter be amended, modified, supplemented and/or restated, the
"AMCC Mortgage Loan Purchase Agreement"), between AMCC and the Depositor, those
mortgage loans initially identified on the schedule attached hereto as Exhibit
B-1C (such mortgage loans, the "AMCC Mortgage Loans"). A form of the AMCC
Mortgage Loan Purchase Agreement is attached hereto as Exhibit M-3.
ORIX Real Estate Capital Markets, LLC (together with its
successors in interest, "ORECM") has sold to the Depositor, pursuant to the
Mortgage Loan Purchase Agreement dated as of August 15, 2000 (as such may from
time to time hereafter be amended, modified, supplemented and/or restated, the
"ORECM Mortgage Loan Purchase Agreement"), between ORECM and the Depositor,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1D (such mortgage loans, the "ORECM Mortgage Loans"). A form of the
ORECM Mortgage Loan Purchase Agreement is attached hereto as Exhibit M-4.
The Depositor desires, among other things, to: (i) establish a
trust fund, consisting primarily of the SBRC Mortgage Loans, the PWRES Mortgage
Loans, the AMCC Mortgage Loans and the ORECM Mortgage Loans and certain related
rights, funds and property; (ii) cause the issuance of mortgage pass-through
certificates in multiple classes, which certificates will, in the aggregate,
evidence the entire beneficial ownership interest in such trust fund; and (iii)
provide for the servicing and administration of the mortgage loans and other
assets that from time to time constitute part of such trust fund.
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Wells Fargo Bank Minnesota, N.A. (together with its successors
in interest, "Wells Fargo") desires to act as "Trustee" hereunder; and ORECM
desires to act as "Master Servicer" and "Special Servicer" hereunder.
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Section 1.01, subject to modification in accordance with
Section 1.04.
"30/360 Basis" shall mean the accrual of interest calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan" shall mean a Mortgage Loan that accrues
interest on a 30/360 Basis.
"ABC" shall mean Artesia Banking Corporation or its successor
in interest.
"Acquisition Date" shall mean, with respect to any REO
Property, the first day on which such REO Property is considered to be acquired
by the Trust within the meaning of Treasury regulation Section 1.856-6(b)(1),
which is the first day on which the Trust is treated as the owner of such REO
Property for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest
calculated on the basis of the actual number of days elapsed during any calendar
month (or other applicable accrual period) in a year assumed to consist of 360
days.
"Actual/360 Mortgage Loan" shall mean a Mortgage Loan that
accrues interest on an Actual/360 Basis.
"Additional Collateral" shall mean any non-real property
collateral (including any Letter of Credit, Reserve Funds and Escrow Payments)
pledged and/or delivered by the related Borrower and held by the mortgagee to
secure payment on any Mortgage Loan.
"Additional Master Servicing Compensation" shall have the
meaning assigned thereto in Section 3.11(b).
"Additional Right" shall mean, with respect to any Credit
Tenant Lease, any termination or abatement rights of the related Credit Tenant
arising from a Borrower's default under such Credit Tenant Lease in performing
certain obligations, including environmental remediation of conditions not
caused by the Tenant, enforcement of restrictive covenants affecting other
property owned by the Borrower, compliance with laws affecting the related
Mortgaged Property or common areas relating to such Mortgaged Property.
"Additional Special Servicing Compensation" shall have the
meaning assigned thereto in Section 3.11(d).
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"Additional Trust Fund Expense" shall mean any expense
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss that would result in the Holders of any Class of
REMIC III Regular Interest Certificates receiving less than the total of their
Current Interest Distribution Amount, Carryforward Interest Distribution Amount
and Principal Distribution Amount for any Distribution Date.
"Additional Yield Amount" shall have the meaning assigned
thereto in Section 4.01(d).
"Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to REMIC II Regular Interest A-1, for
any Interest Accrual Period, 7.298% per annum;
(b) with respect to REMIC II Regular Interest A-2, for
any Interest Accrual Period, 7.455% per annum;
(c) with respect to REMIC II Regular Interest B for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 7.526% per annum;
(d) with respect to REMIC II Regular Interest C for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 7.727% per annum;
(e) with respect to REMIC II Regular Interest D for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 7.834% per annum;
(f) with respect to REMIC II Regular Interest E for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 8.193% per annum;
(g) with respect to REMIC II Regular Interest F, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 8.200% per annum;
(h) with respect to REMIC II Regular Interest G, for any
Interest Accrual Period, a rate per annum equal to the related REMIC II
Remittance Rate for such Interest Accrual Period;
(i) with respect to each of REMIC II Regular Interests H,
J, K, L and M for any Interest Accrual Period, 6.308% per annum; and
(j) with respect to each of REMIC II Regular Interests N
and P, for any Interest Accrual Period, 6.808% per annum.
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"Administrative Fee Rate" shall mean, with respect to each
Mortgage Loan (and any successor REO Mortgage Loan), the sum of the related
Master Servicing Fee Rate, plus the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Advance Interest" shall mean the interest accrued on any
Advance at the Reimbursement Rate, which is payable to the party hereto that
made that Advance, all in accordance with Section 3.11(g) or Section 4.03(d), as
applicable.
"Advance Security Arrangement" shall have the meaning assigned
thereto in Section 8.14.
"Adverse Grantor Trust Event" shall mean either: (i) any
impairment of the status of either Grantor Trust Pool as a Grantor Trust; or
(ii) the imposition of a tax upon either Grantor Trust Pool or any of its assets
or transactions.
"Adverse Rating Event" shall mean, with respect to any Class
of Rated Certificates and each Rating Agency that has assigned a rating thereto,
as of any date of determination, the qualification, downgrade or withdrawal of
the rating then assigned to such Class of Rated Certificates by such Rating
Agency (or the placing of such Class of Rated Certificates on watch status in
contemplation of any such action with respect thereto).
"Adverse REMIC Event" shall mean either: (i) any impairment of
the status of any REMIC Pool as a REMIC; or (ii) the imposition of a tax upon
any REMIC Pool or any of its assets or transactions (including the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on contributions set forth in Section 860G(d) of the Code).
"Affiliate" shall mean, with respect to any specified Person,
any other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement,
as it may be amended, modified, supplemented or restated following the Closing
Date.
"A.M. Best" shall mean A.M. Best Company or its successor in
interest.
"AMCC" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"AMCC Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"AMCC Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
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"Annual Accountants' Report" shall have the meaning assigned
thereto in Section 3.14.
"Annual Performance Certification" shall have the meaning
assigned thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any
ARD Loan, the date specified in the related Mortgage Note, as of which Post-ARD
Additional Interest shall begin to accrue on such Mortgage Loan, which date is
prior to the Stated Maturity Date for such Mortgage Loan.
"Appraisal" shall mean, with respect to any Mortgaged Property
or REO Property as to which an appraisal is required to be performed pursuant to
the terms of this Agreement, a narrative appraisal complying with USPAP (or, in
the case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal
Balance as of the date of such appraisal of $1,000,000 or less, at the Special
Servicer's option, either a limited appraisal and a summary report or an
internal valuation prepared by the Special Servicer) that (i) indicates the
"market value" of the subject property (within the meaning of 12 CFR Section
225.62(g)) and (ii) is conducted by a Qualified Appraiser (except that, in the
case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance
as of the date of such appraisal of $1,000,000 or less, at the Special
Servicer's option, the appraiser may be an employee of the Special Servicer).
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated as of the Determination Date
immediately following the later of the date on which the most recent relevant
Appraisal acceptable for purposes of Section 3.19(c) hereof was obtained by the
Special Servicer pursuant to this Agreement and the date of the most recent
Appraisal Trigger Event with respect to such Required Appraisal Loan) equal to
the excess, if any, of:
(l) the sum of (a) the Stated Principal Balance of such
Required Appraisal Loan as of such Determination Date, (b) to the
extent not previously advanced by or on behalf of the Master Servicer,
the Trustee or any Fiscal Agent, all unpaid interest (net of Default
Interest and, in the case of an ARD Loan after its Anticipated
Repayment Date, Post-ARD Additional Interest) accrued on such Required
Appraisal Loan through the most recent Due Date prior to such
Determination Date, (c) all unpaid Special Servicing Fees accrued in
respect of such Required Appraisal Loan, (d) all related unreimbursed
Advances made by or on behalf of the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent in respect of such Required
Appraisal Loan, together with all unpaid Advance Interest accrued on
such Advances, and (e) all currently due but unpaid real estate taxes
and assessments, insurance premiums and, if applicable, ground rents in
respect of the related Mortgaged Property or REO Property; over
(2) the sum of (x) the excess, if any, of (i) 90% of the
Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by the most recent relevant Appraisal
acceptable for purposes of Section 3.19(c) hereof, over (ii) the amount
of any obligation(s) secured by any liens on such Mortgaged Property or
REO Property, as applicable, that are prior to the lien of the Required
Appraisal Loan, and (y) any
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Escrow Payments, Reserve Funds and/or Letters of Credit held by the
Master Servicer or the Special Servicer with respect to (i) unpaid real
estate taxes and assessments, insurance premiums and, if applicable,
ground rents in respect of the related Mortgaged Property or REO
Property, (ii) tenant improvements and leasing commissions in respect
of the related Mortgaged Property and/or (iii) debt service on such
Required Appraisal Loan.
Notwithstanding the foregoing, if (i) an Appraisal Trigger
Event occurs with respect to any Mortgage Loan, (ii) either (A) no Appraisal (or
update to an Appraisal) has been obtained or conducted, as applicable, in
accordance with Section 3.19(c), with respect to the related Mortgaged Property
during the 12-month period prior to the date of such Appraisal Trigger Event or
(B) there shall have occurred since the date of the most recent Appraisal (or
update to an Appraisal) a material change in the circumstances surrounding the
related Mortgaged Property that would, in the Special Servicer's judgment,
materially affect the value of the property, and (iii) no new Appraisal is
obtained or conducted, as applicable in accordance with Section 3.19(c), within
90 days after such Appraisal Trigger Event, then (x) until such new Appraisal is
obtained or conducted, as applicable in accordance with Section 3.19(c), the
Appraisal Reduction Amount shall equal 25% of the Stated Principal Balance of
such Required Appraisal Loan, and (y) upon receipt or performance, as applicable
in accordance with Section 3.19(c), of such Appraisal by the Special Servicer,
the Appraisal Reduction Amount for such Required Appraisal Loan will be
recalculated in accordance with the preceding sentence of this definition. In
connection with the foregoing, each Cross-Collateralized Mortgage Loan that is
part of a single Cross-Collateralized Group shall be treated separately for
purposes of calculating an Appraisal Reduction Amount.
"Appraisal Trigger Event" shall mean, with respect to any
Mortgage Loan, any of the following events:
(i) such Mortgage Loan becomes a Modified Mortgage Loan,
including by reason of an extension;
(ii) the Borrower under such Mortgage Loan becomes the
subject of bankruptcy, insolvency or similar proceedings;
(iii) either (A) any Monthly Payment with respect to such
Mortgage Loan remains unpaid for 60 days past the Due Date for such
payment or (B) any other material payment due under the related
Mortgage Loan documents remains unpaid for 180 days past the date on
which that payment was first required to be made;
(iv) a receiver is appointed with respect to the related
Mortgaged Property; or
(v) the related Mortgaged Property becomes an REO
Property;
provided, however, no Appraisal shall be required upon the occurrence of an
Appraisal Trigger Event if there has been an Appraisal or an update of an
Appraisal obtained or conducted, as applicable, in accordance with Section
3.19(c) with respect to the related Mortgaged Property within the preceding
12-months.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or REO Property, the appraised value thereof (as is) based upon the
most recent Appraisal obtained or
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conducted, as appropriate, pursuant to this Agreement; provided, however, that,
for purposes of this Agreement, no party hereto may rely on an Appraisal that is
more than 12 months old (it being understood and agreed that this provision is
not intended by itself to impose any separate obligation on any party hereto to
periodically update Appraisals).
"ARD Loan" shall mean a Mortgage Loan that provides for the
accrual of Post-ARD Additional Interest thereon if such Mortgage Loan is not
paid in full on or prior to its Anticipated Repayment Date.
"Assignment of Leases" shall mean, with respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
document or instrument executed by the related Borrower in connection with the
origination of the related Mortgage Loan, as such assignment may be amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment" shall mean:
(a) with respect to any Balloon Mortgage Loan delinquent
in respect of its Balloon Payment, beyond the Determination Date
immediately following its scheduled maturity date (as such date may be
extended in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or by reason of a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20), for that scheduled maturity date
and for each subsequent Due Date as of which such Mortgage Loan remains
outstanding and part of the Trust Fund, the scheduled monthly payment
of principal and/or interest deemed to be due with respect to such
Mortgage Loan on such Due Date equal to the amount that would have been
due in respect thereof on such Due Date (other than any Default
Interest) if such Mortgage Loan had been required to continue to accrue
interest in accordance with its terms, and to pay principal in
accordance with the amortization schedule (if any) in effect
immediately prior to, and without regard to the occurrence of, such
maturity date; and
(b) with respect to any REO Mortgage Loan, for any Due
Date as of which the related REO Property remains part of the Trust
Fund, the scheduled monthly payment of principal and/or interest deemed
to be due in respect thereof on such Due Date equal to the Monthly
Payment (or, in the case of a Balloon Mortgage Loan described in clause
(a) of this definition, the Assumed Monthly Payment) that was due (or
deemed due) in respect of the related Mortgage Loan on the last Due
Date prior to its becoming an REO Mortgage Loan.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
"Balloon Payment" shall mean any Monthly Payment payable on a
Mortgage Loan at scheduled maturity that (i) is at least three times as large as
the normal Monthly Payment due on such Mortgage Loan and (ii) includes a
principal component equal to at least 5% of the original principal balance of
such Mortgage Loan.
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"Bankruptcy Code" shall mean the federal Bankruptcy Code, as
amended from time to time (Title 11 of the United States Code).
"Base Prospectus" shall mean that certain prospectus dated
August 4, 2000, relating to trust funds established by the Depositor and
publicly offered mortgage pass-through certificates evidencing interests
therein.
"Bond File" shall mean the monthly report containing the
information called for in the form attached hereto as Exhibit E-11, which report
shall be in the form of such Exhibit E-11 or such other form for the
presentation of such information as may from time to time be recommended by the
CMSA for commercial mortgage securities transactions generally (but in any event
containing no less information than that called for in such Exhibit E-11).
"Book-Entry Certificate" shall mean any Certificate registered
in the name of the Depository or its nominee.
"Book-Entry Subordinate Certificate" shall mean any
Subordinate Certificate that constitutes a Book-Entry Certificate.
"Borrower" shall mean the obligor or obligors on a Mortgage
Note, including any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note.
"Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New York, the city or
cities in which the Primary Servicing Offices of the Master Servicer and the
Special Servicer are located or the city in which the Corporate Trust Office of
the Trustee is located, are authorized or obligated by law or executive order to
remain closed.
"Carryforward Interest Distribution Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any
Distribution Date, have the meaning assigned thereto in Section
2.09(g);
(b) with respect to any REMIC II Regular Interest, for
any Distribution Date, have the meaning assigned thereto in Section
2.11(g); and
(c) with respect to any Class of REMIC III Regular
Interest Certificates, for any Distribution Date, have the meaning
assigned thereto in Section 2.13(g);
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the Depositor's Commercial
Mortgage Pass-Through Certificates, Series 2000-C2, as executed by the Trustee
and authenticated and delivered hereunder by the Certificate Registrar.
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"Certificate Administrator" shall mean any certificate
administrator appointed pursuant to Section 4.06 (or, in the absence of any such
appointee acting in such capacity, the Trustee).
"Certificate Factor" shall mean, with respect to any Class of
REMIC III Regular Interest Certificates, as of any date of determination, a
fraction, expressed as a decimal carried to eight places, the numerator of which
is the related Class Principal Balance or Class Notional Amount, as the case may
be, then outstanding, and the denominator of which is the related Class
Principal Balance or Class Notional Amount, as the case may be, outstanding as
of the Closing Date.
"Certificateholder" or "Holder" shall mean the Person in whose
name a Certificate is registered in the Certificate Register, provided, however,
that: (i) neither a Disqualified Organization nor a Non-United States Person
shall be a "Holder" of, or a "Certificateholder" with respect to, a Class R
Certificate for any purpose hereof; and (ii) solely for purposes of giving any
consent, approval, direction or waiver pursuant to this Agreement that
specifically relates to the rights, duties and/or obligations hereunder of any
of the Depositor, the Master Servicer, the Special Servicer, the Tax
Administrator, the Certificate Administrator, the Trustee or any Fiscal Agent in
its respective capacity as such (other than any consent, approval or waiver
contemplated by any of Sections 3.23, 3.24 and 6.06), any Certificate registered
in the name of such party or in the name of any Affiliate thereof shall be
deemed not to be outstanding, and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the requisite percentage
of Voting Rights necessary to effect any such consent, approval or waiver that
specifically relates to such party has been obtained. The Certificate Registrar
shall be entitled to request and conclusively rely upon a certificate of the
Depositor, the Master Servicer or the Special Servicer in determining whether a
Certificate is registered in the name of an Affiliate of such Person. All
references herein to "Certificateholders" or "Holders" shall reflect the rights
of Certificate Owners only insofar as they may indirectly exercise such rights
through the Depository and the Depository Participants (except as otherwise
specified herein), it being herein acknowledged and agreed that the parties
hereto shall be required to recognize as a "Certificateholder" or "Holder" only
the Person in whose name a Certificate is registered in the Certificate
Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution Date Statement and the CMSA Investor Reporting Package (excluding
the Loan Set-Up File).
"Certificate Notional Amount" shall mean, with respect to any
Class X Certificate, as of any date of determination, the then notional
principal amount on which such Certificate accrues interest, equal to the
product of (a) the then Certificate Factor for the Class X Certificates,
multiplied by (b) the amount specified on the face of such Certificate as the
initial Certificate Notional Amount thereof.
"Certificate Owner" shall mean, with respect to any Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
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"Certificate Principal Balance" shall mean, with respect to
any Principal Balance Certificate, as of any date of determination, the then
outstanding principal amount of such Certificate equal to the product of (a) the
then Certificate Factor for the Class of Principal Balance Certificates to which
such Certificate belongs, multiplied by (b) the amount specified on the face of
such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar" shall mean
the register maintained and the registrar appointed or otherwise acting pursuant
to Section 5.02.
"Chase" shall mean The Chase Manhattan Bank or its successor
in interest.
"Class" shall mean, collectively, all of the Certificates
bearing the same alphabetical and, if applicable, numerical class designation
and having the same payment terms. The respective Classes of Certificates are
designated in Section 2.08(a). Any reference in any other Section or Subsection
of this Agreement to any Certificate or Certificates preceded by a Class
designation shall be to a Certificate or Certificates of the Class so designated
in Section 2.08(a).
"Class A Certificate" shall mean any of the Certificates
designated as such in Section 2.08(b).
"Class Notional Amount" shall mean the aggregate hypothetical
or notional amount on which the Class X Certificates (as a collective whole)
accrue interest from time to time, as calculated in accordance with Section
2.13(e).
"Class Principal Balance" shall mean the aggregate principal
balance outstanding from time to time of any Class of Principal Balance
Certificates, as calculated in accordance with Section 2.13(e).
"Class X Portion" shall mean:
(a) when used with respect to the Interest Accrual Amount
in respect of any REMIC II Regular Interest for any Interest Accrual
Period, the portion of such Interest Accrual Amount that is equal to
the product of (i) the entire such Interest Accrual Amount, multiplied
by (ii) a fraction (not less than zero or greater than one), the
numerator of which is the excess, if any, of the REMIC II Remittance
Rate with respect to such REMIC II Regular Interest for such Interest
Accrual Period, over the Adjusted REMIC II Remittance Rate with respect
to such REMIC II Regular Interest for such Interest Accrual Period, and
the denominator of which is the REMIC II Remittance Rate with respect
to such REMIC II Regular Interest for such Interest Accrual Period;
(b) when used with respect to the Current Interest
Distribution Amount in respect of any REMIC II Regular Interest for any
Distribution Date, the portion of such Current Interest Distribution
Amount that is equal to (i) the Class X Portion of the Interest Accrual
Amount with respect to such REMIC II Regular Interest for the related
Interest Accrual Period, reduced (to not less than zero) by (ii) the
product of (A) any portion of the Net Aggregate Prepayment Interest
Shortfall for such Distribution Date that is allocable to such REMIC II
Regular Interest in accordance with Section 2.11(g), multiplied by (B)
a fraction, the numerator of which is equal to the Class X Portion of
the Interest Accrual Amount with
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respect to such REMIC II Regular Interest for the related Interest
Accrual Period, and the denominator of which is equal to the entire
Interest Accrual Amount with respect to such REMIC II Regular Interest
for the related Interest Accrual Period; and
(c) when used with respect to the Carryforward Interest
Distribution Amount in respect of any REMIC II Regular Interest for any
Distribution Date, the portion of such Carryforward Interest
Distribution Amount that is equal to the excess, if any, of (i) the
aggregate of the Class X Portions of all Current Interest Distribution
Amounts with respect to such REMIC II Regular Interest for all prior
Distribution Dates, if any, over (ii) the aggregate amount of interest
deemed distributed to REMIC III with respect to such REMIC II Regular
Interest on all such prior Distribution Dates, if any, pursuant to the
first two sentences of Section 4.01(k).
"Class Y Sub-Account" shall mean a sub-account of the
Distribution Account established pursuant to Section 3.04(b), which sub-account
shall constitute an asset of the Trust Fund and Grantor Trust Y, but not an
asset of any REMIC Pool.
"Closing Date" shall mean August 24, 2000.
"CMSA" shall mean the Commercial Mortgage Securities
Association, or any association or organization that is a successor thereto.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) Loan Set-Up
File, (ii) Loan Periodic Update File, (iii) Property File, (iv) Bond
File, (v) Financial File and (vi) Collateral Summary File; and
(b) the following eight supplemental reports: (i)
Delinquent Loan Status Report, (ii) Historical Loan Modification
Report, (iii) Historical Liquidation Report, (iv) REO Status Report,
(v) Operating Statement Analysis Report, (vi) Comparative Financial
Status Report, (vii) Servicer Watch List and (viii) NOI Adjustment
Worksheet.
"Code" shall mean the Internal Revenue Code of 1986 and
regulations promulgated thereunder, including proposed regulations to the extent
that, by reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collateral Summary File" shall mean the monthly report
containing the information called for in the form attached hereto as Exhibit
E-12, which report shall be in the form of such Exhibit E-12 or such other form
for the presentation of such information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
"Collection Account" shall mean the segregated account or
accounts created and maintained by the Master Servicer pursuant to Section
3.04(a) in trust for the Certificateholders, which shall be entitled "ORIX Real
Estate Capital Markets, LLC [or the name of any successor Master Servicer], as
Master Servicer on behalf of Wells Fargo Bank Minnesota, N.A. [or the name of
any successor Trustee], as Trustee, in trust for the registered holders of
Salomon Brothers
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<PAGE> 20
Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-C2, Collection Account".
"Collection Period" shall mean, with respect to any
Distribution Date, the period commencing immediately following the Determination
Date in the calendar month preceding the month in which such Distribution Date
occurs (or, in the case of the initial Distribution Date, commencing immediately
following the Cut-off Date) and ending on and including the Determination Date
in the calendar month in which such Distribution Date occurs.
"Commission" shall mean the Securities and Exchange Commission
or any successor thereto.
"Comparative Financial Status Report" shall mean a report
substantially in the form of Exhibit E-3 hereto, setting forth, among other
things, (a) the occupancy and the Debt Service Coverage Ratio for the related
Mortgage Property as of the date of the latest financial information received
(covering no less than twelve (12) consecutive months trailing available)
immediately preceding the preparation of such report, and (b) the revenue and
Net Operating Income for each of the following periods (to the extent such
information is in the Master Servicer's or the Special Servicer's possession):
(i) each of the two (2) previous consecutive available fiscal years stated
separately; and (ii) the "base year" (representing the original analysis of
information used as of the Cut-off Date.)
"Compensating Interest Payment" shall mean, with respect to
any Distribution Date, any payment made by the Master Servicer pursuant to
Section 3.19(a) to cover Prepayment Interest Shortfalls incurred during the
related Collection Period.
"Condemnation Proceeds" shall mean all cash amounts received
by the Master Servicer or the Special Servicer in connection with the taking of
all or a part of a Mortgaged Property by exercise of the power of eminent domain
or condemnation, exclusive of any portion thereof required to be released to the
related Borrower or any other third party in accordance with applicable law
and/or the terms and conditions of the related Mortgage Note and Mortgage or any
document to which the related Mortgage Note and Mortgage are subject.
"Controlling Class" shall mean, as of any date of
determination, the Class of Principal Balance Certificates with the lowest
payment priority pursuant to Sections 4.01(a) and 4.01(b), that has a then
outstanding Class Principal Balance that is not less than 25% of its initial
Class Principal Balance; provided that, if no Class of Principal Balance
Certificates has a Class Principal Balance that satisfies the foregoing
requirement, then the Controlling Class shall be the Class of Principal Balance
Certificates with the lowest payment priority pursuant to Sections 4.01(a) and
4.01(b), that has a then outstanding Class Principal Balance greater than zero.
For purposes of this definition, the Class A-1 and Class A-2 Certificates shall
be treated as a single Class and, if appropriate under the terms of this
definition, shall collectively constitute the Controlling Class.
"Controlling Class Certificateholder" shall mean any Holder of
Certificates of the Controlling Class.
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"Controlling Class Representative" shall have the meaning
assigned thereto in Section 3.23(a).
"Corporate Trust Office" shall mean the principal corporate
trust office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 11000 Broken Land
Parkway, Columbia, Maryland 21044-3562, Attention: Corporate Trust
Administration/Salomon Brothers Mortgage Securities VII, Inc., Series 2000-C2.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that
had been a Specially Serviced Mortgage Loan but has ceased to be such in
accordance with the definition of "Specially Serviced Mortgage Loan" (other than
by reason of (i) a Liquidation Event occurring in respect of such Mortgage Loan
or (ii) the related Mortgaged Property becoming an REO Property).
"Corresponding Class of Principal Balance Certificates" shall
mean, with respect to any REMIC II Regular Interest, the Class of Principal
Balance Certificates that has an alphabetical and, if applicable, numerical
Class designation that is the same as the alphabetical and, if applicable,
numerical designation for such REMIC II Regular Interest.
"Corresponding REMIC II Regular Interest" shall mean, with
respect to any Class of Principal Balance Certificates, the REMIC II Regular
Interest that has an alphabetical and, if applicable, numerical designation that
is the same as the alphabetical and, if applicable, numerical Class designation
for such Class of Principal Balance Certificates.
"Credit Tenant" shall mean a tenant under a net lease that
leases all or substantially all of a Mortgaged Property securing any of the
Mortgage Loans, which tenant possesses or has a parent company that possesses,
or which tenant's lease obligations are guaranteed by an affiliate that
possesses, a public senior unsecured long-term debt or similar rating of at
least investment grade from one or more nationally recognized statistical rating
organizations.
"Credit Tenant Lease" shall mean a net lease with a Credit
Tenant, which lease covers all or substantially all of a Mortgaged Property
securing any of the Mortgage Loans.
"Cross-Collateralized Group" shall mean any group of Mortgage
Loans that is cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage
Loan, that is, by its terms, cross-defaulted and cross-collateralized with any
other Mortgage Loan.
"CSI" shall mean Chase Securities Inc. or its successor in
interest;
"CTL Loan" shall mean each Mortgage Loan that is identified as
a "CTL Loan" on the Mortgage Loan Schedule.
"Current Interest Distribution Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any
Distribution Date, have the meaning assigned thereto in Section
2.09(g);
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(b) with respect to any REMIC II Regular Interest, for
any Distribution Date, have the meaning assigned thereto in Section
2.11(g); and
(c) with respect to any Class of REMIC III Regular
Interest Certificates, for any Distribution Date, have the meaning
assigned thereto in Section 2.13(g).
"Custodian" shall mean a Person who is at any time appointed
by the Trustee pursuant to Section 8.11 as a document custodian on behalf of the
Trustee for the Mortgage Files.
"Cut-off Date" shall mean August 1, 2000.
"Cut-off Date Principal Balance" shall mean, with respect to
any Mortgage Loan, the outstanding principal balance of such Mortgage Loan as of
the Cut-off Date, after application of all payments of principal due on or
before such date, whether or not received.
"Debt Service Coverage Ratio" shall mean, with respect to any
Mortgage Loan, as of any date of determination, and without regard to the
cross-collateralization in the case of any Cross-Collateralized Mortgage Loan,
the ratio of (x) the Net Operating Income (before payment of debt service on
such Mortgage Loan) generated by the related Mortgaged Property during the most
recently ended twelve month trailing period, to (y) the product of (i) 12 times
(ii) the Monthly Payment in effect for such Mortgage Loan and allocated on a
Mortgaged Property basis as indicated in the Property File as of such date of
determination.
"Default Charges" shall mean Default Interest and/or late
payment charges that are paid or payable, as the context may require, in respect
of any Mortgage Loan or REO Mortgage Loan.
"Default Interest" shall mean, with respect to any Mortgage
Loan (or successor REO Mortgage Loan), any amounts collected thereon, other than
late payment charges or Prepayment Premiums, that represent interest (exclusive,
if applicable, of Post-ARD Additional Interest) in excess of interest accrued on
the principal balance of such Mortgage Loan (or REO Mortgage Loan) at the
related Mortgage Rate, such excess interest arising out of a default under such
Mortgage Loan.
"Defaulted Mortgage Loan" shall mean a Specially Serviced
Mortgage Loan (i) that is delinquent in an amount equal to at least two Monthly
Payments (not including the Balloon Payment, if any) or is delinquent 30 days or
more in respect of its Balloon Payment, provided that if the related Borrower
has a written firm commitment within 30 days following the date on which the
Balloon Payment was due to refinance such Specially Serviced Mortgage Loan, such
Mortgage Loan shall not become a Defaulted Mortgage Loan until such Mortgage
Loan is delinquent for 60 days beyond its Balloon Payment, in either case such
delinquency to be determined without giving effect to any grace period permitted
by the related Mortgage or Mortgage Note and without regard to any acceleration
of payments under the related Mortgage and Mortgage Note, or (ii) as to which
the Special Servicer has, by written notice to the related Borrower, accelerated
the maturity of the indebtedness evidenced by the related Mortgage Note.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
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"Defeasance Loan" shall mean a Mortgage Loan that permits the
related Borrower to obtain a release of the related Mortgaged Property through
defeasance.
"Definitive Certificate" shall have the meaning assigned
thereto in Section 5.03(a).
"Deleted Mortgage Loan" shall mean a Mortgage Loan which is
repurchased from the Trust as contemplated by Section 2.03.
"Delinquent Loan Status Report" shall mean a report
substantially in the form of Exhibit E-4 hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date for the related Distribution Date, were (i) delinquent 30-59
days, (ii) delinquent 60-89 days, (iii) delinquent 90 days or more, (iv) current
but specially serviced, or (v) in foreclosure but as to which the related
Mortgaged Property has not become an REO Property, and which report shall
include such additional commentary in respect of each such Mortgage Loan, such
as whether the related Borrower has filed for bankruptcy or similar protection,
as set forth on Exhibit E-4 attached hereto.
"Depositor" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Depository" shall mean the Depository Trust Company, or any
successor Depository hereafter named as contemplated by Section 5.03(c). The
nominee of the initial Depository for purposes of registering those Certificates
that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or
other financial institution or other Person for whom from time to time the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Designated Sub-Servicer" shall mean any Sub-Servicer set
forth on Exhibit N hereto and any successor thereto under the related
Sub-Servicing Agreement.
"Designated Sub-Servicer Agreement" shall mean any
Sub-Servicing Agreement between a Designated Sub-Servicer and the Master
Servicer.
"Determination Date" shall mean, with respect to any calendar
month, commencing in September 2000, the 10th day of such month (or, if such
10th day is not a Business Day, the immediately preceding Business Day). Each
Determination Date will relate to the Distribution Date in the same calendar
month.
"Directly Operate" shall mean, with respect to any REO
Property, the furnishing or rendering of services to the tenants thereof, the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers (other than the sale of REO Property pursuant to
Section 3.18(d)), the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by the Trust other than
through an Independent Contractor; provided, however, that the Special Servicer
(or any Sub-Servicer on behalf of the Special Servicer) shall not be considered
to Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the
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Special Servicer) establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to repairs
or capital expenditures with respect to such REO Property.
"Discount Rate" shall have the meaning assigned thereto in
Section 4.01(d).
"Disqualified Organization" shall mean any of the following:
(i) the United States or a possession thereof, any State or any political
subdivision thereof, or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its activities
are subject to tax and, except for Freddie Mac, a majority of its board of
directors is not selected by any such governmental unit), (ii) a foreign
government, international organization, or any agency or instrumentality of
either of the foregoing, (iii) any organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
or (v) any other Person so designated by the Tax Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Class R
Certificate by such Person may cause the Trust or any Person having an Ownership
Interest in any Class of Certificates, other than such Person, to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the Transfer of an Ownership Interest in a Class R Certificate
to such Person. The terms "United States", "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions.
"Distribution Account" shall mean the segregated account or
accounts created and maintained by the Certificate Administrator on behalf of
the Trustee pursuant to Section 3.04(b) in trust for the Certificateholders,
which shall be entitled "Wells Fargo Bank Minnesota, N.A. [or the name of any
successor Trustee], as Trustee, in trust for the registered holders of Salomon
Brothers Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-C2, Distribution Account".
"Distribution Date" shall mean, with respect to any calendar
month, commencing in September 2000, the 18th day of such month (or, if such
18th day is not a Business Day, the Business Day immediately following).
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in
Section 2.03(a).
"Due Date" shall mean, with respect to any Mortgage Loan (and
any successor REO Mortgage Loan), the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is scheduled
to be first due.
"EDGAR" shall mean the Electronic Data Gathering, Analysis,
and Retrieval System of the Commission, the computer system for the receipt,
acceptance, review and dissemination of documents submitted to the Commission in
electronic format.
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"Eligible Account" shall mean any of (i) an account maintained
with a federal or state chartered depository institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which (or of such
institution's parent holding company) are rated no less than "Aa3" by Moody's
and, if then rated thereby, "AA-" by Fitch (if the deposits are to be held in
the account for more than 30 days), or the short-term deposit or short-term
unsecured debt obligations of which (or of such institution's parent holding
company) are rated no less than "P-1" by Moody's and, if then rated thereby,
"F-1" by Fitch (if the deposits are to be held in the account for 30 days or
less), in any event at any time funds are on deposit therein, or (ii) a
segregated trust account maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depository institution or trust company is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR Section 9.10(b), and which, in either case, has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
federal or state authority, or (iii) any other account that is acceptable to the
Rating Agencies (as evidenced by written confirmation to the Trustee from each
Rating Agency that the use of such account would not, in and of itself, result
in an Adverse Rating Event with respect to any Class of Rated Certificates).
"Environmental Insurance Policy" shall mean, with respect to
any Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the
Mortgage Loans identified on Exhibit B-1F.
"Emergency Advance" Any Servicing Advance (whether or not it
is a Servicing Advance that, pursuant hereto, the Special Servicer is required
to request the Master Servicer to make) that must be made within ten (10) days
of the Special Servicer's becoming aware that it must be made in order to avoid
any material penalty, any material harm to a Mortgaged Property or any other
material adverse consequence to the Trust Fund.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Borrower for application
toward the payment of real estate taxes, assessments, insurance premiums
(including with respect to any Environmental Insurance Policy), ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any,
of (a) the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or REO Property, net of (i) interest on any related
Advances and (ii) any related Servicing Advances, over (b) the amount needed to
pay off the Mortgage Loan or related REO Mortgage Loan in full.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
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"Fannie Mae" shall mean the Federal National Mortgage
Association or any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any successor.
"Final Distribution Date" shall mean the final Distribution
Date on which any distributions are to be made on the Certificates as
contemplated by Section 9.01.
"Final Recovery Determination" shall mean a determination made
by the Special Servicer, in its reasonable, good faith judgment, with respect to
any Mortgage Loan or REO Property (other than a Mortgage Loan that is paid in
full and other than a Mortgage Loan or REO Property, as the case may be,
repurchased by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase Agreement, or purchased by the Master Servicer, the Special Servicer or
any Controlling Class Certificateholder(s) pursuant to Section 9.01, or
otherwise acquired by the Sole Certificateholder in exchange for all the
Certificates pursuant to Section 9.01), that there has been a recovery of all
related Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and
other payments or recoveries that will ultimately be recoverable.
"Financial File" shall mean the monthly report containing the
information called for in the form attached hereto as Exhibit E-13, which report
shall be in the form of such Exhibit E-13 or such other form for the
presentation of such information as may from time to time be recommended by the
CMSA for commercial mortgage securities transactions generally.
"Fiscal Agent" shall mean a Person who is at any time
appointed by the Trustee pursuant to Section 8.13 to act as fiscal agent
hereunder.
"Fiscal Agent Agreement" shall have the meaning assigned
thereto in Section 8.13.
"Fitch" shall mean Fitch, Inc. or its successor in interest.
If neither such rating agency nor any successor remains in existence, "Fitch"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the other parties to this Agreement, and specific
ratings of Fitch Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated. References herein to "applicable
rating category" (other than such references to "highest applicable rating
category") shall, in the case of Fitch, be deemed to refer to such applicable
rating category of Fitch, without regard to any plus or minus or other
comparable rating qualification.
"Freddie Mac" shall mean the Federal Home Loan Mortgage
Corporation or any successor.
"Gain on Sale Reserve Fund" shall mean the segregated account
created and maintained by the Certificate Administrator on behalf of the Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders, which shall be
entitled "Wells Fargo Bank Minnesota, N.A., [or the name of any successor
Trustee], as Trustee, in trust for the registered holders of Salomon Brothers
Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-C2, Gain on Sale Reserve Fund".
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"Grantor Trust" shall mean a grantor trust as defined under
Subpart E of Part 1 of Subchapter J of the Code.
"Grantor Trust Pool" shall mean either of Grantor Trust R or
Grantor Trust Y.
"Grantor Trust R" shall mean the Grantor Trust designated as
such in Section 2.14(b).
"Grantor Trust Y" shall mean the Grantor Trust designated as
such in Section 2.14(a).
"Ground Lease" shall mean the ground lease pursuant to which
any Borrower holds a leasehold interest in the related Mortgaged Property.
"Hazardous Materials" shall mean any dangerous, toxic or
hazardous pollutants, chemicals, wastes, or substances, including those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Historical Liquidation Report" shall mean a report setting
forth, among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report, (i) the aggregate amount
of Net Liquidation Proceeds received during the Collection Period ending on such
Determination Date and historically, and (ii) the amount of Realized Losses
occurring during the Collection Period ending on such Determination Date and
historically, set forth on a Mortgage Loan-by-Mortgage Loan and REO Mortgage
Loan-by-REO Mortgage Loan basis, which report shall be substantially in the form
of, and include such additional information in respect of each Mortgage Loan and
REO Mortgage Loan as to which a Final Recovery Determination has been made as
set forth on, Exhibit E-6 attached hereto.
"Historical Loan Modification Report" shall mean a report
setting forth, among other things, those Mortgage Loans which, as of the close
of business on the Determination Date immediately preceding the preparation of
such report, have been modified pursuant to this Agreement (i) during the
Collection Period ending on such Determination Date and (ii) since the Cut-off
Date, with a description of the original and the revised terms thereof, which
report shall be substantially in the form of, and include such additional
information in respect of each such Mortgage Loan as set forth on, Exhibit E-5
attached hereto.
"Independent" shall mean, when used with respect to any
specified Person, any such Person who (i) is in fact independent of the
Depositor, each Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Tax Administrator, the Certificate Administrator, the Trustee, any Fiscal
Agent, the Controlling Class Representative and any and all Affiliates thereof,
(ii) does not have any direct financial interest in or any material indirect
financial interest in any of the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Tax Administrator, the Certificate
Administrator, the Trustee, any Fiscal Agent, the Controlling Class
Representative or any Affiliate thereof, and (iii) is not connected with the
Depositor, any Mortgage
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Loan Seller, the Master Servicer, the Special Servicer, the Tax Administrator,
the Certificate Administrator, the Trustee, any Fiscal Agent, the Controlling
Class Representative or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Tax Administrator, the Certificate Administrator, the Trustee, any Fiscal
Agent, the Controlling Class Representative or any Affiliate thereof merely
because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, such Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Tax Administrator, the Certificate
Administrator, the Trustee, such Fiscal Agent, the Controlling Class
Representative or any Affiliate thereof, as the case may be.
"Independent Contractor" shall mean any Person that would be
an "independent contractor" with respect to REMIC I (or, solely for purposes of
a Mortgage Loan in a Loan REMIC, the related Loan REMIC) within the meaning of
Section 856(d)(3) of the Code if REMIC I (or the related Loan REMIC) were a real
estate investment trust (except that the ownership test set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates, or such other interest in
any Class of Certificates as is set forth in an Opinion of Counsel, which shall
be at no expense to the Trustee, the Certificate Administrator, the Tax
Administrator or the Trust, delivered to the Trustee, the Certificate
Administrator and the Tax Administrator), so long as the Trust does not receive
or derive any income from such Person and provided that the relationship between
such Person and the Trust is at arm's length, all within the meaning of Treasury
regulation Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee, the Certificate Administrator and the Tax Administrator of an Opinion
of Counsel, which shall be at no expense to the Trustee, the Certificate
Administrator, the Tax Administrator or the Trust, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Pool Balance" shall mean the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
"Institutional Accredited Investor" shall mean an "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the Securities Act or any entity in which all of the equity owners come
within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage
Loan or REO Property, any hazard insurance policy, flood insurance policy, title
insurance policy, earthquake insurance policy, Environmental Insurance Policy,
business interruption insurance policy or other insurance policy that is
maintained from time to time in respect of such Mortgage Loan (or the related
Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds" shall mean proceeds paid under any
Insurance Policy, to the extent such proceeds are not applied to the restoration
of the related Mortgaged Property or REO Property or released to the related
Borrower, in any case, in accordance with the Servicing Standard.
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"Insured CTL Event" shall have the meaning assigned thereto in
Section 3.25.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(c).
"Interest Accrual Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any
Interest Accrual Period, have the meaning assigned thereto in Section
2.09(g);
(b) with respect to any REMIC II Regular Interest, for
any Interest Accrual Period, have the meaning assigned thereto in
Section 2.11(g); and
(c) with respect to any Class of REMIC III Regular
Interest Certificates, for any Interest Accrual Period, have the
meaning assigned thereto in Section 2.13(g).
"Interest Accrual Basis" shall mean the basis on which
interest accrues in respect of any Mortgage Loan, any Loan REMIC Regular
Interest, any REMIC I Regular Interest, any REMIC II Regular Interest or any
Class of REMIC III Regular Interest Certificates, consisting of one of the
following: (i) a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period" shall mean, with respect to any
REMIC I Regular Interest, any REMIC II Regular Interest or any Class of REMIC
III Regular Interest Certificates, for any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs.
"Interest Only Certificates" shall have the meaning assigned
thereto in Section 2.08(g).
"Interest Reserve Account" shall mean the segregated account
created and maintained by the Certificate Administrator on behalf of the Trustee
pursuant to Section 3.04(c) in trust for the Certificateholders, which shall be
entitled "Wells Fargo Bank Minnesota, N.A., [or the name of any successor
Trustee], as Trustee, in trust for the registered holders of Salomon Brothers
Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-C2, Interest Reserve Account".
"Interest Reserve Amount" shall mean, with respect to each
Interest Reserve Loan and each Distribution Date that occurs during February
2001 and during February of each year thereafter and during January 2001 and
during January of each year thereafter that is not a leap year, an amount equal
to one-day's interest at the related Net Mortgage Rate on the Stated Principal
Balance of such Interest Reserve Loan immediately prior to such Distribution
Date (and, accordingly, prior to any reduction in such Stated Principal Balance
on such Distribution Date), to the extent that a Monthly Payment is received in
respect of such Interest Reserve Loan for the related Due Date in the same month
as such Distribution Date on or before the related Master Servicer Remittance
Date or a P&I Advance is made in respect of such Interest Reserve Loan for such
Due Date on the related P&I Advance Date.
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"Interest Reserve Loan" shall mean any Actual/360 Mortgage
Loan (or successor REO Mortgage Loan).
"Interested Person" shall mean any party hereto, any Mortgage
Loan Seller, any Certificateholder, or any Affiliate of any such Person.
"Investment Account" shall have the meaning assigned thereto
in Section 3.06(a).
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended.
"IRS" shall mean the Internal Revenue Service or any
successor.
"Issue Price" shall mean, with respect to each Class of
Certificates, the "issue price" as defined in the Code and Treasury regulations
promulgated thereunder.
"Late Collections" shall mean: (a) with respect to any
Mortgage Loan, all amounts received thereon during any Collection Period,
whether as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise, which represent late collections of the principal and/or
interest portions of a Monthly Payment (other than a Balloon Payment) or an
Assumed Monthly Payment in respect of such Mortgage Loan due or deemed due on a
Due Date in a previous Collection Period, or on a Due Date coinciding with or
preceding the Cut-off Date, and not previously recovered; and (b) with respect
to any REO Mortgage Loan, all amounts received in connection with the related
REO Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of the predecessor Mortgage Loan or late collections of the principal
and/or interest portions of an Assumed Monthly Payment in respect of such REO
Mortgage Loan due or deemed due on a Due Date in a previous Collection Period
and not previously recovered. The Term "Late Collections" shall specifically
exclude any Default Charges.
"Latest Possible Maturity Date" shall mean, with respect to
any Loan REMIC Regular Interest, any REMIC I Regular Interest, REMIC II Regular
Interest or Class of Principal Balance Certificates, the date designated as the
"latest possible maturity date" thereof solely for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii).
"Lease Enhancement Policy" shall mean an insurance policy that
provides, subject to customary exclusions, that in the event of a permitted
termination or abatement of a Credit Tenant Lease by the related Credit Tenant
as a result of a casualty or condemnation, the insurer under such policy will be
required to make a specified insurance payment.
"Letter of Credit" shall mean, with respect to any Mortgage
Loan, any third-party letter of credit delivered by or at the direction of the
Borrower pursuant to the terms of such Mortgage Loan in lieu of the
establishment of, or deposit otherwise required to be made into, a Reserve Fund.
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"Liquidation Event" shall mean: (a) with respect to any
Mortgage Loan, any of the following events -- (i) such Mortgage Loan is paid in
full, (ii) a Final Recovery Determination is made with respect to such Mortgage
Loan, (iii) such Mortgage Loan is repurchased by a Mortgage Loan Seller pursuant
to the related Mortgage Loan Purchase Agreement, (iv) such Mortgage Loan is
purchased by the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 3.18 or Section 9.01, or (v) such
Mortgage Loan is acquired by the Sole Certificateholder in exchange for all the
Certificates pursuant to Section 9.01; and (b) with respect to any REO Property
(and the related REO Mortgage Loan), any of the following events -- (i) a Final
Recovery Determination is made with respect to such REO Property, (ii) such REO
Property is purchased by the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder(s) pursuant to Section 3.18 or Section 9.01,
or (iii) such REO Property is acquired by the Sole Certificateholder in exchange
for all the Certificates pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable
and necessary "out-of-pocket" costs and expenses due and owing (but not
otherwise covered by Servicing Advances) in connection with the liquidation of
any Specially Serviced Mortgage Loan or REO Property pursuant to Section 3.09 or
3.18 (including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property (other than any Specially Serviced
Mortgage Loan or REO Property that is repurchased by a Mortgage Loan Seller
pursuant to the related Mortgage Loan Purchase Agreement, that is purchased by
the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 3.18 or Section 9.01 or that is
acquired by the Sole Certificateholder in exchange for all the Certificates
pursuant to Section 9.01), the fee designated as such and payable to the Special
Servicer pursuant to the third paragraph of Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan or REO Property as to which a Liquidation Fee
is payable, 1.00%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) received by the
Master Servicer or the Special Servicer in connection with: (i) the full,
discounted or partial liquidation of a Mortgaged Property or other collateral
constituting security for a defaulted Mortgage Loan, through trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Borrower in accordance with applicable
law and/or the terms and conditions of the related Mortgage Note and Mortgage;
(ii) the realization upon any deficiency judgment obtained against a Borrower;
(iii) the purchase of a Defaulted Mortgage Loan by any Controlling Class
Certificateholder(s) pursuant to Section 3.18(b) or by the Master Servicer or
the Special Servicer pursuant to Section 3.18(c) or any other sale thereof
pursuant to Section 3.18(d); (iv) the repurchase of a Mortgage Loan by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement;
(v) the purchase of a Mortgage Loan or REO Property by the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01; or (vi) the acquisition of any Mortgage Loan or REO Property by
the Sole Certificateholder in exchange for all the Certificates pursuant to
Section 9.01.
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"Loan Periodic Update File" shall mean the monthly report
containing the information called for in the form attached hereto as Exhibit
E-2A, which report shall be in the form of such Exhibit E-2A or such other form
for the presentation of such information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
"Loan REMIC" shall mean, with respect to each Mortgage Loan
listed on Exhibit B-1E, the segregated pool of assets consisting primarily of
such Mortgage Loan, any related REO Property, and any and all payments under and
the proceeds of such Mortgage Loan and/or related REO Property received after
the date of the related Loan REMIC Declaration.
"Loan REMIC Declaration" shall mean, with respect to each
Mortgage Loan identified on Exhibits B-1E, the REMIC declaration made as of a
date prior to the Closing Date.
"Loan REMIC Interest" shall mean any Loan REMIC Regular
Interest or Loan REMIC Residual Interest.
"Loan REMIC Regular Interest" shall mean the uncertificated
"regular interest", within the meaning of Section 860G(a)(1) of the Code, in
each Loan REMIC. The principal balance of each Loan REMIC Regular Interest shall
equal the principal balance of the related Mortgage Loan (or, if applicable, the
deemed principal balance of any successor REO Mortgage Loan) outstanding from
time to time. Payments and other collections of amounts received on or in
respect of each of the Mortgage Loans listed on Exhibit B-1E (or any related REO
Property) and allocable (in accordance with Section 1.03, to interest (adjusted
to the related Loan REMIC Remittance Rate) on, principal of and/or Prepayment
Premiums with respect to such Mortgage Loan (or any successor REO Mortgage Loan)
shall be deemed paid on the related Loan REMIC Regular Interest to REMIC I at
the time such amounts are so received. The terms of each Loan REMIC Regular
Interest are otherwise set forth in the related Loan REMIC Declaration.
"Loan REMIC Remittance Rate" shall mean the per annum rate at
which interest accrues in respect of a Loan REMIC Regular Interest, as set forth
in or otherwise calculated in accordance with the related Loan REMIC
Declaration.
"Loan REMIC Residual Interest" shall mean the sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in each Loan REMIC.
"Loan Set-Up File" shall mean the monthly report containing
the information called for in the form attached hereto as Exhibit E-2C, which
report shall be in the form of such Exhibit E-2C or such other form for the
presentation of such information as may from time to time be recommended by the
CMSA for commercial mortgage securities transactions generally.
"Loan-to-Value Ratio" shall mean, with respect to any Mortgage
Loan, as of any date of determination, and without regard to the
cross-collateralization in the case of any Cross-Collateralized Mortgage Loan, a
fraction, expressed as a percentage, the numerator of which is the then current
principal amount of such Mortgage Loan, and the denominator of which is the
Appraised Value of the related Mortgaged Property.
"Loss Reimbursement Amount" shall mean:
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(a) with respect to any REMIC I Regular Interest for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) REMIC II with
respect to such REMIC I Regular Interest on all prior Distribution
Dates, if any;
(b) with respect to any REMIC II Regular Interest for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) REMIC III with
respect to such REMIC II Regular Interest on all prior Distribution
Dates, if any; and
(c) with respect to any Class of Principal Balance
Certificates for any Distribution Date, the total amount of all
Unfunded Principal Balance Reductions, if any, incurred by (but not
reimbursed to) the Holders of such Class of Certificates on all prior
Distribution Dates, if any.
"Maintenance Right" shall mean, with respect to any Credit
Tenant Lease, any termination and abatement rights of the related Credit Tenant
arising from a Borrower's default under such Credit Tenant Lease in performing
obligations such as required maintenance, repairs and replacements for the
related Mortgaged Property.
"Majority Controlling Class Certificateholder" shall mean, as
of any date of determination, any single Holder or group of Holders of
Certificates representing a majority of the Voting Rights allocated to the Class
or Classes of Principal Balance Certificates that constitute(s) the Controlling
Class as of such date of determination.
"Master Servicer" shall mean ORECM, in its capacity as master
servicer hereunder, or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount" shall mean, with respect
to any Master Servicer Remittance Date, an amount equal to (a) all amounts on
deposit in the Collection Account as of the commencement of business on such
Master Servicer Remittance Date, net of (b) any portion of the amounts described
in clause (a) of this definition that represents one or more of the following:
(i) collected Monthly Payments that are due on a Due Date following the end of
the related Collection Period, (ii) any payments of principal (including
Principal Prepayments) and interest (including Post-ARD Additional Interest),
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds received
after the end of the related Collection Period, (iii) any Prepayment Premiums
received after the end of the related Collection Period, (iv) any amounts
payable or reimbursable to any Person from the Collection Account pursuant to
clauses (ii) through (xix) of Section 3.05(a), and (v) any amounts deposited in
the Collection Account in error; provided that the Master Servicer Remittance
Amount for the Master Servicer Remittance Date that occurs in the same calendar
month as the anticipated Final Distribution Date shall be calculated without
regard to clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date" shall mean the Business Day
preceding each Distribution Date.
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"Master Servicing Fee" shall mean, with respect to each
Mortgage Loan and REO Mortgage Loan, the fee designated as such and payable to
the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan and REO Mortgage Loan, the rate per annum specified as such on the
Mortgage Loan Schedule.
"Material Breach" shall have the meaning assigned thereto in
Section 2.03(a).
"Material Document Defect" shall have the meaning assigned
thereto in Section 2.03(a).
"Memorandum" shall mean the final Private Placement
Memorandum, dated August 15, 2000, relating to certain Classes of the
Non-Registered Certificates delivered by the Depositor to the Underwriters as of
the Closing Date.
"Modified Mortgage Loan" shall mean any Mortgage Loan as to
which any Servicing Transfer Event has occurred and which has been modified by
the Special Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of
principal or interest due thereon (other than, or in addition to,
bringing Monthly Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related loan
documents, results in a release of the lien of the Mortgage on any
material portion of the related Mortgaged Property without a
corresponding Principal Prepayment in an amount, or the delivery of
substitute real property collateral with a fair market value (as is),
that is not less than the fair market value (as is) of the property to
be released, as determined by an Appraisal delivered to the Special
Servicer (at the expense of the related Borrower and upon which the
Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage
Loan or reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment" shall mean, with respect to any Mortgage
Loan as of any Due Date, the scheduled monthly payment (or, in the case of an
ARD Loan after its Anticipated Repayment Date, the minimum required monthly
payment) of principal and/or interest on such Mortgage Loan, including any
Balloon Payment, that is actually payable by the related Borrower from time to
time under the terms of the related Mortgage Note (as such terms may be changed
or modified in connection with a bankruptcy, insolvency or similar proceeding
involving the related Borrower or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20).
"Moody's" shall mean Moody's Investors Service, Inc. or its
successor in interest. If neither such rating agency nor any successor remains
in existence, "Moody's" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person
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designated by the Depositor, notice of which designation shall be given to the
other parties hereto, and specific ratings of Moody's Investors Service, Inc.
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated. References herein to "applicable rating category" (other
than such references to "highest applicable rating category") shall, in the case
of Moody's, be deemed to refer to such applicable rating category of Moody's,
without regard to any plus or minus or other comparable rating qualification.
"Mortgage" shall mean, with respect to any Mortgage Loan,
separately and collectively, as the context may require, each mortgage, deed of
trust, deed to secure debt or similar document that secures the related Mortgage
Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean, with respect to any Mortgage Loan,
subject to Sections 1.04 and 2.01, collectively the following documents:
(i) the original executed Mortgage Note, endorsed (either
on the face thereof or pursuant to a separate
allonge) "Pay to the order of Wells Fargo Bank
Minnesota, N.A., as trustee for the registered
holders of Salomon Brothers Mortgage Securities VII,
Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-C2, without recourse", and further
showing a complete, unbroken chain of endorsement
from the originator (if such originator is other than
the related Mortgage Loan Seller); or alternatively,
if the original executed Mortgage Note has been lost,
a lost note affidavit and indemnity with a copy of
such Mortgage Note;
(ii) an original or a copy of the Mortgage and of any
intervening assignments thereof that precede the
assignment referred to in clause (iv) of this
definition, in each case (unless the particular item
has not been returned from the applicable recording
office) with evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the
Mortgage) and of any intervening assignments thereof
that precede the assignment referred to in clause (v)
of this definition, in each case (unless the
particular item has not been returned from the
applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in
favor of Wells Fargo, as trustee for the registered
holders of Salomon Brothers Mortgage Securities VII,
Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-C2, in recordable form;
(v) an original executed assignment of any related
Assignment of Leases (if such item is a document
separate from the Mortgage), in favor of Wells Fargo,
as trustee for the registered holders of Salomon
Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C2,
in recordable form;
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(vi) originals or copies of any written assumption,
modification, written assurance and substitution
agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been
modified or the Mortgage Loan has been assumed, with
evidence of recording indicated thereon if the
instrument being modified or assumed is a recordable
document;
(vii) the original or a copy of the policy of lender's
title insurance or, if such policy has not yet been
issued, a "marked-up" pro forma title policy or
commitment for title insurance "marked-up" at the
closing of such Mortgage Loan;
(viii) copies of any previously filed UCC Financing
Statements in favor of the originator of such
Mortgage Loan or in favor of any assignee prior to
the Trustee (but only to the extent the related
Mortgage Loan Seller had possession of such UCC
Financing Statements prior to the Closing Date) and,
if there is an effective UCC Financing Statement in
favor of the related Mortgage Loan Seller on record
with the applicable public office for UCC Financing
Statements, an original UCC-2 or UCC-3, as
appropriate, in favor of Wells Fargo, as trustee for
the registered holders of Salomon Brothers Mortgage
Securities VII, Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-C2;
(ix) any environmental indemnity agreement and the
original or a copy of any Environmental Insurance
Policy relating solely to such Mortgage Loan;
(x) any power of attorney, guaranty, property management
agreement, Ground Lease, Ground Lease estoppels,
intercreditor agreement, cash management agreement
and lock-box agreement, relating to such Mortgage
Loan;
(xi) any original documents (including any security
agreements and any Letters of Credit and related
letter of credit reimbursement agreements) relating
to, evidencing or constituting Additional Collateral
and, if applicable, the originals or copies of any
intervening assignments thereof; and in the case of
any such Letter of Credit, in a form that would
permit the Master Servicer or Special Servicer, as
the case may be, on behalf of the Certificateholders,
to draw upon such Letter of Credit;
(xii) if such Mortgage Loan is a CTL Loan, an original or
copy of the Credit Tenant Lease and any Lease
Enhancement Policy; and
(xiii) in the case of any Mortgage Loan held in a Loan
REMIC, the original or copy of the related Loan REMIC
Declaration.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received.
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"Mortgage Loan" shall mean each of the mortgage loans listed
on the Mortgage Loan Schedule that are from time to time held in the Trust Fund.
As used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage File. As
used herein, the term "Mortgage Loan" includes a mortgage loan that has been
wholly or partially defeased.
"Mortgage Loan Purchase Agreements" shall mean, collectively,
the SBRC Mortgage Loan Purchase Agreement, the PWRES Mortgage Loan Purchase
Agreement, the AMCC Mortgage Loan Purchase Agreement and the ORECM Mortgage Loan
Purchase Agreement.
"Mortgage Loan Schedule" shall mean, collectively, the four
lists of Mortgage Loans attached hereto as Exhibit B-1A, Exhibit B-1B, Exhibit
B-1C and Exhibit B-1D, respectively, as such lists may be amended from time to
time in accordance with this Agreement. Such lists shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip
code) of the related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off
Date Principal Balance;
(iv) the amount of the Monthly Payment due on the first
Due Date following the Closing Date;
(v) the Mortgage Rate as of the Cut-off Date;
(vi) the (A) original and remaining term to stated
maturity and (B) Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the original
and remaining amortization term and the Balloon
Payment;
(viii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, the other Mortgage Loans
contained in the related Cross-Collateralized Group;
(ix) whether the Mortgage Loan is an ARD Loan and, if so,
the Anticipated Repayment Date;
(x) whether such Mortgage Loan provides for defeasance
and, if so, the period during which defeasance may
occur;
(xi) whether the Mortgage Loan is secured by a fee simple
interest in the Mortgaged Property; by the Borrower's
leasehold interest, and a fee simple interest, in the
Mortgaged Property; or solely by a leasehold interest
in the Mortgaged Property;
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(xii) whether the Mortgage Loan is a CTL Loan and, if so,
the related Credit Tenant, any guarantor of that
tenant's obligations under the related Credit Tenant
Lease and the Rated Party;
(xiii) if the Mortgage Loan is a CTL Loan, whether there is
a Lease Enhancement Policy in effect;
(xiv) the name of the originator of the Mortgage Loan;
(xv) the Interest Accrual Basis;
(xvi) the Master Servicing Fee Rate; and
(xvii) whether the Mortgage Loan provides, at any time
during its term, for a Prepayment Premium calculated
based on a yield maintenance formula in connection
with voluntary Principal Prepayments and, if so,
whether that formula constitutes a "Present Value
Type I" or a "Present Value Type II", within the
meaning of the Prospectus Supplement.
"Mortgage Loan Sellers" shall mean, collectively, SBRC, PWRES,
AMCC and ORECM.
"Mortgage Note" shall mean the original executed note
evidencing the indebtedness of a Borrower under a Mortgage Loan, together with
any rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, collectively, as of any particular date of
determination.
"Mortgage Rate" shall mean, with respect to any Mortgage Loan
(and any successor REO Mortgage Loan), the annualized rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in accordance with Section 3.20 or in connection with
a bankruptcy, insolvency or similar proceeding involving the related Borrower.
In the case of each of the ARD Loans, the related Mortgage Rate will be subject
to increase in accordance with the related Mortgage Note if the particular
Mortgage Loan is not paid in full by its Anticipated Repayment Date.
"Mortgaged Property" shall mean, individually and
collectively, as the context may require, each real property (together with all
improvements and fixtures thereon) subject to the lien of a Mortgage and
constituting collateral for a Mortgage Loan. With respect to any
Cross-Collateralized Mortgage Loan, if and when the context may require,
"Mortgaged Property" shall mean, collectively, all the mortgaged real properties
(together with all improvements and fixtures thereon) securing the relevant
Cross-Collateralized Group.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date, the amount, if any, by which (a) the aggregate
of all Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans
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during the related Collection Period, exceeds (b) the aggregate amount of the
Compensating Interest Payment remitted by the Master Servicer pursuant to
Section 3.19(a) on the Master Servicer Remittance Date related to such
Distribution Date.
"Net Assumption Fee" shall mean, with respect to any Mortgage
Loan, any Assumption Fee collected thereon, net of any expenses payable
therefrom in accordance with Section 3.08.
"Net Default Charges" shall mean, with respect to any Mortgage
Loan or REO Mortgage Loan, any Default Charges actually collected thereon
(determined in accordance with the allocation of amounts collected as specified
in Section 1.03), to the extent such Default Charges are not allocable to pay
Advance Interest accrued on Advances made in respect of any Mortgage Loan, REO
Mortgage Loan or REO Property, as the case may be, in accordance with this
Agreement.
"Net Investment Earnings" shall mean, with respect to any
Investment Account for any Collection Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Collection
Period in connection with the investment of funds held in such Investment
Account for the benefit of the Master Servicer or the Special Servicer, as
applicable, exceeds the aggregate of all losses, if any, incurred during such
Collection Period in connection with the investment of such funds for the
benefit of the Master Servicer or the Special Servicer, as applicable, in
accordance with Section 3.06 (other than losses of what would otherwise have
constituted interest or other income earned on such funds).
"Net Investment Loss" shall mean, with respect to any
Investment Account for any Collection Period, the amount by which the aggregate
of all losses, if any, incurred during such Collection Period in connection with
the investment of funds held in such Investment Account for the benefit of the
Master Servicer or the Special Servicer, as applicable, in accordance with
Section 3.06 (other than losses of what would otherwise have constituted
interest or other income earned on such funds), exceeds the aggregate of all
interest and other income realized during such Collection Period in connection
with the investment of such funds for the benefit of the Master Servicer or the
Special Servicer, as applicable; provided that, in the case of any Investment
Account and any particular investment of funds in such Investment Account, Net
Investment Loss shall not include any loss with respect to such investment which
is incurred solely as a result of the insolvency of the federal or state
chartered depository institution or trust company that holds such Investment
Account, so long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made.
"Net Liquidation Proceeds" shall mean the excess, if any, of
all Liquidation Proceeds received with respect to any Specially Serviced
Mortgage Loan or REO Property, over the amount of all Liquidation Expenses
incurred with respect thereto.
"Net Mortgage Rate" shall mean, with respect to any Mortgage
Loan (or successor REO Mortgage Loan), a rate per annum equal to the related
Mortgage Rate, minus the related Administrative Fee Rate.
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"Net Operating Income" shall mean, with respect to any
Mortgaged Property, the net operating income derived from such Mortgaged
Property for any specified period, calculated in accordance with Exhibit K.
"New Lease" shall mean any lease of an REO Property entered
into at the direction of the Special Servicer, including any lease renewed,
modified or extended on behalf of the Certificateholders, or allowed pursuant to
the terms of such lease.
"NOI Adjustment Worksheet" shall mean a report or related data
fields prepared by the Special Servicer with respect to Specially Serviced
Mortgaged Loans and REO Mortgage Loans, and by the Master Servicer with respect
to all other Mortgage Loans, substantially in the form and containing the
information described in Exhibit E-7 attached hereto, presenting the
computations made in accordance with the methodology described in such Exhibit
to "normalize" the full year net operating income and debt service coverage
numbers used in the other reports required by this Agreement.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean as evidenced by the
Officer's Certificate and supporting documentation contemplated by Section
4.03(c), any P&I Advance previously made or to be made in respect of any
Mortgage Loan or any REO Mortgage Loan that, as determined by the Master
Servicer or, if applicable, the Trustee or any Fiscal Agent, in its reasonable,
good faith judgment, will not be ultimately recoverable from late payments,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other
recovery on or in respect of such Mortgage Loan.
"Nonrecoverable Servicing Advance" shall mean as evidenced by
the Officer's Certificate and supporting documentation contemplated by Section
3.11(h), any Servicing Advance previously made or to be made in respect of a
Mortgage Loan or REO Property that, as determined by the Master Servicer, the
Special Servicer or, if applicable, the Trustee or any Fiscal Agent, in its
reasonable, good faith judgment, will not be ultimately recoverable from late
payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or any
other recovery on or in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate" shall mean any Certificate that
has not been registered under the Securities Act. As of the Closing Date, the
Class X, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Y
and Class R Certificates will constitute Non-Registered Certificates.
"Non-United States Person" shall mean any Person other than a
United States Person.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer or the Special Servicer or a
Responsible Officer of the Trustee or any Fiscal Agent, as the case may be.
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"Operating Statement Analysis Report" shall have the meaning
assigned thereto in Section 3.12(b).
"Opinion of Counsel" shall mean a written opinion of counsel
(which counsel, in the case of any such opinion of counsel relating to the
taxation of the Trust Fund or any portion thereof or the status of any REMIC
Pool as a REMIC or the status of either Grantor Trust Pool as a Grantor Trust
for taxation purposes, shall be Independent of the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Certificate Administrator or the Tax Administrator, as applicable but
which may act as counsel to such Person) acceptable to and delivered to the
addressee(s) thereof.
"ORECM" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"ORECM Mortgage Loan Purchase Agreement" shall have the
meaning assigned thereto in the Preliminary Statement to this Agreement.
"ORECM Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
"OTS" shall mean the Office of Thrift Supervision or any
successor thereto.
"Ownership Interest" shall mean, in the case of any
Certificate, any ownership or security interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
"P&I Advance" shall mean, with respect to any Mortgage Loan or
REO Mortgage Loan, any advance made by the Master Servicer, the Trustee or any
Fiscal Agent pursuant to Section 4.03.
"P&I Advance Date" shall mean the Business Day preceding each
Distribution Date.
"Paid After Determination Date Report" shall mean that report
referenced in Section 3.12(d).
"Pass-Through Rate" shall mean the per annum rate at which
interest accrues in respect of any Class of REMIC III Regular Interest
Certificates during any Interest Accrual Period, as set forth in or otherwise
calculated in accordance with Section 2.13(f).
"Percentage Interest" shall mean:
(a) with respect to any REMIC III Regular Interest
Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the
case may be, of such Certificate as of the Closing Date, as specified
on the face thereof, and the denominator of which is the Class
Principal Balance or Class Notional Amount, as the case may be, of the
relevant Class as of the Closing Date; and
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(b) with respect to a Class Y Certificate or Class R
Certificate, the percentage interest in distributions to be made with
respect to the relevant Class, as stated on the face of such
Certificate.
"Performing Mortgage Loan" shall mean any Corrected Mortgage
Loan and any Mortgage Loan as to which a Servicing Transfer Event has not
occurred.
"Permitted Investments" shall mean any one or more of the
following obligations or securities:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided that each such
obligation is backed by the full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause
(i), provided that the short-term unsecured debt obligations of the
party agreeing to repurchase such obligations are at the time of
investment rated in the highest short-term debt rating category of each
of Moody's and Fitch (or, in the case of either Rating Agency, have
such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates, as confirmed in writing to
the Trustee by such Rating Agency);
(iii) federal funds, uncertificated certificates of deposit,
time deposits and bankers' acceptances of any bank or trust company
organized under the laws of the United States or any state thereof,
provided that the short-term unsecured debt obligations of such bank or
trust company are at the time of investment rated in the highest
short-term debt rating category of each of Moody's and Fitch (or, in
the case of either Rating Agency, have such lower rating as will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates, as confirmed in writing to the Trustee by such Rating
Agency);
(iv) commercial paper of any corporation incorporated under
the laws of the United States or any state thereof (or of any
corporation not so incorporated, provided that the commercial paper is
United States Dollar denominated and amounts payable thereunder are not
subject to any withholding imposed by any non-United States
jurisdiction), provided that such commercial paper is rated in the
highest short-term debt rating category of each of Moody's and Fitch
(or, in the case of either Rating Agency, has such lower rating as will
not result in an Adverse Rating Event with respect to any Class of
Rated Certificates, as confirmed in writing to the Trustee by such
Rating Agency);
(v) units of money market funds which maintain a constant net
asset value, provided that such units of money market funds are rated
in the highest applicable rating category of each of Moody's and Fitch
(or, in the case of either Rating Agency, have such lower rating as
will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates, as confirmed in writing to the Trustee by such
Rating Agency); or
(vi) any other obligation or security that is acceptable to
the Rating Agencies and will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to
the Trustee by each Rating Agency);
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provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity, (C) no investment
described hereunder may be sold prior to stated maturity if such sale would
result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have a "r" highlighter or other comparable qualifier attached to
its rating; provided, further, that each investment described hereunder must
have (X) a predetermined fixed amount of principal due at maturity (that cannot
vary or change), (Y) an original maturity of not more than 365 days and a
remaining maturity of not more than 30 days and (Z) except in the case of a
Permitted Investment described in clause (v) above, a fixed interest rate or an
interest rate that is tied to a single interest rate index plus a single fixed
spread; and provided, further, that each investment described hereunder must be
a "cash flow investment" (within the meaning of the REMIC Provisions).
"Permitted Transferee" shall mean any Transferee of a Class R
Certificate other than either a Disqualified Organization or a Non-United States
Person; provided, however, that if a Transferee is classified as a partnership
under the Code, such Transferee shall only be a Permitted Transferee if all of
its beneficial owners are United States Persons and the governing documents of
the Transferee prohibit a transfer of any interest in the Transferee to any
Non-United States Person.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Phase I Environmental Assessment" shall mean a "Phase I
assessment" as described in and meeting the criteria of Chapter 5 of Part II of
the Fannie Mae Multifamily Guide, as amended from time to time.
"Plan" shall have the meaning assigned thereto in Section
5.02(c).
"Plurality Class R Certificateholder" shall mean, as to any
taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the Class R Certificates.
"Post-ARD Additional Interest" shall mean, with respect to any
ARD Loan after its Anticipated Repayment Date, all interest accrued on the
principal balance of such ARD Loan at the Post-ARD Additional Interest Rate (the
payment of which interest shall, under the terms of such Mortgage Loan, be
deferred until the principal balance of such Mortgage Loan has been paid in
full), together with all interest, if any, accrued at the related Mortgage Rate
on such deferred interest.
"Post-ARD Additional Interest Rate" shall mean, with respect
to any ARD Loan after its Anticipated Repayment Date, the incremental increase
in the Mortgage Rate for such Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
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"Prepayment Assumption" shall mean, for purposes of
determining the accrual of original issue discount, market discount and premium,
if any, on the Mortgage Loans, the Loan REMIC Regular Interests, the REMIC I
Regular Interests, the REMIC II Regular Interests and the Certificates for
federal income tax purposes, the assumptions that each ARD Loan is paid in its
entirety on its Anticipated Prepayment Date and that no Mortgage Loan is
otherwise prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part made
after its Due Date in any Collection Period, any payment of interest (net of
related Master Servicing Fees and, further, net of any portion of such interest
that represents Default Interest or Post-ARD Additional Interest) actually
collected from the related Borrower and intended to cover the period from and
after such Due Date to, but not including, the date of prepayment (exclusive,
however, of any related Prepayment Premium that may have been collected).
"Prepayment Interest Shortfall" shall mean, with respect to
any Mortgage Loan that was subject to a Principal Prepayment in full or in part
made prior to its Due Date in any Collection Period, the amount of interest, to
the extent not collected from the related Borrower (without regard to any
Prepayment Premium that may have been collected), that would have accrued on the
amount of such Principal Prepayment during the period from the date of
prepayment to, but not including, such Due Date (less the amount of related
Master Servicing Fees and, if applicable, exclusive of Default Interest and
Post-ARD Additional Interest).
"Prepayment Premium" shall mean, with respect to any Mortgage
Loan, any premium, penalty or fee paid or payable, as the context requires, by a
Borrower in connection with a Principal Prepayment on, or other early collection
of principal of, a Mortgage Loan or any successor REO Mortgage Loan, including
any such premium, penalty or fee that is calculated as a percentage of the
principal amount being prepaid or pursuant to a yield maintenance formula.
"Primary Servicing Office" shall mean the office of the Master
Servicer or the Special Servicer, as the context may require, that is primarily
responsible for such party's servicing obligations hereunder.
"Prime Rate" shall mean the "prime rate" published in the
"Money Rates" section of The Wall Street Journal, as such "prime rate" may
change from time to time. If The Wall Street Journal ceases to publish the
"prime rate", then the Trustee, in its sole discretion, shall select an
equivalent publication that publishes such "prime rate"; and if such "prime
rate" is no longer generally published or is limited, regulated or administered
by a governmental or quasi- governmental body, then the Trustee shall select a
comparable interest rate index. In either case, such selection shall be made by
the Trustee in its sole discretion and the Trustee shall notify the Master
Servicer and the Special Servicer in writing of its selection.
"Principal Balance Certificate" shall mean any of the
Certificates designated as such in Section 2.08(e).
"Principal Distribution Amount" shall mean:
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(a) with respect to any REMIC I Regular Interest for any
Distribution Date, an amount equal to that portion, if any, of the
Total Principal Distribution Amount for such Distribution Date that is
attributable to each and every Mortgage Loan and/or REO Mortgage Loan,
as the case may be, that relates to such REMIC I Regular Interest; and
(b) with respect to any Class of REMIC III Regular Interest
Certificates (and, accordingly, with respect to that Class's
Corresponding REMIC II Regular Interest) for any Distribution Date, an
amount equal to that portion, if any, of the Total Principal
Distribution Amount for such Distribution Date that is allocable to
such Class of Certificates as provided below in this definition.
For purposes of the foregoing, for so long as the Class A Certificates remain
outstanding, the Total Principal Distribution Amount for each Distribution Date
shall be allocated to the Class A Certificates, up to the lesser of (i) the
aggregate of the Class Principal Balances of the Class A Certificates
outstanding immediately prior to such Distribution Date and (ii) the entire such
Total Principal Distribution Amount. The portion of the Total Principal
Distribution Amount for each Distribution Date that is so allocable to the Class
A Certificates shall, in turn, be allocated as between the Class A-1
Certificates and the Class A-2 Certificates as follows: (i) prior to the Senior
Principal Distribution Cross-Over Date (or, if there is no Senior Principal
Distribution Cross-Over Date, prior to the Final Distribution Date), first, to
the Class A-1 Certificates, up to the Class Principal Balance thereof
outstanding immediately prior to the subject Distribution Date, and then, to the
Class A-2 Certificates; and (ii) on and after the Senior Principal Distribution
Cross-Over Date (and, in any event, on the Final Distribution Date), to the
Class A-1 Certificates and the Class A-2 Certificates on a pro rata basis in
accordance with the respective Class Principal Balances thereof outstanding
immediately prior to the subject Distribution Date. After the Class Principal
Balances of the Class A Certificates have been reduced to zero, the Total
Principal Distribution Amount for each Distribution Date (net of any portion
thereof that may have been allocated to the Class A Certificates in retirement
thereof pursuant to the prior two sentences) shall be allocated among the
respective Classes of the Subordinate Principal Balance Certificates,
sequentially in the following order and, in the case of each such Class of
Subordinate Principal Balance Certificates, up to the lesser of (i) the Class
Principal Balance of such Class of Certificates outstanding immediately prior to
such Distribution Date and (ii) the remaining unallocated portion of the Total
Principal Distribution Amount for such Distribution Date: first, to the Class B
Certificates; second, to the Class C Certificates; third, to the Class D
Certificates; fourth, to the Class E Certificates; fifth, to the Class F
Certificates; sixth, to the Class G Certificates; seventh, to the Class H
Certificates; eighth, to the Class J Certificates; ninth, to the Class K
Certificates; tenth, to the Class L Certificates; eleventh, to the Class M
Certificates; twelfth, to the Class N Certificates; and thirteenth, to the Class
P Certificates.
"Principal Prepayment" shall mean any voluntary payment of
principal made by the Borrower on a Mortgage Loan that is received in advance of
its scheduled Due Date and that is not accompanied by an amount of interest
(without regard to any Prepayment Premium and/or Post-ARD Additional Interest
that may have been collected) representing scheduled interest due on any date or
dates in the months subsequent to the month of prepayment, through and including
the month or the respective months in which it would otherwise have been due.
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"Property File" shall mean the monthly report containing the
information called for in the form attached hereto as Exhibit E-2B, which report
shall be in the form of such Exhibit E-2B or such other form for the
presentation of such information as may from time to time be recommended by the
CMSA for commercial mortgage securities transactions generally.
"Prospectus" shall mean the Base Prospectus and the Prospectus
Supplement, together.
"Prospectus Supplement" shall mean that certain prospectus
supplement dated August 15, 2000, relating to the Registered Certificates, that
is a supplement to the Base Prospectus.
"Proposed Plan" shall have the meaning assigned thereto in
Section 3.17(a)(iii).
"Purchase Price" shall mean, with respect to any Mortgage Loan
(or REO Property), a cash price equal to the aggregate of (a) the outstanding
principal balance of such Mortgage Loan (or the related REO Mortgage Loan) as of
the date of purchase, (b) all accrued and unpaid interest on such Mortgage Loan
(or the related REO Mortgage Loan) at the related Mortgage Rate (exclusive of
any portion of such interest that represents Post-ARD Additional Interest) to,
but not including, the Due Date occurring in the Collection Period during which
the applicable purchase or repurchase occurs, (c) all related unreimbursed
Servicing Advances, (d) all accrued and unpaid Advance Interest with respect to
any related Advances, and (e) solely in the case of a repurchase by a Mortgage
Loan Seller pursuant to the related Mortgage Loan Purchase Agreement, to the
extent not otherwise included in the amount described in clause (c) of this
definition, any reasonable out-of-pocket costs and expenses incurred by the
Master Servicer, the Special Servicer, the Trustee or the agent of any of them
(on behalf of the Trust) in enforcing the obligation of such Person to purchase
such Mortgage Loan.
"PWI" shall mean PaineWebber Incorporated or its successor in
interest.
"PWRES" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"PWRES Mortgage Loan Purchase Agreement" shall have the
meaning assigned thereto in the Preliminary Statement to this Agreement.
"PWRES Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement
"Qualified Appraiser" shall mean, in connection with the
appraisal of any Mortgaged Property or REO Property, an Independent
MAI-designated appraiser with at least five years of experience in respect of
the relevant geographic location and property type.
"Qualified Institutional Buyer" shall mean a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or
security or bonding company qualified to write the related Insurance Policy in
the relevant jurisdiction.
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"Rated Certificate" shall mean any of the Certificates to
which a rating has been assigned by either Rating Agency at the request of the
Depositor.
"Rated Final Distribution Date" shall mean the Distribution
Date in July 2033.
"Rated Party" shall mean, with respect to any Credit Tenant
Lease, the Credit Tenant under such Credit Tenant Lease, the affiliate of such
Tenant or the guarantor of such Tenant's obligations under such Credit Tenant
Lease, as applicable, that as of the Closing Date has long-term senior unsecured
debt obligations or long-term senior unsecured credit facilities, as the case
may be, that have been assigned, as of the Closing Date, a public investment
grade rating by a nationally recognized statistical rating organization, which
Person is identified on the Mortgage Loan Schedule.
"Rating Agency" shall mean each of Moody's and Fitch.
"Realized Loss" shall mean:
(1) with respect to each defaulted Mortgage Loan as to which a
Final Recovery Determination has been made, or with respect to any
successor REO Mortgage Loan as to which a Final Recovery Determination
has been made as to the related REO Property, an amount (not less than
zero) equal to (a) the unpaid principal balance of such Mortgage Loan
or REO Mortgage Loan, as the case may be, as of the commencement of the
Collection Period in which the Final Recovery Determination was made,
plus (b) without taking into account the amount described in subclause
(1)(c) of this definition, all unpaid interest accrued in respect of
such Mortgage Loan or REO Mortgage Loan, as the case may be, to but not
including the related Due Date in the Collection Period in which the
Final Recovery Determination was made (exclusive, however, of any
portion of such unpaid interest that constitutes Default Interest or,
in the case of an ARD Loan after its Anticipated Repayment Date,
Post-ARD Additional Interest), minus (c) all payments and proceeds, if
any, received in respect of such Mortgage Loan or REO Mortgage Loan, as
the case may be, during the Collection Period in which such Final
Recovery Determination was made (net of any related Servicing Advances
reimbursed therefrom and any related Liquidation Expenses paid
therefrom);
(2) with respect to each defaulted Mortgage Loan as to which
any portion of the principal or past due interest payable thereunder
was canceled in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20, the amount
of such principal or past due interest (other than any Default Interest
and, in the case of an ARD Loan after its Anticipated Repayment Date,
Post-ARD Additional Interest) so canceled; and
(3) with respect to each defaulted Mortgage Loan as to which
the Mortgage Rate thereon has been permanently reduced and not
recaptured for any period in connection with a bankruptcy, insolvency
or similar proceeding involving the related Borrower or a modification,
waiver or amendment of such Mortgage Loan granted or agreed to by the
Master Servicer or the Special Servicer pursuant to Section 3.20, the
amount of any
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consequent reduction in the interest portion of each successive Monthly
Payment due thereon (each such Realized Loss to be deemed to have been
incurred on the Due Date for each affected Monthly Payment).
"Record Date" shall mean, with respect to any Distribution
Date, the last Business Day of the month immediately preceding the month in
which such Distribution Date occurs.
"Registered Certificate" shall mean any Certificate that has
been registered under the Securities Act. As of the Closing Date, the Class A-1,
Class A-2, Class B, Class C, Class D, Class E, Class F and Class G Certificates
constitute Registered Certificates.
"Reimbursement Rate" shall mean the rate per annum applicable
to the accrual of Advance Interest, which rate per annum is equal to the Prime
Rate.
"REMIC" shall mean a "real estate mortgage investment conduit"
as defined in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets designated
as such in Section 2.09(a)
"REMIC I Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and,
in each such case, designated as a "regular interest" in REMIC I. The REMIC I
Regular Interests have the designations and terms provided for in Section 2.09.
"REMIC I Remittance Rate" shall mean the per annum rate at
which interest accrues in respect of any REMIC I Regular Interest during any
Interest Accrual Period, as set forth in or otherwise calculated in accordance
with Section 2.09(f).
"REMIC I Residual Interest" shall mean the sole uncertificated
"residual interest", within the meaning of Section 860G(a)(2) of the Code, in
REMIC I issued pursuant to this Agreement.
"REMIC II" shall mean the segregated pool of assets designated
as such in Section 2.11(a).
"REMIC II Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
and, in each such case, designated as a "regular interest" in REMIC II. The
REMIC II Regular Interests have the designations and terms provided for in
Section 2.11.
"REMIC II Remittance Rate" shall mean the per annum rate at
which interest accrues in respect of any REMIC II Regular Interest during any
Interest Accrual Period, as set forth in or otherwise calculated in accordance
with Section 2.11(f).
"REMIC II Residual Interest" shall mean the sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in REMIC II issued pursuant to this Agreement.
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"REMIC III" shall mean the segregated pool of assets
designated as such in Section 2.13(a).
"REMIC III Regular Interest Certificate" shall mean any of the
Certificates designated as such in Section 2.08(h).
"REMIC III Residual Interest" shall mean the sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in REMIC III issued pursuant to this Agreement.
"REMIC Pool" shall mean any of REMIC I, REMIC II or REMIC III
or any Loan REMIC.
"REMIC Provisions" shall mean the provisions of the federal
income tax law relating to real estate mortgage investment conduits, which
appear at Sections 860A through 860G of Subchapter M of Chapter 1 of the Code,
and related provisions, and proposed, temporary and final Treasury regulations
and any published rulings, notices and announcements promulgated thereunder, as
the foregoing may be in effect from time to time.
"REMIC Sub-Account" shall mean a sub-account of the
Distribution Account established pursuant to Section 3.04(b), which sub-account
shall constitute an asset of the Trust Fund and REMIC I, but not an asset of
either Grantor Trust Pool.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean a segregated custodial account or
accounts created and maintained by the Special Servicer pursuant to Section
3.16(b) on behalf of the Trustee in trust for the Certificateholders, which
shall be entitled "ORIX Real Estate Capital Markets, LLC [or the name of any
successor Special Servicer], as Special Servicer, on behalf of Wells Fargo Bank
Minnesota, N.A. [or the name of any successor Trustee], as Trustee, in trust for
the registered holders of Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-C2, REO Account".
"REO Acquisition" shall mean the acquisition of any REO
Property pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of
any REO Property pursuant to Section 3.18(d).
"REO Extension" shall have the meaning assigned thereto in
Section 3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan deemed for
purposes hereof to be outstanding with respect to each REO Property. Each REO
Mortgage Loan shall be deemed to provide for monthly payments of principal
and/or interest equal to its Assumed Monthly Payment and otherwise to have the
same terms and conditions as its predecessor Mortgage Loan (such terms and
conditions to be applied without regard to the default on such predecessor
Mortgage Loan or the Trust's acquisition of the subject REO Property). Each REO
Mortgage Loan shall be deemed to
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have an initial unpaid principal balance and Stated Principal Balance equal to
the unpaid principal balance and Stated Principal Balance, respectively, of its
predecessor Mortgage Loan as of the date of the related REO Acquisition. All
Monthly Payments (other than any Balloon Payment), Assumed Monthly Payments (in
the case of a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment) and other amounts due and owing, or deemed to be due and owing, in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, shall be deemed to continue to be due and owing in respect of an
REO Mortgage Loan. In addition, all amounts payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including any unpaid or unreimbursed Servicing Fees and Advances
(together with any related unpaid Advance Interest), shall continue to be
payable or reimbursable in the same priority and manner pursuant to Section
3.05(a) to the Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent, as the case may be, in respect of an REO Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired by the
Special Servicer on behalf of the Trust for the benefit of the
Certificateholders through foreclosure, acceptance of a deed in lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and
proceeds derived from the ownership, operation or leasing of any REO Property.
"REO Status Report" shall mean a report substantially in the
form and containing the information described in Exhibit E-9 attached hereto,
including, with respect to each REO Property that was included in the Trust Fund
as of the close of business on the Determination Date immediately preceding the
preparation of such report, among other things, (i) the Acquisition Date of such
REO Property and (ii) the value of the REO Property based on the most recent
appraisal or other valuation thereof available to the Special Servicer as of
such Determination Date (including any valuation prepared internally by the
Special Servicer).
"REO Tax" shall have the meaning assigned thereto in Section
3.17(a)(i).
"Request for Release" shall mean a request signed by a
Servicing Officer of, as applicable, the Master Servicer in the form of Exhibit
D-1 attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal Loan" shall mean any Mortgage Loan (and
any successor REO Mortgage Loan) as to which an Appraisal Trigger Event has
occurred, provided that a Mortgage Loan shall cease to be a Required Appraisal
Loan if and when, following the occurrence of the most recent Appraisal Trigger
Event with respect thereto, such Mortgage Loan has become a Corrected Mortgage
Loan and has remained current for at least three consecutive Monthly Payments,
and no other Appraisal Trigger Event has occurred with respect thereto during
the preceding three months.
"Required Claims-Paying Ratings" shall mean, with respect to
any insurance carrier, a claims-paying ability or financial strength rating of
"A2" or better from Moody's (or, if not rated by Moody's, rated at least
"A-VIII" by A.M. Best Company) and "A" or better from Fitch (or, if not rated by
Fitch, rated at least "A-VIII" by A.M. Best Company) unless, in the case of
either Rating
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Agency, such Rating Agency has confirmed in writing that an insurance company
with lower or fewer claims-paying ability ratings shall not result, in and of
itself, in an Adverse Rating Event with respect to any Class of Rated
Certificates.
"Reserve Account" shall mean any of the accounts established
and maintained pursuant to Section 3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan,
any amounts delivered by the related Borrower to be held in escrow by or on
behalf of the mortgagee representing: (i) reserves for repairs, replacements,
capital improvements and/or environmental testing and remediation with respect
to the related Mortgaged Property; (ii) reserves for tenant improvements and
leasing commissions; (iii) reserves for debt service; or (iv) amounts to be
applied as a Principal Prepayment on such Mortgage Loan or held as Additional
Collateral in the event that certain leasing or other economic criteria in
respect of the related Mortgaged Property are not met.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any Fiscal Agent, the Certificate Registrar, the Custodian or the
Certificate Administrator, the President, the Treasurer, the Secretary, any Vice
President, any Assistant Vice President, any Trust Officer, any Assistant
Secretary or any other officer of the Trustee, any Fiscal Agent, the Certificate
Registrar, the Custodian or the Certificate Administrator, as applicable,
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration of
this Agreement.
"Restricted Servicer Reports" shall mean each of the Servicer
Watch List, the Operating Statement Analysis Report, the NOI Adjustment
Worksheet, the Financial File and the Comparative Financial Status Report.
"SBRC" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"SBRC Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"SBRC Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Senior Certificate" shall mean any of the Certificates
designated as such in Section 2.08(c).
"Senior Principal Distribution Cross-Over Date" shall mean the
first Distribution Date as of which the aggregate of the Class Principal
Balances of the Class A-1 Certificates and the Class A-2 Certificates
outstanding immediately prior thereto equals or exceeds the sum of (a) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, plus (b) the lesser of (i) the
Total Principal Distribution Amount for such Distribution Date and (ii) the
portion of the Standard Available Distribution Amount for
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such Distribution Date that will remain after all distributions of interest to
be made on the Senior Certificates on such Distribution Date pursuant to Section
4.01(a) have been so made.
"Servicer Watch List" shall mean, for any Determination Date,
a report (substantially in the form of Exhibit E-10) of all Mortgage Loans that
constitute one of the following types of Mortgage Loans as of such Determination
Date: (i) a Mortgage Loan that has a then current 12-months trailing Debt
Service Coverage Ratio that is less than 1.10x; (ii) a Mortgage Loan as to which
any required inspection of the related Mortgaged Property conducted by the
Master Servicer indicates a problem that the Master Servicer determines can
reasonably be expected to materially adversely affect the cash flow generated by
such Mortgaged Property; (iii) a Mortgage Loan as to which the Master Servicer
has actual knowledge of material damage or waste at the related Mortgaged
Property; (iv) a Mortgage Loan as to which it has come to the Master Servicer's
attention in the performance of its duties under this Agreement (without any
expansion of such duties by reason thereof) that any tenant or tenants
collectively occupying 25% or more of the space in the related Mortgaged
Property (A) has vacated or intends to vacate such space (without being replaced
by a comparable tenant and lease) or (B) has declared or intends to declare
bankruptcy; or (C) is or are within six (6) months of its or their respective
lease expiration; (v) a Mortgage Loan that is at least 30 days delinquent in
payment; and (vi) a Mortgage Loan that is within 60 days of maturity. No later
than one Business Day after each Determination Date, the Special Servicer shall
provide the Master Servicer with any information in its possession regarding the
Specially Serviced Mortgage Loans necessary for preparation of the Servicer
Watch List that is not in the possession of the Master Servicer.
"Servicing Account" shall mean any of the accounts established
and maintained pursuant to Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses incurred, or to be incurred, as the
context requires, by the Master Servicer or the Special Servicer (or, if
applicable, the Trustee or any Fiscal Agent) in connection with the servicing of
a Mortgage Loan after a default, delinquency or other unanticipated event, or in
connection with the administration of any REO Property, including the cost of
(a) compliance with the obligations of the Master Servicer and/or the Special
Servicer set forth in Sections 3.03(c) and 3.09, (b) the preservation,
insurance, restoration, protection and management of a Mortgaged Property, (c)
obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
in respect of any such Mortgage Loan or any REO Property, (d) any enforcement or
judicial proceedings with respect to any such Mortgage Loan, including
foreclosures and similar proceedings, and (e) the operation, management,
maintenance and liquidation of any REO Property; provided that notwithstanding
anything to the contrary, "Servicing Advances" shall not include (A) allocable
overhead of the Master Servicer or the Special Servicer, such as costs for
office space, office equipment, supplies and related expenses, employee salaries
and related expenses and similar internal costs and expenses, or (B) costs
incurred by either such party or any Affiliate thereof in connection with its
purchase of any Mortgage Loan or REO Property pursuant to any provision of this
Agreement. All Emergency Advances made by the Special Servicer hereunder shall
be considered "Servicing Advances" for the purposes hereof.
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"Servicing Fees" shall mean, with respect to any Mortgage Loan
or REO Mortgage Loan, the Master Servicing Fee and, with respect to any
Specially Serviced Mortgage Loan or REO Mortgage Loan, the Special Servicing
Fee.
"Servicing File" shall mean any documents (other than
documents required to be part of the related Mortgage File, but including any
correspondence file) in the possession of the Master Servicer or the Special
Servicer and relating to the origination and servicing of any Mortgage Loan or
the administration of any REO Property.
"Servicing Officer" shall mean any officer or employee of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee, the Certificate Administrator and the Depositor on the Closing Date, as
such list may be amended from time to time by the Master Servicer or the Special
Servicer, as applicable.
"Servicing Return Date" shall mean, with respect to any
Corrected Mortgage Loan, the date that servicing thereof is returned by the
Special Servicer to the Master Servicer pursuant to Section 3.21(a).
"Servicing Standard" shall mean, with respect to each of the
Master Servicer and the Special Servicer, to service and administer the Mortgage
Loans and REO Properties for which such Person is responsible hereunder: (a)
with the same care, skill and diligence as is normal and usual in its general
mortgage servicing and REO property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder; (b) with a view to the timely collection of all scheduled
payments of principal and interest due under the Mortgage Loans or, if a
Mortgage Loan comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a collective whole)
on a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders to be performed at the related
Net Mortgage Rate); and (c) without regard to any conflicts of interest that may
arise from: (i) any relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Borrower, (ii) the ownership of any Certificate by the Master Servicer or the
Special Servicer, as the case may be, or by Affiliate thereof, (iii) the Master
Servicer's obligation to make Advances, (iv) the Special Servicer's obligation
to make (or to direct the Master Servicer to make) Servicing Advances, (v) the
right of the Master Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction, (vi) any ownership, servicing or management by the Master Servicer
or the Special Servicer, as the case may be, or any Affiliate thereof of any
other real estate loans or real property not included in or securing, as the
case may be, the Mortgage Pool or the right to service or manage for others any
such other real estate loans or real properties; and (vii) any obligation of the
Master Servicer or the Special Servicer, as the case may be, or any Affiliate
thereof to repurchase any Mortgage Loan under the related Mortgage Loan Purchase
Agreement or to cure a Material Document Defect or Material Breach.
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"Servicing Transfer Event" shall mean, with respect to any
Mortgage Loan, the occurrence of any of the events described in clauses (a)
through (g) of the definition of "Specially Serviced Mortgage Loan".
"Sole Certificateholder" shall mean any holder of 100% of the
Certificates.
"Specially Serviced Mortgage Loan" shall mean any Mortgage
Loan as to which any of the following events has occurred:
(a) the related Borrower has failed to make when due any
Monthly Payment (including a Balloon Payment) or any other payment
required under the related Mortgage Note or the related Mortgage(s),
which failure continues, or the Master Servicer determines, in its
reasonable, good faith judgment, will continue, unremedied for 60 days;
or
(b) the Master Servicer has determined, in its reasonable,
good faith judgment, that a default in making a Monthly Payment
(including a Balloon Payment) or any other material payment required
under the related Mortgage Note or the related Mortgage(s) is likely to
occur in the foreseeable future and either (i) such default is not
likely to be cured within 60 days following the occurrence thereof or
(ii) the related Borrower has requested a material modification of the
related Mortgage Loan (other than a waiver of a "due-on-sale" clause
permitted under Section 3.08); or the related Borrower has transferred
or permitted the transfer of the Mortgage Loan, the related Mortgaged
Property or direct or indirect ownership or control of the Borrower or
management of the related Mortgaged Property, or has changed the
management of the related Mortgaged Property, in any such case without
the requisite consent or approval of the Trustee, the Master Servicer
or the Special Servicer, to the extent such consent is required under
the related Mortgage Loan documents; or
(c) the Master Servicer has determined, in its reasonable,
good faith judgment, that a default, other than as described in clause
(a) or clause (b) above, has occurred that may materially impair the
value of the related Mortgaged Property as security for the Mortgage
Loan, which default has continued unremedied for the applicable cure
period under the terms of the Mortgage Loan (or, if no cure period is
specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary action
against the related Borrower under any present or future federal or
state bankruptcy, insolvency or similar law or the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding, or
for the winding-up or liquidation of its affairs, shall have been
entered against the related Borrower, and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a
period of 60 days; or
(e) the related Borrower shall have consented to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceeding of or relating to such Borrower or of or relating
to all or substantially all of its property; or
(f) the related Borrower shall have admitted in writing its
inability to pay its debts generally as they become due, filed a
petition to take advantage of any applicable
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insolvency or reorganization statute, made an assignment for the
benefit of its creditors, or voluntarily suspended payment of its
obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property or Properties;
provided, however, that a Mortgage Loan shall cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, when the related Mortgaged Property has become an REO Property or, so long
as at such time no circumstance identified in clauses (a) through (g) above
exists that would cause the Mortgage Loan to continue to be characterized as a
Specially Serviced Mortgage Loan:
(w) with respect to the circumstances described in clauses (a)
above, if and when the related Borrower has made three consecutive full
and timely Monthly Payments under the terms of such Mortgage Loan (as
such terms may be changed or modified in connection with a bankruptcy
or similar proceeding involving the related Borrower or by reason of a
modification, waiver or amendment granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses
(b), (d), (e) and (f) above, if and when such circumstances cease to
exist in the reasonable, good faith judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (c)
above, if and when such default is cured in the reasonable, good faith
judgment of the Special Servicer; and
(z) with respect to the circumstances described in clause (g)
above, if and when such proceedings are terminated.
"Special Servicer" shall mean ORECM, in its capacity as
special servicer hereunder, or any successor Special Servicer appointed as
herein provided.
"Special Servicing Fee" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan, the fee designated
as such and payable to the Special Servicer pursuant to the first paragraph of
Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% per annum.
"SSB" shall mean Salomon Smith Barney Inc. or its successors
in interest.
"Standard Available Distribution Amount" shall mean, with
respect to any Distribution Date, an amount equal to (a) the sum of, without
duplication, (i) all amounts on deposit in the Distribution Account as of 11:00
a.m., New York City time, on such Distribution Date, (ii) to the extent not
included in the amount described in clause (a)(i) of this definition, any P&I
Advances and/or Compensating Interest Payments that were made in respect of such
Distribution Date, (iii) to the extent not included in the amount described in
clause (a)(i) of this definition, the aggregate
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amount transferred (pursuant to Section 3.05(d)) from the Gain on Sale Reserve
Fund to the Distribution Account in respect of such Distribution Date, and (iv)
to the extent not included in the amount described in clause (a)(i) of this
definition, if such Distribution Date occurs during March 2001 or during March
of any year thereafter , the aggregate of the Interest Reserve Amounts with
respect to the Interest Reserve Loans transferred from the Interest Reserve
Account to the Distribution Account during such month of March for distribution
on such Distribution Date, net of (b) any portion of the amounts described in
clause (a) of this definition that represents, without duplication, one or more
of the following: (i) collected Monthly Payments that are due on a Due Date
following the end of the related Collection Period, (ii) any payments of
principal (including Principal Prepayments) and interest, Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds received after the end of the
related Collection Period, (iii) any Prepayment Premiums and/or Post-ARD
Additional Interest; (iv) any amounts payable or reimbursable to any Person from
the Distribution Account pursuant to clauses (ii) through (v) of Section
3.05(b), (v) if such Distribution Date occurs during February 2001 or during
February of any year thereafter or during January 2001 or during January of any
year thereafter that is not a leap year, the aggregate of the Interest Reserve
Amounts with respect to the Interest Reserve Loans to be withdrawn (pursuant to
Section 3.04(c) and Section 3.05(b)(vi)) from the Distribution Account and
deposited into the Interest Reserve Account during such month of February or
such month of January, as the case may be, and held for future distribution, and
(vi) any amounts deposited in the Distribution Account in error; provided that
the Standard Available Distribution Amount for the Final Distribution Date shall
be calculated without regard to clauses (b)(i), (b)(ii) and (b)(v) of this
definition.
"Startup Day" shall mean, with respect to each REMIC Pool, the
day designated as such in Section 2.09(a) (in the case of REMIC I), Section
2.11(a) (in the case of REMIC II), Section 2.13(a) (in the case of REMIC III) or
in the related Loan REMIC Declaration (in the case of any Loan REMIC), as
applicable.
"Stated Maturity Date" shall mean, with respect to any
Mortgage Loan, the Due Date specified in the related Mortgage Note (as in effect
on the Closing Date) on which the last payment of principal is due and payable
under the terms of such Mortgage Note, without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Borrower or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 and, in the case of an ARD Loan, without regard to its Anticipated
Repayment Date.
"Stated Principal Balance" shall mean, with respect to any
Mortgage Loan (and any successor REO Mortgage Loan), a principal balance which
(a) initially shall equal the Cut-off Date Principal Balance of such Mortgage
Loan, and (b) shall be permanently reduced on each subsequent Distribution Date
(to not less than zero) by (i) that portion, if any, of the Total Principal
Distribution Amount for such Distribution Date attributable to such Mortgage
Loan (or successor REO Mortgage Loan), and (ii) the principal portion of any
Realized Loss incurred in respect of such Mortgage Loan (or successor REO
Mortgage Loan) during the related Collection Period; provided that, if a
Liquidation Event occurs in respect of any Mortgage Loan or REO Property, then
the "Stated Principal Balance" of such Mortgage Loan or of the related REO
Mortgage Loan, as the case may be, shall be zero commencing as of the
Distribution Date next following the end of the Collection Period in which such
Liquidation Event occurred.
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"Subordinate Certificate" shall mean any of the Certificates
designated as such in Section 2.08(d).
"Subordinate Principal Balance Certificate" shall mean any of
the Certificates designated as such in Section 2.08(f).
"Sub-Servicer" shall mean any Person with which the Master
Servicer or the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract
between the Master Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the other hand, relating to servicing and administration of
Mortgage Loans as provided in Section 3.22.
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 10.03 (or, in the absence of any such appointee acting in
such capacity, the Trustee).
"Tax Matters Person" shall mean, with respect to any REMIC
Pool, the Person designated as the "tax matters person" of such REMIC Pool in
the manner provided under Treasury regulation section 1.860F-4(d) and temporary
Treasury regulation section 301.6231(a)(7)-1T, which Person shall, pursuant to
Section 10.01(b), be the Plurality Class R Certificateholder.
"Tax Returns" shall mean the federal income tax return on IRS
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holder of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each REMIC Pool due to its classification as a REMIC
under the REMIC Provisions, together with any and all other information, reports
or returns that may be required to be furnished to the Certificateholders or
filed with the IRS under any applicable provisions of federal tax law or any
other governmental taxing authority under applicable state or local tax laws.
"Termination Price" shall have the meaning assigned thereto in
Section 9.01.
"Total Principal Distribution Amount" shall mean:
(a) with respect to any Distribution Date prior to the Final
Distribution Date, an amount equal to the aggregate (without
duplication) of the following --
(i) all payments of principal (including Principal
Prepayments) received on the Mortgage Loans during
the related Collection Period, in each case net of
any portion of the particular payment that represents
a Late Collection of principal for which a P&I
Advance was previously made for a prior Distribution
Date or that represents the principal portion of a
Monthly Payment due on or before the Cut-off Date or
on a Due Date subsequent to the end of the related
Collection Period,
(ii) all scheduled payments of principal due in respect of
the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period that
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were received (other than as part of a Principal
Prepayment) prior to the related Collection Period,
(iii) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received on any of the Mortgage
Loans during the related Collection Period that were
identified and applied by the Master Servicer as
recoveries of principal of such Mortgage Loans in
accordance with Section 1.03, in each case net of any
portion of such proceeds that represents a Late
Collection of principal due on or before the Cut-off
Date or for which a P&I Advance was previously made
for a prior Distribution Date,
(iv) all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and REO Revenues received in
respect of any REO Properties during the related
Collection Period that were identified and applied by
the Master Servicer as recoveries of principal of the
related REO Mortgage Loans in accordance with Section
1.03, in each case net of any portion of such
proceeds and/or revenues that represents a Late
Collection of principal due on or before the Cut-off
Date or for which a P&I Advance was previously made
for a prior Distribution Date,
(v) the respective principal portions of all P&I Advances
made in respect of the Mortgage Loans and any REO
Mortgage Loans with respect to such Distribution
Date, and
(vi) the excess, if any, of the Total Principal
Distribution Amount for the prior Distribution Date,
if any, over the total distributions of principal
made on such prior Distribution Date with respect to
the Principal Balance Certificates; and
(b) with respect to the Final Distribution Date, an amount
equal to the aggregate Stated Principal Balance of the entire Mortgage
Pool outstanding immediately prior to the Final Distribution Date.
"Transfer" shall mean any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"Transfer Affidavit and Agreement" shall have the meaning
assigned thereto in Section 5.02(d).
"Transferee" shall mean any Person who is acquiring by
Transfer any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing by
Transfer any Ownership Interest in a Certificate.
"Treasury Rate" shall have the meaning assigned thereto in
Section 4.01(d).
"Trust" shall mean the trust created hereby.
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"Trustee" shall mean Wells Fargo, in its capacity as trustee
hereunder, or any successor trustee appointed as herein provided.
"Trustee's Fee" shall mean, with respect to any Mortgage Loan
or REO Mortgage Loan, the fee designated as such and payable to the Trustee
pursuant to Section 8.05(a).
"Trustee's Fee Rate" shall mean 0.0025% per annum.
"Trust Fund" shall mean, collectively, all of the assets of
all the REMIC Pools and Grantor Trust Pools.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement
executed and filed pursuant to the Uniform Commercial Code, as in effect in any
relevant jurisdiction.
"Uncertificated Principal Balance" shall mean the principal
balance outstanding from time to time of any REMIC I Regular Interest
(calculated in accordance with Section 2.09(e) hereof) or any REMIC II Regular
Interest (calculated in accordance with Section 2.11(e) hereof).
"Underwriters" shall mean, collectively, SSB, PWI, CSI and
ABC.
"Unfunded Principal Balance Reduction" shall mean any
reduction made in the Class Principal Balance of any Class of Principal Balance
Certificates pursuant to Section 4.04(a), the Uncertificated Principal Balance
of any REMIC II Regular Interest pursuant to Section 4.04(b) or the
Uncertificated Principal Balance of any REMIC I Regular Interest pursuant to
Section 4.04(c).
"United States Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
"Unrestricted Servicer Reports" shall mean each of the files
and reports comprising the CMSA Investor Loan Reporting Package (excluding the
Restricted Servicer Reports).
"USAP" shall mean the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America.
"USPAP" shall mean the Uniform Standards of Professional
Appraisal Practices.
"Voting Rights" shall mean the voting rights evidenced by the
respective Certificates. At all times during the term of this Agreement, 98% of
the Voting Rights shall be allocated among all the Holders of the various
Classes of Principal Balance Certificates in
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proportion to the respective Class Principal Balances of such Classes, 2% of the
Voting Rights shall be allocated to the Holders of the Class X Certificates, and
0% of the Voting Rights shall be allocated to the Holders of the Class R and
Class Y Certificates. Voting Rights allocated to a particular Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the respective Percentage Interests evidenced by their respective
Certificates.
"Wells Fargo" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Workout Fee" shall mean, with respect to each Corrected
Mortgage Loan, the fee designated as such and payable to the Special Servicer
pursuant to the second paragraph of Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected
Mortgage Loan, 1.0%.
"Yield Maintenance Certificates" shall mean the Class A, Class
B, Class C, Class D, Class E, Class F and Class G Certificates.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as
the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles as in effect from time to time;
(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference to
a document are to designated Articles, Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to
a Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also apply
to Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto",
"hereby" and other words of similar import refer to this Agreement as a
whole and not to any particular provision; and
(vi) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
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SECTION 1.03. Certain Calculations in Respect of the Mortgage
Pool.
(a) All amounts collected in respect of any
Cross-Collateralized Group in the form of payments from Borrowers, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied by
the Master Servicer among the Mortgage Loans constituting such
Cross-Collateralized Group in accordance with the express provisions of the
related loan documents and, in the absence of such express provisions, on a pro
rata basis in accordance with the respective amounts then "due and owing" as to
each such Mortgage Loan. All amounts collected in respect of or allocable to any
particular individual Mortgage Loan (whether or not such Mortgage Loan
constitutes part of a Cross-Collateralized Group) in the form of payments from
Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
shall be applied for purposes of this Agreement (including for purposes of
determining distributions on the Certificates pursuant to Article IV and
additional compensation payable to the Master Servicer, the Special Servicer and
any Sub-Servicers and also for reporting purposes) as follows: first, as a
recovery of any related and unreimbursed Servicing Advances and, if applicable,
unpaid Liquidation Expenses; second, as a recovery of accrued and unpaid
interest on such Mortgage Loan to, but not including, the date of receipt (or,
in the case of a full Monthly Payment from any Borrower, through the related Due
Date), exclusive, however, of any portion of such accrued and unpaid interest
that constitutes Default Interest or, in the case of an ARD Loan after its
Anticipated Repayment Date, that constitutes Post-ARD Additional Interest;
third, as a recovery of principal of such Mortgage Loan then due and owing,
including by reason of acceleration of the Mortgage Loan following a default
thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage
Loan, as a recovery of principal to the extent of its entire remaining unpaid
principal balance); fourth, unless a Liquidation Event has occurred in respect
of such Mortgage Loan, as a recovery of amounts to be currently applied to the
payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan,
as a recovery of Reserve Funds to the extent then required to be held in escrow;
sixth, as a recovery of any Prepayment Premium then due and owing under such
Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing
under such Mortgage Loan; eighth, as a recovery of any assumption fees and
modification fees then due and owing under such Mortgage Loan; ninth, as a
recovery of any other amounts then due and owing under such Mortgage Loan other
than remaining unpaid principal and, in the case of an ARD Loan after its
Anticipated Repayment Date, other than Post-ARD Additional Interest; tenth, as a
recovery of any remaining principal of such Mortgage Loan to the extent of its
entire remaining unpaid principal balance; and, eleventh, in the case of an ARD
Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Post-ARD Additional Interest on such ARD Loan to but not including the date of
receipt. The Master Servicer shall, to the fullest extent permitted by
applicable law and the related Mortgage Loan documents, apply all payments on
and proceeds of each Mortgage Loan to amounts actually due and owing from the
related Borrower in a manner consistent with the foregoing and shall maintain
accurate records of how all such payments and proceeds are actually applied and
are applied for purposes of this Agreement.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be applied for purposes of
this Agreement (including for purposes of determining distributions on the
Certificates pursuant to Article IV and additional compensation payable to the
Master Servicer, the Special Servicer and any Sub-Servicers and also for
reporting purposes) as
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follows: first, as a recovery of any related and unreimbursed Servicing Advances
and, if applicable, unpaid Liquidation Expenses; second, as a recovery of
accrued and unpaid interest on the related REO Mortgage Loan to, but not
including, the Due Date in the Collection Period of receipt, exclusive, however,
of any portion of such accrued and unpaid interest that constitutes Default
Interest or, in the case of an REO Mortgage Loan that relates to an ARD Loan
after its Anticipated Repayment Date, that constitutes Post-ARD Additional
Interest; third, as a recovery of principal of the related REO Mortgage Loan to
the extent of its entire unpaid principal balance; fourth, as a recovery of any
Prepayment Premium deemed to be due and owing in respect of the related REO
Mortgage Loan; fifth, as a recovery of any other amounts deemed to be due and
owing in respect of the related REO Mortgage Loan (other than, in the case of an
REO Mortgage Loan that relates to an ARD Loan after its Anticipated Repayment
Date, accrued and unpaid Post-ARD Additional Interest); and sixth, in the case
of an REO Mortgage Loan that relates to an ARD Loan after its Anticipated
Repayment Date, any accrued and unpaid Post-ARD Additional Interest.
(c) For the purposes of this Agreement, Post-ARD Additional
Interest on an ARD Loan or a successor REO Mortgage Loan shall be deemed not to
constitute principal or any portion thereof and shall not be added to the unpaid
principal balance or Stated Principal Balance of such ARD Loan or successor REO
Mortgage Loan, notwithstanding that the terms of the related loan documents so
permit. To the extent any Post-ARD Additional Interest is not paid on a current
basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage
Loan or REO Property and allocable to fees and charges owing in respect of such
Mortgage Loan or the related REO Mortgage Loan, as the case may be, that
constitute Additional Master Servicing Compensation payable to the Master
Servicer and/or Additional Special Servicing Compensation payable to the Special
Servicer, are insufficient to cover the full amount of such fees and charges,
such amounts shall be allocated between such of those fees and charges as are
payable to the Master Servicer, on the one hand, and such of those fees and
charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect
of any Mortgage Loan or REO Property shall be determined by the Master Servicer,
in its reasonable judgment, and reflected in the appropriate monthly report from
the Master Servicer and in the appropriate monthly Distribution Date Statement
as provided in Section 4.02.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Mortgage Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement, including each of the defined terms
set forth in Section 1.01, shall be interpreted in a manner consistent with this
Section 1.04; provided that, if there exists with
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respect to any Cross-Collateralized Group only one original of any document
referred to in the definition of "Mortgage File" covering all the Mortgage Loans
in such Cross-Collateralized Group, then 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.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS,
REMIC III REGULAR INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common
law trust be established pursuant to this Agreement and, further, that such
trust be designated as "Salomon Brothers Commercial Mortgage Trust 2000-C2".
Wells Fargo is hereby appointed, and does hereby agree, to act as Trustee
hereunder and, in such capacity, to hold the Trust Fund in trust for the
exclusive use and benefit of all present and future Certificateholders. It is
not intended that this Agreement create a partnership or a joint-stock
association.
(b) The Depositor, concurrently with the execution and
delivery hereof, does hereby sell, assign, transfer and otherwise convey to the
Trustee without recourse for the benefit of the Certificateholders, all the
right, title and interest of the Depositor in, to and under (i) the Mortgage
Loans, all payments under and proceeds of the Mortgage Loans received after the
Closing Date (other than scheduled payments of interest and principal due on or
before the Cut-off Date), all Principal Prepayments and corresponding interest
payments on the Mortgage Loans received after the Cut-off Date through and
including the Closing Date, and all documents included in the related Mortgage
Files and any related Additional Collateral; (ii) any REO Property acquired in
respect of any Mortgage Loan; (iii) such funds or assets as from time to time
are deposited in the Collection Account, the Distribution Account, the Interest
Reserve Account, the Gain on Sale Reserve Fund and, if established, the REO
Account; (iv) each Mortgage Loan Purchase Agreement; (v) the Loan REMIC
Interests and the Loan REMIC Declarations; and (vi) all other assets included or
to be included in the Trust Fund. This conveyance is subject to the right of the
Master Servicer and the Designated Sub-Servicers to primary service (or perform
select servicing duties with respect to) certain of the Mortgage Loans and, in
the case of the Mortgage Loans listed on Exhibit B-1E, subject to the related
Loan REMIC Declarations. In connection with the Depositor's assignment above,
the Depositor hereby directs the Trustee to execute the Artesia Banking
Corporation comfort letter substantially in the form of Exhibit C-2 attached
hereto, which comfort letter relates to the AMCC Mortgage Loan Purchase
Agreement.
Under generally accepted accounting principles and for federal
income tax purposes, the Depositor shall report: (i) its acquisition of the SBRC
Mortgage Loans from SBRC, pursuant to the SBRC Mortgage Loan Purchase Agreement,
as a purchase of such Mortgage Loans from SBRC; (ii) its acquisition of the
PWRES Mortgage Loans from PWRES, pursuant to the PWRES Mortgage Loan Purchase
Agreement, as a purchase of such Mortgages Loans from PWRES; (iii) its
acquisition of the AMCC Mortgage Loans from AMCC, pursuant to the AMCC Mortgage
Loan Purchase Agreement, as a purchase of such Mortgages Loans from AMCC; (iv)
its acquisition of the ORECM Mortgage Loans from ORECM, pursuant to the ORECM
Mortgage Loan Purchase Agreement, as a purchase of such Mortgages Loans from
ORECM; and (v) its transfer of the Mortgage Loans to the Trustee, pursuant to
this Section 2.01(b), as a sale of the Mortgage Loans to the Trustee. In
connection with the foregoing, the Depositor shall cause all of its records to
reflect
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such acquisitions as purchases and such transfer as a sale (in each case, as
opposed to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the
Trustee pursuant to this Section 2.01(b), the Depositor shall not take any
action inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The conveyance of the Mortgage Loans (and, in the case of
the Mortgage Loans listed on Exhibit B-1E, the related Loan REMIC Interests) and
the related rights and property accomplished hereby is absolute and is intended
by the parties hereto to constitute an absolute transfer of the Mortgage Loans,
such Loan REMIC Interests and such other related rights and property by the
Depositor to the Trustee for the benefit of the Certificateholders. Furthermore,
it is not intended that such conveyance be a pledge of security for a loan. If
such conveyance is determined to be a pledge of security for a loan, however,
the Depositor intends that the rights and obligations of the parties to such
loan shall be established pursuant to the terms of this Agreement. The Depositor
also intends and agrees that, in such event, (i) this Agreement shall constitute
a security agreement under applicable law, (ii) the Depositor shall be deemed to
have granted to the Trustee (in such capacity) a first priority security
interest in all of the Depositor's right, title and interest in and to the
assets constituting the Trust Fund, including the Mortgage Loans and Loan REMIC
Interests subject hereto from time to time, all principal and interest received
on or with respect to such Mortgage Loans and Loan REMIC Interests after the
Closing Date (other than scheduled payments of interest and principal due and
payable on such Mortgage Loans and the Loan REMIC Interests on or prior to the
Cut-off Date), all amounts held from time to time in the Collection Account, the
Distribution Account, the Interest Reserve Account, the Gain on Sale Reserve
Fund and, if established, the REO Account and all reinvestment earnings on such
amounts, and all of the Depositor's right, title and interest under each
Mortgage Loan Purchase Agreement, (iii) the possession by the Trustee or its
agent of the Mortgage Notes with respect to the Mortgage Loans and the Loan
REMIC Interests subject hereto from time to time 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" or possession by a
purchaser or person designated by such secured party for the purpose of
perfecting such security interest under applicable law, and (iv) notifications
to, and acknowledgments, receipts or confirmations from, Persons holding such
property, shall be deemed to be notifications to, or acknowledgments, receipts
or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Trustee for the purpose of perfecting such security interest
under applicable law. The Depositor shall file or cause to be filed, as a
precautionary filing, a Form UCC-1 substantially in the form attached as Exhibit
J hereto in all appropriate locations in the State of New York promptly
following the initial issuance of the Certificates, and the Trustee shall
prepare, execute and file at each such office, continuation statements with
respect thereto, in each case within six months prior to the fifth anniversary
of the immediately preceding filing. The Depositor shall cooperate in a
reasonable manner with the Trustee in preparing and filing such continuation
statements. This Section 2.01(c) shall constitute notice to the Trustee pursuant
to any requirements of the UCC in effect in New York.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Sellers, pursuant to their respective
Mortgage Loan Purchase Agreements, to deliver to and deposit with, or cause to
be delivered to and deposited with, the Trustee or a Custodian appointed
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thereby, on or before the Closing Date, the Mortgage File and any Additional
Collateral (other than Reserve Funds and Escrow Payments) for each Mortgage Loan
so assigned, subject, however, to the conditions set forth in the second
paragraph of the Section 2(c) of each Mortgage Loan Purchase Agreement. The
Depositor shall deliver to the Trustee or a Custodian appointed thereby and the
Master Servicer on or before the Closing Date a fully executed counterpart of
each Mortgage Loan Purchase Agreement.
If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on or before the Closing Date, as to any of its Mortgage Loans, any
of the documents and/or instruments required to be delivered as part of the
Mortgage File for such Mortgage Loan, with evidence of recording or filing
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, and such Mortgage Loan Seller has satisfied its delivery requirements as
to such non-delivered document or instrument by delivering a photocopy thereof
(without evidence of recording or filing, but certified by such Mortgage Loan
Seller to be a true and complete copy of the original thereof submitted for
recording or filing), then the Trustee or a Custodian on its behalf shall, on or
about the 115th day following the Closing Date and approximately every 90 days
thereafter until the Trustee or Custodian on its behalf receives the original or
a photocopy of the subject document or instrument reflecting evidence of
recordation or filing, prepare and forward or cause to be prepared and forwarded
to such Mortgage Loan Seller a certification substantially in the form of
Exhibit B-4 attached hereto, to be signed and returned by such Mortgage Loan
Seller, to the effect that such Mortgage Loan Seller is in good faith attempting
to obtain from the appropriate public recording or filing office such original
or photocopy. If any Mortgage Loan Seller does not execute and return to the
Trustee or a Custodian on its behalf any such certification within 15 days
following its receipt thereof, the Trustee or a Custodian on its behalf shall
promptly notify the Master Servicer, the Special Servicer and the Controlling
Class Representative.
(e) As soon as reasonably possible, and in any event within 30
days after the later of (i) the Closing Date and (ii) the date on which all
recording information necessary to complete the subject document is received by
the Trustee or any Custodian appointed thereby, the Trustee or a Custodian on
its behalf (using a third party acceptable to the Trustee and the Master
Servicer) is hereby authorized and shall complete (to the extent necessary) and
cause to be submitted for recording or filing, as the case may be, in the
appropriate office for real property records or UCC Financing Statements, as
applicable, each assignment of Mortgage and assignment of Assignment of Leases
in favor of the Trustee referred to in clauses (iv) and (v) of the definition of
"Mortgage File" that has been received by the Trustee or a Custodian on its
behalf and each UCC-2 and UCC-3 in favor of the Trustee referred to in clause
(viii) of the definition of "Mortgage File" that has been received by the
Trustee or a Custodian on its behalf. Each such assignment shall reflect that it
should be returned by the public recording office to the Trustee or the
applicable Custodian on its behalf following recording, and each such UCC-2 and
UCC-3 shall reflect that the filed copy thereof should be returned to the
Trustee or the applicable Custodian on its behalf following filing; provided
that in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases the Trustee or a
Custodian on its behalf shall obtain or cause to be obtained therefrom a
certified copy of the recorded original. The Trustee or a Custodian on its
behalf shall promptly forward copies of such recorded or final documents to the
Master Servicer. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee or a Custodian on
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its behalf, at the option of the Trustee, either (i) shall direct the related
Mortgage Loan Seller to prepare or cause to be prepared promptly, pursuant to
the related Mortgage Loan Purchase Agreement, a substitute therefor or cure such
defect, as the case may be, or (ii) shall prepare or cause to be prepared a
substitute therefor or cure such defect, as the case may be, and thereafter the
Trustee or a Custodian on its behalf shall, upon receipt thereof, cause the same
to be duly recorded or filed, as appropriate. If a Mortgage Loan Seller has been
so notified, then the Trustee or a Custodian on its behalf shall promptly
thereafter also so notify the Master Servicer, the Special Servicer, the Rating
Agencies and the Controlling Class Representative. As regards the reasonable
out-of-pocket costs and expenses incurred by the Trustee or any Custodian on its
behalf in connection with the recording and filing of documents pursuant to this
Section 2.01(e), the Trustee shall seek reimbursement from the related Mortgage
Loan Seller as and to the extent provided in the related Mortgage Loan Purchase
Agreement. Notwithstanding the foregoing, there shall be no requirement to
record any assignment to the Trustee referred to in clause (ii), (iii), (iv) or
(v) of the definition of "Mortgage File," or to file any UCC-2 or UCC-3 to the
Trustee referred to in clause (viii) of the definition of "Mortgage File," in
those jurisdictions where, in the written opinion of local counsel (which
opinion shall not be an expense of the Trust Fund) reasonably acceptable to the
Depositor, the Master Servicer and the Trustee, or the Trustee's and the
Depositor's receipt of an Officer's Certificate from the Master Servicer to the
effect that there exists evidence satisfactory to the Master Servicer that, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Sub-Servicer or the Depositor; provided that if any such document
is not going to be recorded or filed, as applicable, the Trustee or a Custodian
on its behalf shall notify the Rating Agencies.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Sellers, pursuant to their respective
Mortgage Loan Purchase Agreements, to deliver to and deposit with, or cause to
be delivered to and deposited with, the Master Servicer, on or before the
Closing Date (or, if any of the following items were not in the actual
possession of a Mortgage Loan Seller, as soon as reasonably practical, but in
any event within 30 days, after the Closing Date): (i) copies of the Mortgage
Files for the respective Mortgage Loans; and (ii) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
particular Mortgage Loan Seller that relate to the Mortgage Loans and, to the
extent they are not required to be a part of a Mortgage File in accordance with
the definition thereof, originals or copies of all documents, certificates and
opinions in the possession or under the control of the particular Mortgage Loan
Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of the Mortgage Loans; and (iii) all unapplied
reserve funds and escrow payments in the possession or under the control of the
particular Mortgage Loan Seller that relate to the respective Mortgage Loans,
other than those that are to be retained by a sub-servicer or primary servicer
that will continue to act on behalf of the Master Servicer . The Master Servicer
shall hold all such documents, records and funds on behalf of the Trustee in
trust for the benefit of the Certificateholders. The Depositor hereby represents
and warrants that the Mortgage Loan Sellers, pursuant to their respective
Mortgage Loan Purchase Agreements, are contractually obligated to provide the
Trustee with a power of attorney to enable the Trustee to record any loan
documents that the Trustee and the Special Servicer has been unable to record.
The Master Servicer shall not
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be liable to the Trust or any parties hereto for the failure of the Mortgage
Loan Seller to deliver any of the above-referenced documents.
(g) The Depositor shall be responsible for paying the on-going
surveillance fees of the Rating Agencies, which may be in the form of a one time
up-front payment.
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the
Trustee, by its execution and delivery of this Agreement, hereby accepts receipt
on behalf of the Trust, directly or through a Custodian on its behalf, of (i)
the Mortgage Loans and all documents delivered to it that constitute portions of
the related Mortgage Files, (ii) the Loan REMIC Interests and the Loan REMIC
Declarations, and (iii) all other assets delivered to it and included in the
Trust Fund, in good faith and without notice of any adverse claim, and declares
that it or a Custodian on its behalf holds and will hold such documents and any
other documents received by it that constitute portions of the Mortgage Files,
and that it holds and will hold the Mortgage Loans, the Loan REMIC Interests and
such other assets, together with any other assets subsequently delivered to it
that are to be included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. The Trustee or such
Custodian shall hold any Letter of Credit in a custodial capacity only and shall
have no obligation to maintain, extend the term of, enforce or otherwise pursue
any rights under such Letter of Credit. In connection with the foregoing, the
Trustee hereby certifies to each of the other parties hereto, the Mortgage Loan
Sellers, the Controlling Class Representative and the Underwriters that, as to
each Mortgage Loan, except as specifically identified in the Schedule of
Exceptions to Mortgage File Delivery attached hereto as Exhibit B-2, (i) the
original Mortgage Note specified in clause (i) of the definition of "Mortgage
File" and all allonges thereto, if any (or, a copy of such Mortgage Note,
together with a "lost note affidavit" certifying that the original of such
Mortgage Note has been lost), if any, are in its possession or the possession of
a Custodian on its behalf, and (ii) if such Mortgage Loan is identified on
Exhibit B-1, the original or a copy of the Loan REMIC Declaration specified in
clause (xiii) of the definition of "Mortgage File" is in its possession or the
possession of a Custodian on its behalf, (iii) such Mortgage Note (or copy
thereof) and, if applicable, such Loan REMIC Declaration have been reviewed by
it or by such Custodian on its behalf and each (A) appears regular on its face
(in the case of such Mortgage Note, handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appears to have been executed and (C) purports to relate to such Mortgage
Loan.
(b) On or about the 45th day following the Closing Date (and,
if any exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee or a
Custodian on its behalf of the particular documents showing evidence of the
recordation/filing), every 90 days thereafter until the earliest of (i) the date
on which such exceptions are eliminated and such recordation/filing has been
completed and (ii) the date on which all the affected Mortgage Loans are removed
from the Trust Fund), the Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each Mortgage Loan,
and the Trustee or a Custodian on its behalf shall, subject to Sections 1.04,
2.02(c) and 2.02(d), certify in writing (substantially in the form of Exhibit
B-3) to each of the other parties hereto, the Mortgage Loan Sellers, the
Controlling Class Representative and the Underwriters that, as to each Mortgage
Loan then subject to this Agreement (except as specifically
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identified in any exception report annexed to such certification): (i) the
original Mortgage Note specified in clause (i) of the definition of "Mortgage
File" and all allonges thereto, if any (or a copy of such Mortgage Note,
together with a "lost note affidavit" certifying that the original of such
Mortgage Note has been lost), if any, the original or a copy of each document
specified in clauses (ii) through (v) of the definition of "Mortgage File", the
original or a copy of the policy of title insurance specified in clause (vii) of
the definition of "Mortgage File", the original or a copy of each document
specified in clause (viii) of the definition of "Mortgage File" (without regard
to the parenthetical) and, in the case of each Mortgage Loan identified on
Exhibit B-1E, the original or a copy of the Loan REMIC Declaration specified in
clause (xiii) of the definition of "Mortgage File", has been delivered to it or
to a Custodian on its behalf; (ii) if such report is more than 180 days after
the Closing Date, the recordation/filing contemplated by Section 2.01(e) has
been completed (based solely on receipt by the Trustee or a Custodian on its
behalf of the particular recorded/filed documents); (iii) all documents received
by it or any Custodian with respect to such Mortgage Loan have been reviewed by
it or by such Custodian on its behalf and (A) appear regular on their face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Borrower), (B) appear to have been executed
and (C) purport to relate to such Mortgage Loan; and (iv) based on the
examinations referred to in Section 2.02(a) above and this Section 2.02(b) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses (ii) (other than
the zip code) and (vi)(B) of the definition of "Mortgage Loan Schedule"
accurately reflects the information set forth in the Mortgage File.
(c) None of the Trustee, the Master Servicer, the Special
Servicer or any Custodian is under any duty or obligation to inspect, review or
examine any of the documents, instruments, certificates or other papers relating
to the Mortgage Loans delivered to it to determine that the same are valid,
legal, effective, genuine, binding, enforceable, sufficient or appropriate for
the represented purpose or that they are other than what they purport to be on
their face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) In performing the reviews contemplated by subsections (a)
and (b) above, the Trustee or a Custodian on its behalf may conclusively rely on
the related Mortgage Loan Seller as to the purported genuineness of any such
document and any signature thereon. It is understood that the scope of the
Trustee's and any Custodian's review of the Mortgage Files is limited solely to
confirming that the documents specified in clauses (i) through (v), (vii),
(viii) and (xiii) of the definition of "Mortgage File" have been received and
such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above.
SECTION 2.03. Certain Repurchases of Mortgage Loans by the
Originators.
(a) If any party hereto discovers, or receives notice from a
non-party, that any document constituting a part of the Mortgage File for any
Mortgage Loan has not been properly executed, is missing, contains information
that does not conform in any material respect with the corresponding information
set forth in the Mortgage Loan Schedule (and the terms of such document have not
been modified by written instrument contained in the Mortgage File), or does
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not appear to be regular on its face (each, a "Document Defect"), or that there
exists a breach of any representation or warranty made by the related Mortgage
Loan Seller with respect to any Mortgage Loan pursuant to Section 4(b) of the
related Mortgage Loan Purchase Agreement (each, a "Breach"), then such party
shall give prompt written notice thereof to the other parties hereto, including
(unless it is the party that discovered the Document Defect or Breach) the
Trustee. Upon the Trustee's discovery or receipt of notice of any such Document
Defect or Breach, the Trustee shall notify the Master Servicer, the Custodian,
the Controlling Class Representative, the Rating Agencies, the Underwriters and
the related Mortgage Loan Seller. If such Document Defect and/or Breach
materially and adversely affects the value of any Mortgage Loan or the interests
of the Certificateholders therein, then such Document Defect shall constitute a
"Material Document Defect" or such Breach shall constitute a "Material Breach",
as the case may be. Without limiting any of the foregoing, the absence of an
original Mortgage Note, an original or a copy of a Mortgage (with or without
evidence of recording thereon) or an original or a copy of a lender's title
insurance policy from a Mortgage File or any material nonconformity to the
Mortgage Loan Schedule of any such document or any material irregularity on the
face thereof (without the presence of any factor, such as the presence of a lost
note affidavit with an indemnity in the case of a missing Mortgage Note or the
presence of a pro forma title policy or a commitment for title insurance
"marked-up" at the closing of the subject Mortgage Loan in the case of a missing
lender's title insurance policy, that in the Trustee's reasonable discretion
reasonably mitigates such absence, non-conformity or irregularity) shall be a
Material Document Defect.
(b) Promptly upon its becoming aware of any Material Document
Defect or Material Breach with respect to any Mortgage Loan, the Trustee shall
direct the related Mortgage Loan Seller that such Mortgage Loan Seller must, not
later than 90 days from the receipt by such Mortgage Loan Seller of such notice,
cure such Material Document Defect or Material Breach, as the case may be, in
all material respects or repurchase the affected Mortgage Loan (as, if and to
the extent required by the related Mortgage Loan Purchase Agreement) at the
applicable Purchase Price; provided that if (i) any such Material Breach or
Material Document Defect does not relate to whether the affected Mortgage Loan
is a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code,
(ii) such Material Breach or Material Document Defect, as the case may be, is
capable of being cured but not within such 90-day period, (iii) the related
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Material Breach or Material Document Defect, as the case may be, within
such 90-day period, and (iv) the related Mortgage Loan Seller shall have
delivered to the Trustee a certification executed on behalf of such Mortgage
Loan Seller by an officer thereof (A) setting forth the reason that such
Material Breach or Material Document Defect, as the case may be, is not capable
of being cured within an initial 90-day period, (B) specifying what actions such
Mortgage Loan Seller is pursuing in connection with the cure thereof and (C)
stating that such Mortgage Loan 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 (a copy of which certification shall be
delivered by the Trustee to the Master Servicer, the Special Servicer and the
Controlling Class Representative), then such Mortgage Loan Seller shall have an
additional 90 days to complete such cure (or, if it fails to complete such cure,
to repurchase the affected Mortgage Loan). If any Mortgage Loan is to be
repurchased as contemplated by this Section 2.03, Trustee shall designate the
Collection Account as the account to which funds in the amount of the applicable
Purchase Price is to be wired, and the Master Servicer shall promptly notify the
Trustee when such deposit is made. Any such repurchase of a Mortgage Loan shall
be on a whole loan, servicing released basis (subject to any rights of a
Designated Sub-
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Servicer to continue to sub-service the Deleted Mortgage Loan as set forth in
any applicable Designated Sub-Servicer Agreement and subject to any rights that
the Master Servicer may have in and to the servicing of the Deleted Mortgage
Loan as set forth in any applicable master servicing rights purchase agreement
or other applicable agreement).
If a Breach or Document Defect exists with respect to any
Mortgage Loan constituting part of a Cross-Collateralized Group, then the
determination as to whether such Breach or Document Defect, as the case may be,
is a Material Breach or a Material Document Defect, as applicable, shall be made
as follows:
(i) if such Mortgage Loan has become a Specially Serviced
Mortgage Loan by reason of such Breach or Document Defect, then based
solely upon such Mortgage Loan and the Mortgaged Property identified on
the Mortgage Loan Schedule as corresponding thereto, without regard to
the cross-collateralization; and
(ii) otherwise, treating such Cross-Collateralized Group as a
single Mortgage Loan secured by all of the related Mortgaged
Properties.
For purposes of applying the remedies contemplated by this Section 2.03(b) in
connection with any Material Breach or Material Document Defect in respect of
any Cross-Collateralized Group or any particular Cross-Collateralized Mortgage
Loan that is part of such Cross-Collateralized Group, such Cross-Collateralized
Group shall be treated as a single Mortgage Loan.
In connection with any repurchase of any of the Mortgage Loans
listed on Exhibit B-1E pursuant to or as contemplated by this Section 2.03(b),
the Tax Administrator shall effect a "qualified liquidation" of the related Loan
REMIC in accordance with the REMIC Provisions.
If any Mortgage Loan is to be repurchased as contemplated by
this Section 2.03, the Trustee shall direct the related Mortgage Loan Seller to
amend the Mortgage Loan Schedule to reflect the removal of the Deleted Mortgage
Loan and deliver the same to the Certificate Administrator. Upon the Certificate
Administrator's receipt from the Mortgage Loan Seller of such amended Mortgage
Loan Schedule, the Certificate Administrator shall deliver or cause the delivery
of such amended Mortgage Loan Schedule to the respective parties hereto and to
the Controlling Class Representative.
(c) Upon receipt of an Officer's Certificate from the Master
Servicer to the effect that the full amount of the Purchase Price for any
Mortgage Loan repurchased by a Mortgage Loan Seller as contemplated by this
Section 2.03 has been deposited in the Collection Account, the Trustee shall (i)
release or cause the release of the Mortgage File and any Additional Collateral
held by or on behalf of the Trustee for the Deleted Mortgage Loan to the
Mortgage Loan Seller effecting the repurchase or its designee and (ii) execute
and deliver such instruments of release, transfer and/or assignment, in each
case without recourse, as shall be provided to it and are reasonably necessary
to vest in the Mortgage Loan Seller effecting the repurchase or its designee the
ownership of the Deleted Mortgage Loan, and the Master Servicer shall notify the
applicable Borrowers of the transfers of the Deleted Mortgage Loan(s). In
connection with any such repurchase by a Mortgage Loan Seller, each of the
Master Servicer and the Special Servicer shall deliver to such Mortgage
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Loan Seller or its designee any portion of the related Servicing File, together
with any Escrow Payments, Reserve Funds and Additional Collateral, held by or on
behalf of the Master Servicer or the Special Servicer, as the case may be, with
respect to the Deleted Mortgage Loan, in each case at the expense of such
Mortgage Loan Seller.
(d) The Mortgage Loan Purchase Agreements provide the sole
remedies available to the Certificateholders, or the Trustee on their behalf,
respecting any Breach or Document Defect. If any Mortgage Loan Seller defaults
on its obligations to repurchase any Mortgage Loan as contemplated by this
Section 2.03, the Master Servicer shall promptly notify the Trustee, and the
Trustee shall notify the Certificateholders. Thereafter, the Trustee shall take
such actions on behalf of the Trust with respect to the enforcement of such
repurchase obligations, including the institution and prosecution of appropriate
legal proceedings, as the Trustee shall determine are in the best interests of
the Certificateholders (taken as a collective whole).
Without limiting the Trustee's duties under this Section
2.03(d), the Trustee hereby irrevocably designates the Master Servicer (in the
case of Performing Mortgage Loans) and the Special Servicer (in the case of
Specially Serviced Mortgage Loans), for the benefit of the Certificateholders,
to enforce (at their respective options after notifying the Trustee) any of the
obligations of each Mortgage Loan Seller (other than a Mortgage Loan Seller that
is an Affiliate of the Master Servicer or the Special Servicer, as the case may
be) under Section 5(a) of the related Mortgage Loan Purchase Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
shall be carried out in such form, to such extent and at such time as the Master
Servicer or the Special Servicer, as the case may be, shall determine are in the
best interests of the Certificateholders (taken as a collective whole). The
Trustee shall retain responsibility for enforcing any of the obligations of a
Mortgage Loan Seller that is an Affiliate of the Master Servicer or the Special
Servicer, as the case may be, under Section 5(a) of the related Mortgage Loan
Purchase Agreement.
(e) The Trustee, the Custodian, the Master Servicer and the
Special Servicer, as the case may be, shall be reimbursed for the reasonable
out-of-pocket expenses, including reasonable attorneys' fees and expenses
related to their obligations set forth in this Section 2.03: first, from a
specific recovery of costs, expenses or attorneys' fees against the applicable
Mortgage Loan Seller ordered or awarded pursuant to an adjudication; second, out
of the related Purchase Price, to the extent that such expenses are a specific
component thereof; and third, if at the conclusion of any enforcement action it
is determined that the amounts described in clauses first and second are
insufficient, then out of general collections on the Mortgage Loans on deposit
in the Collection Account.
SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
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(ii) The Depositor's execution and delivery of, performance
under, and compliance with this Agreement, will not violate the
Depositor'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
other material instrument to which it is a party or by which it is
bound, which default or breach, in the good faith and reasonable
judgment of the Depositor, is likely to affect materially and adversely
either the ability of the Depositor to perform its obligations under
this Agreement or the financial condition of the Depositor.
(iii) The Depositor has the full power and authority to own
its properties, to conduct its business as presently conducted by it
and to enter into and consummate all transactions involving the
Depositor contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Depositor, enforceable against the
Depositor in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution
and delivery of, performance under and compliance with 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 Depositor's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial condition
of the Depositor.
(vi) No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except (A) for those consents, approvals, authorizations or orders that
previously have been obtained, (B) such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
sale of the Certificates by the Underwriters, and (C) any recordation
of the assignments of Mortgage Loan documents to the Trustee pursuant
to Section 2.01(e), which has not yet been completed.
(vii) The Depositor's transfer of the Mortgage Loans to the
Trustee as contemplated herein requires no regulatory approval, other
than any such approvals as have been obtained, and is not subject to
any bulk transfer or similar law in effect in any applicable
jurisdiction.
(viii) The Depositor is not transferring the Mortgage Loans to
the Trustee with any intent to hinder, delay or defraud its present or
future creditors.
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(ix) The Depositor has been solvent at all relevant times
prior to, and will not be rendered insolvent by, its transfer of the
Mortgage Loans to the Trustee pursuant to Section 2.01(b).
(x) After giving effect to its transfer of the Mortgage Loans
to the Trustee pursuant to Section 2.01(b), the value of the
Depositor's assets, either taken at their present fair saleable value
or at fair valuation, will exceed the amount of the Depositor's debts
and obligations, including contingent and unliquidated debts and
obligations of the Depositor, and the Depositor will not be left with
unreasonably small assets or capital with which to engage in and
conduct its business.
(xi) The Depositor 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.
(xii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor that, if
determined adversely to the Depositor, would prohibit the Depositor
from entering into this Agreement or that, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(xiv) Assuming the accuracy of the representations and
warranties of the Mortgage Loan Sellers set forth in their respective
Mortgage Loan Purchase Agreements, immediately prior to the transfer of
the Mortgage Loans to the Trustee for the benefit of the
Certificateholders pursuant to this Agreement, the Depositor had good
and marketable title to, and was the sole owner and holder of, each
Mortgage Loan, and the Depositor has full right and authority to sell,
assign and transfer the Mortgage Loans.
(xv) The Depositor is transferring the Mortgage Loans to the
Trustee for the benefit of the Certificateholders free and clear of any
and all liens, pledges, charges and security interests created by or
through the Depositor.
(xvi) Except for any actions that are the express
responsibility of another party hereunder or under the Mortgage Loan
Purchase Agreements, and further except for actions that the Depositor
is expressly permitted to complete subsequent to the Closing Date, the
Depositor has taken all actions required under applicable law to
effectuate the transfer of the Mortgage Loans by the Depositor to the
Trustee.
(b) The representations and warranties of the Depositor set
forth in Section 2.04(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto and the Controlling Class Representative.
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SECTION 2.05. Representations and Warranties of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to each
of the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Master Servicer is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and the Master Servicer is in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and
to perform its obligations under this Agreement.
(ii) The Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate
the Master Servicer'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 other material instrument to which it is a party or which
is applicable to it or any of its assets, which default or breach, in
the good faith and reasonable judgment of the Master Servicer, is
likely to affect materially and adversely either the ability of the
Master Servicer to perform its obligations under this Agreement or the
financial condition of the Master Servicer.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions involving the Master
Servicer contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with 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 Master Servicer's good faith and reasonable judgment,
is likely to affect materially and adversely either the ability of the
Master Servicer to perform its obligations under this Agreement or the
financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer, the
outcome of which, in the Master Servicer's good faith and reasonable
judgement, would prohibit the Master Servicer from entering into this
Agreement or that, in the Master Servicer's good faith and reasonable
judgment, could reasonably be expected to materially and adversely
affect either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the
Master Servicer.
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(vii) The Master Servicer has errors and omissions insurance
in the amounts and with the coverage required by Section 3.07(d).
(viii) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for
the consummation by the Master Servicer of the transactions
contemplated herein, except for those consents, approvals,
authorizations or orders that previously have been obtained and except
where the lack of such consent, approval, authorization or order would
not have a material adverse effect on the ability of the Master
Servicer to perform its obligations under this Agreement.
(b) The representations and warranties of the Master Servicer
set forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of such foregoing representations and warranties, the
party discovering such breach shall give prompt written notice thereof to the
other parties hereto and the Controlling Class Representative.
(c) Any successor Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.05(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.05(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.06. Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Special Servicer is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and the Special Servicer is in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and
to perform its obligations under this Agreement.
(ii) The Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate
the Special Servicer'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 other instrument to which it is a party or which is
applicable to it or any of its assets, which default or breach, in the
good faith and reasonable judgment of the Special Servicer, is likely
to affect materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions involving the Special
Servicer contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
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(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of, performance under 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 Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Special Servicer to perform its obligations
under this Agreement or the financial condition of the Special
Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer, the
outcome of which, in the Special Servicer's good faith and reasonable
judgement, would prohibit the Special Servicer from entering into this
Agreement or, in the Special Servicer's good faith and reasonable
judgment, could reasonably be expected to materially and adversely
affect either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the
Special Servicer.
(vii) The Special Servicer has errors and omissions insurance
in the amounts and with the coverage required by Section 3.07(d).
(viii) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for
the consummation by the Special Servicer of the transactions
contemplated herein, except for those consents, approvals,
authorizations or orders that previously have been obtained and except
where the lack of such consent, approval, authorization or order would
not have a material adverse effect on the ability of the Special
Servicer to perform its obligations under this Agreement.
(b) The representations and warranties of the Special Servicer
set forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto and the Controlling Class Representative.
(c) Any successor Special Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.06(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.06(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
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SECTION 2.07. Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to, and
covenants with, each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is duly organized and validly existing as a
national banking association under the laws of the United States and
is, shall be or, if necessary, shall appoint a co-trustee that is, in
compliance with the laws of each State in which any Mortgaged Property
is located to the extent necessary to ensure the enforceability of each
Mortgage Loan (insofar as such enforceability is dependent upon
compliance by the Trustee with such laws) and to perform its
obligations under this Agreement.
(ii) The Trustee's execution and delivery of, performance
under and compliance with this Agreement, will not violate the
Trustee'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 a material breach of, any material
agreement or other material instrument to which it is a party or by
which it is bound, which default or breach, in the good faith and
reasonable judgment of the Trustee is likely to affect materially and
adversely either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
(iii) The Trustee 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.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Trustee, enforceable against the
Trustee in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights
of creditors of banks, and (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or
at law.
(v) The Trustee is not in violation of, and its execution and
delivery of, performance under and compliance with 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 Trustee's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition
of the Trustee.
(vi) No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein,
except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of the
Trustee's knowledge, threatened against the Trustee that, if determined
adversely to the Trustee, would prohibit the Trustee
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from entering into this Agreement or that, in the Trustee's good faith
and reasonable judgment, is likely to materially and adversely affect
either the ability of the Trustee to perform its obligations under this
Agreement or the financial condition of the Trustee.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations and warranties of the Trustee set
forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any such representations and warranties, the party
discovering such breach shall give prompt written notice thereof to the other
parties hereto and the Controlling Class Representative.
(c) Any successor Trustee shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 2.07(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.07(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.08. Designation of the Certificates.
(a) The Certificates shall consist of 18 Classes hereby
designated as the "Class X Certificates", the "Class A-1 Certificates", the
"Class A-2 Certificates", the "Class B Certificates", the "Class C
Certificates", the "Class D Certificates", the "Class E Certificates", the
"Class F Certificates", the "Class G Certificates", the "Class H Certificates",
the "Class J Certificates", the "Class K Certificates", the "Class L
Certificates, the "Class M Certificates", the "Class N Certificates", the "Class
P Certificates", the "Class Y Certificates" and the "Class R Certificates",
respectively.
(b) The Class A-1 and Class A-2 Certificates are collectively
designated as the "Class A Certificates".
(c) The Class X, Class A-1 and Class A-2 Certificates are
collectively designated as the "Senior Certificates".
(d) The Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class P and Class R
Certificates are collectively designated as the "Subordinate Certificates".
(e) The Class A, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class P
Certificates are collectively designated as the "Principal Balance
Certificates".
(f) The Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N and Class P Certificates
are collectively designated as the "Subordinate Principal Balance Certificates".
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(g) The Class X Certificates are also designated as the
"Interest Only Certificates".
(h) The Interest Only Certificates and the Principal Balance
Certificates are collectively designated as the "REMIC III Regular Interest
Certificates".
SECTION 2.09. Creation of REMIC I; Issuance of the REMIC I
Regular Interests and the REMIC I Residual
Interest; Certain Matters Involving REMIC I and
the Loan REMICs.
(a) It is the intention of the parties hereto that the
following segregated pool of assets constitute a REMIC for federal income tax
purposes and, further, that such segregated pool of assets be designated as
"REMIC I": (i) the Mortgage Loans that are from time to time subject to this
Agreement (other than those Mortgage Loans that are, in each case, held by a
Loan REMIC), together with (A) all payments under and proceeds of such Mortgage
Loans received after the Closing Date (other than scheduled payments of interest
and principal due on or before the Cut-off Date, and exclusive of any amounts
that constitute Post-ARD Additional Interest collected in respect of the ARD
Loans after their respective Anticipated Repayment Dates), (B) all Principal
Prepayments and corresponding interest payments on the Mortgage Loans received
after the Cut-off Date through and including the Closing Date, and (C) all
documents included in the related Mortgage Files and Servicing Files and any
related Additional Collateral; (ii) any REO Property acquired in respect of a
Mortgage Loan (other than a Mortgage Loan that had been held by a Loan REMIC);
(iii) such funds and assets as from time to time are deposited in the Collection
Account, the Distribution Account, the Interest Reserve Account, the Gain on
Sale Reserve Fund and, if established, the REO Account (exclusive of any amounts
that constitute Post-ARD Additional Interest collected in respect of the ARD
Loans after their respective Anticipated Repayment Dates); (iv) the rights of
the Depositor under each Mortgage Loan Purchase Agreement and (v) the Loan REMIC
Regular Interests and all payments under and proceeds of such Loan REMIC Regular
Interest received after the Closing Date. The Closing Date is hereby designated
as the "Startup Day" of REMIC I within the meaning of Section 860G(a)(9) of the
Code.
A Loan REMIC Declaration has been made with respect to each of
the Mortgage Loans listed on Exhibit B-1E hereto. In the case of each such
Mortgage Loan, the related Loan REMIC will include such Mortgage Loan and any
REO Property acquired in respect of such Mortgage Loan. The "Startup Day" for
each Loan REMIC within the meaning of Section 860G(a)(9) of the Code, is
designated in the related Loan REMIC Declaration.
(b) Concurrently with the assignment of the Mortgage Loans
(or, in the case of each of the Mortgage Loans listed on Exhibit B-1E hereto,
the related Loan REMIC Regular Interests) and certain related assets to the
Trustee pursuant to Section 2.01(b) and in exchange therefor, the REMIC I
Regular Interests and the REMIC I Residual Interest shall be issued. A separate
REMIC I Regular Interest shall be issued with respect to each Mortgage Loan and
Loan REMIC Regular Interest that is an asset of REMIC I. For purposes of this
Agreement, each REMIC I Regular Interest shall relate to the Mortgage Loan with
respect to which it was issued (or, if applicable, to the Loan REMIC Regular
Interest in respect of which it was issued and also to the corresponding
Mortgage Loan) and to each REO Mortgage Loan deemed outstanding with respect to
any REO Property acquired in respect of any such Mortgage Loan. Neither the
REMIC I
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Residual Interest nor any of the REMIC I Regular Interests shall be
certificated. The REMIC I Regular Interests and the REMIC I Residual Interest
shall collectively constitute the entire beneficial ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the REMIC I Residual Interest shall constitute the sole "residual interest"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC I. Each Loan
REMIC Regular Interest shall constitute the "regular interest" (within the
meaning of Section 860G(a)(1) of the Code), and each Loan REMIC Residual
Interest shall constitute the sole "residual interest" (within the meaning of
Section 860G(a)(2) of the Code), in the related Loan REMIC. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC I or any Loan REMIC (within the
meaning of Treasury regulation section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be
the identification number for the related Mortgage Loan set forth in the
Mortgage Loan Schedule.
(e) Each REMIC I Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Principal Balance
of the related Mortgage Loan (as specified in the Mortgage Loan Schedule). On
each Distribution Date, the Uncertificated Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by any distributions of principal
deemed made with respect to such REMIC I Regular Interest on such Distribution
Date pursuant to Section 4.01(l) and, further, by any Unfunded Principal Balance
Reduction made with respect to such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.04(c). Except as provided in the
preceding sentence, the Uncertificated Principal Balance of each REMIC I Regular
Interest shall not otherwise be increased or reduced. Deemed distributions to
REMIC II in reimbursement of Unfunded Principal Balance Reductions with respect
to a REMIC I Regular Interest shall not constitute deemed distributions of
principal and shall not result in any reduction of the Uncertificated Principal
Balance of such REMIC I Regular Interest.
(f) Each REMIC I Regular Interest shall have a REMIC I
Remittance Rate. The REMIC I Remittance Rate with respect to any particular
REMIC I Regular Interest for any Interest Accrual Period shall be calculated as
follows:
(i) if, as of the Closing Date, the related Mortgage Loan
bears or bore, as the case may be, interest calculated on a 30/360
Basis, then the REMIC I Remittance Rate with respect to the subject
REMIC I Regular Interest for any Interest Accrual Period shall equal
the Net Mortgage Rate in effect for the related Mortgage Loan as of the
Closing Date; and
(ii) if, as of the Closing Date, the related Mortgage Loan
bears or bore, as the case may be, interest calculated on an Actual/360
Basis, then the REMIC I Remittance Rate with respect to the subject
REMIC I Regular Interest for any Interest Accrual Period shall (subject
to adjustment as provided below) equal the product of (A) a fraction
(expressed as a percentage), the numerator of which is the number of
days in such Interest Accrual Period, and the denominator of which is
30, multiplied by (B) the Net Mortgage Rate in effect for the related
Mortgage Loan as of the Closing Date; provided that, in the case of a
REMIC I
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Regular Interest that corresponds to an Interest Reserve Loan, if the
subject Interest Accrual Period occurs during January 2001 or during
January of any year thereafter or during December 2000 or during
December of any year thereafter that does not immediately precede a
leap year, the REMIC I Remittance Rate with respect to such REMIC I
Regular Interest for such Interest Accrual Period shall equal (M) the
REMIC I Remittance Rate with respect to such REMIC I Regular Interest
for such Interest Accrual Period, calculated without regard to this
proviso, minus (N) a fraction (expressed as a percentage), the
numerator of which is equal to 12 times the related Interest Reserve
Amount that is to be transferred from the Distribution Account to the
Interest Reserve Account in the following calendar month in accordance
with Section 3.04(c), and the denominator of which is equal to the
Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date; and,
provided, further, that, in the case of a REMIC I Regular Interest that
corresponds to an Interest Reserve Loan, if the subject Interest
Accrual Period occurs during February of any year, the REMIC I
Remittance Rate with respect to such REMIC I Regular Interest for such
Interest Accrual Period shall equal (S) the REMIC I Remittance Rate
with respect to such REMIC I Regular Interest for such Interest Accrual
Period, calculated without regard to this proviso, plus (T) a fraction
(expressed as a percentage), the numerator of which is equal to 12
times any related Interest Reserve Amount(s) to be transferred from the
Interest Reserve Account to the Distribution Account pursuant to
Section 3.05(c) for distribution on the related Distribution Date, and
the denominator of which is equal to the Uncertificated Principal
Balance of such REMIC I Regular Interest outstanding immediately prior
to the related Distribution Date.
(g) Each REMIC I Regular Interest shall bear interest, and
such interest shall commence accruing on the Cut-off Date. In the case of each
REMIC I Regular Interest, such interest shall be calculated on a 30/360 Basis
and, during each Interest Accrual Period, shall accrue at the REMIC I Remittance
Rate with respect to such REMIC I Regular Interest for such Interest Accrual
Period on the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date. The total amount
of such interest accrued with respect to each REMIC I Regular Interest during
each Interest Accrual Period (herein referred to as the "Interest Accrual
Amount" with respect to such REMIC I Regular Interest for such Interest Accrual
Period) shall equal 1/12 of the product of (i) the REMIC I Remittance Rate with
respect to such REMIC I Regular Interest for such Interest Accrual Period,
multiplied by (ii) the Uncertificated Principal Balance of such REMIC I Regular
Interest outstanding immediately prior to the related Distribution Date. The
portion of the Interest Accrual Amount with respect to any REMIC I Regular
Interest for any Interest Accrual Period that shall be distributable to REMIC
II, as the holder of such REMIC I Regular Interest, on the related Distribution
Date pursuant to Section 4.01(l), shall be an amount (herein referred to as the
"Current Interest Distribution Amount" with respect to such REMIC I Regular
Interest for the related Distribution Date) equal to (i) the Interest Accrual
Amount with respect to such REMIC I Regular Interest for the related Interest
Accrual Period, reduced (to not less than zero) by (ii) the portion of any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date that is
allocable to such REMIC I Regular Interest. For purposes of the foregoing, the
Net Aggregate Prepayment Interest Shortfall, if any, for each Distribution Date
shall be allocated among all the REMIC I Regular Interests on a pro rata basis
in accordance with their respective Interest Accrual Amounts for the related
Interest Accrual Period. If the entire Current Interest Distribution Amount with
respect to any REMIC I Regular Interest for any Distribution Date is not deemed
distributed to REMIC II, as the holder of such REMIC I
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Regular Interest, on such Distribution Date pursuant to Section 4.01(l), then
the unpaid portion of such Current Interest Distribution Amount shall be added
to, and be payable as part of, the Carryforward Interest Distribution Amount
with respect to such REMIC I Regular Interest for future Distribution Dates. The
"Carryforward Interest Distribution Amount" with respect to any REMIC I Regular
Interest for any Distribution Date is the excess, if any, of (i) all Current
Interest Distribution Amounts with respect to such REMIC I Regular Interest for
all prior Distribution Dates, if any, over (ii) the total amount of interest
deemed distributed to REMIC II with respect to such REMIC I Regular Interest on
all such prior Distribution Dates, if any, pursuant to Section 4.01(l).
(h) Solely for purposes of satisfying Treasury regulation
section 1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I
Regular Interest shall be the Rated Final Distribution Date. The Latest Possible
Maturity Date for each Loan REMIC Regular Interest shall be the Stated Maturity
Date for the related Mortgage Loan.
(i) Neither the REMIC I Residual Interest nor any Loan REMIC
Residual Interest shall have a principal balance or bear interest.
SECTION 2.10. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC I Regular Interests by
Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all of its right, title and interest in and to the REMIC I Regular
Interests to the Trustee for the benefit of the REMIC III Regular Interest
Certificateholders and the Class R Certificateholders. The Trustee acknowledges
the assignment to it of the REMIC I Regular Interests and declares that it holds
and will hold the same in trust for the exclusive use and benefit of all present
and future REMIC III Regular Interest Certificateholders and Class R
Certificateholders.
SECTION 2.11. Creation of REMIC II; Issuance of the REMIC II
Regular Interests and the REMIC II Residual
Interest; Certain Matters Involving REMIC II.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of the REMIC I Regular Interests constitute
a REMIC for federal income tax purposes and, further, that such segregated pool
of assets be designated as "REMIC II". The Closing Date is hereby designated as
the "Startup Day" of REMIC II within the meaning of Section 860G(a)(9) of the
Code.
(b) Concurrently with the assignment of the REMIC I Regular
Interests to the Trustee pursuant to Section 2.10 and in exchange therefor, the
REMIC II Regular Interests and the REMIC II Residual Interest shall be issued.
There shall be 15 separate REMIC II Regular Interests. Neither the REMIC II
Residual Interest nor any of the REMIC II Regular Interests shall be
certificated. The REMIC II Regular Interests and the REMIC II Residual Interest
shall collectively constitute the entire beneficial ownership of REMIC II.
(c) The REMIC II Regular Interests shall constitute the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the REMIC II Residual Interest shall
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constitute the sole "residual interest" (within the meaning of Section
860G(a)(2) of the Code), in REMIC II. None of the parties hereto, to the extent
it is within the control thereof, shall create or permit the creation of any
other "interests" in REMIC II (within the meaning of Treasury regulation section
1.860D-1(b)(1)).
(d) The REMIC II Regular Interests are hereby designated as
"REMIC II Regular Interest A-1", "REMIC II Regular Interest A-2", "REMIC II
Regular Interest B", "REMIC II Regular Interest C", "REMIC II Regular Interest
D", "REMIC II Regular Interest E", "REMIC II Regular Interest F", "REMIC II
Regular Interest G", "REMIC II Regular Interest H", "REMIC II Regular Interest
J", "REMIC II Regular Interest K", "REMIC II Regular Interest L", "REMIC II
Regular Interest M", "REMIC II Regular Interest N" and "REMIC II Regular
Interest P", respectively.
(e) Each REMIC II Regular Interest shall have an
Uncertificated Principal Balance. The following table sets forth for each REMIC
II Regular Interest the initial Uncertificated Principal Balance thereof:
<TABLE>
<CAPTION>
DESIGNATION OF INITIAL UNCERTIFICATED
REMIC II REGULAR INTEREST PRINCIPAL BALANCE
------------------------- -----------------
<S> <C>
A-1 $114,610,000
A-2 $483,255,000
B $ 33,214,000
C $ 33,215,000
D $ 7,815,000
E $ 11,723,000
F $ 13,677,000
G $ 9,769,000
H $ 21,492,000
J $ 13,677,000
K $ 5,861,000
L $ 5,861,000
M $ 8,792,000
N $ 6,839,000
P $ 11,723,168
</TABLE>
On each Distribution Date, the Uncertificated Principal
Balance of each REMIC II Regular Interest shall be permanently reduced by any
distributions of principal deemed made with respect to such REMIC II Regular
Interest on such Distribution Date pursuant to Section 4.01(k) and, further, by
any Unfunded Principal Balance Reduction made with respect to such REMIC II
Regular Interest on such Distribution Date pursuant to Section 4.04(b). Except
as provided in the preceding sentence, the Uncertificated Principal Balance of
each REMIC II Regular Interest shall not otherwise be increased or decreased.
Deemed distributions to REMIC III in reimbursement of Unfunded Principal Balance
Reductions with respect to a REMIC II Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
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(f) Each REMIC II Regular Interest shall have a REMIC II
Remittance Rate that, with respect to any Interest Accrual Period, shall equal
the weighted average, expressed as a percentage and rounded to eight decimal
places, of the respective REMIC I Remittance Rates in effect for all the REMIC I
Regular Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated Principal Balances of such REMIC I Regular Interests
outstanding immediately prior to the related Distribution Date.
(g) Each REMIC II Regular Interest shall bear interest, and
such interest shall commence accruing on the Cut-off Date. In the case of each
REMIC II Regular Interest, such interest shall be calculated on a 30/360 Basis
and, during each Interest Accrual Period, shall accrue at the REMIC II
Remittance Rate with respect to such REMIC II Regular Interest for such Interest
Accrual Period on the Uncertificated Principal Balance of such REMIC II Regular
Interest outstanding immediately prior to the related Distribution Date. The
total amount of such interest accrued with respect to each REMIC II Regular
Interest during each Interest Accrual Period (herein referred to as the
"Interest Accrual Amount" with respect to such REMIC II Regular Interest for
such Interest Accrual Period) shall equal 1/12 of the product of (i) the REMIC
II Remittance Rate with respect to such REMIC II Regular Interest for such
Interest Accrual Period, multiplied by (ii) the Uncertificated Principal Balance
of such REMIC II Regular Interest outstanding immediately prior to the related
Distribution Date. The portion of the Interest Accrual Amount with respect to
any REMIC II Regular Interest for any Interest Accrual Period that shall be
distributable to REMIC III, as the holder of such REMIC II Regular Interest, on
the related Distribution Date pursuant to Section 4.01(k), shall be an amount
(herein referred to as the "Current Interest Distribution Amount" with respect
to such REMIC II Regular Interest for the related Distribution Date) equal to
(i) the Interest Accrual Amount with respect to such REMIC II Regular Interest
for the related Interest Accrual Period, reduced (to not less than zero) by (ii)
the portion of any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date that is allocable to such REMIC II Regular Interest. For
purposes of the foregoing, the Net Aggregate Prepayment Interest Shortfall, if
any, for each Distribution Date shall be allocated among all the REMIC II
Regular Interests on a pro rata basis in accordance with their respective
Interest Accrual Amounts for the related Interest Accrual Period. If the entire
Current Interest Distribution Amount with respect to any REMIC II Regular
Interest for any Distribution Date is not deemed distributed to REMIC III, as
the holder of such REMIC II Regular Interest, on such Distribution Date pursuant
to Section 4.01(k), then the unpaid portion of such Current Interest
Distribution Amount shall be added to, and be payable as part of, the
Carryforward Interest Distribution Amount with respect to such REMIC II Regular
Interest for future Distribution Dates. The "Carryforward Interest Distribution
Amount" with respect to any REMIC II Regular Interest for any Distribution Date
is the excess, if any, of (i) all Current Interest Distribution Amounts with
respect to such REMIC II Regular Interest for all prior Distribution Dates, if
any, over (ii) the total amount of interest deemed distributed to REMIC III with
respect to such REMIC II Regular Interest on all such prior Distribution Dates,
if any, pursuant to Section 4.01(k).
(h) Solely for purposes of satisfying Treasury Regulation
Section 1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II
Regular Interest shall be the Rated Final Distribution Date.
(i) The REMIC II Residual Interest shall not have a principal
balance and shall not bear interest.
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SECTION 2.12. Conveyance of REMIC II Regular Interests;
Acceptance of REMIC II Regular Interests by
Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all of its right, title and interest in and to the REMIC II Regular
Interests to the Trustee for the benefit of the REMIC III Regular Interest
Certificateholders and the Class R Certificateholders. The Trustee acknowledges
the assignment to it of the REMIC II Regular Interests and declares that it
holds and will hold the same in trust for the exclusive use and benefit of all
present and future REMIC III Regular Interest Certificateholders and Class R
Certificateholders.
SECTION 2.13. Creation of REMIC III; Issuance of the REMIC III
Regular Interest Certificates and the REMIC III
Residual Interest; Certain Matters Involving
REMIC III.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of the REMIC II Regular Interests
constitute a REMIC for federal income tax purposes and, further, that such
segregated pool of assets be designated as "REMIC III". The Closing Date is
hereby designated as the "Startup Day" of REMIC III within the meaning of
Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II Regular
Interests to the Trustee pursuant to Section 2.12 and in exchange therefor, the
REMIC III Residual Interest shall be issued, and the Certificate Registrar shall
execute, authenticate and deliver, to or upon the order of the Depositor, the
REMIC III Regular Interest Certificates in authorized denominations. There shall
be 16 Classes of REMIC III Regular Interest Certificates. The REMIC III Residual
Interest shall not be certificated. The interests evidenced by the REMIC III
Regular Interest Certificates, together with the REMIC III Residual Interest,
shall collectively constitute the entire beneficial ownership of REMIC III.
(c) The respective Classes of the REMIC III Regular Interest
Certificates shall constitute the "regular interests" (within the meaning of
Section 860G(a)(1) of the Code), and the REMIC III Residual Interest shall
constitute the sole "residual interest" (within the meaning of Section
860(G)(a)(2) of the Code), in REMIC III. None of the parties hereto, to the
extent it is within the control thereof, shall create or permit the creation of
any other "interests" in REMIC III (within the meaning of Treasury regulation
section 1.860D-1(b)(1)).
(d) The designations for the respective classes of the REMIC
III Regular Interest Certificates are specified in Section 2.08.
(e) Each Class of Principal Balance Certificates shall have a
Class Principal Balance. The following table sets forth for each Class of
Principal Balance Certificates the initial Class Principal Balance thereof.
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<TABLE>
<CAPTION>
CLASS INITIAL CLASS
DESIGNATION PRINCIPAL BALANCE
----------- -----------------
<S> <C>
Class A-1 $114,610,000
Class A-2 $483,255,000
Class B $ 33,214,000
Class C $ 33,215,000
Class D $ 7,815,000
Class E $ 11,723,000
Class F $ 13,677,000
Class G $ 9,769,000
Class H $ 21,492,000
Class J $ 13,677,000
Class K $ 5,861,000
Class L $ 5,861,000
Class M $ 8,792,000
Class N $ 6,839,000
Class P $ 11,723,168
</TABLE>
On each Distribution Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall be permanently reduced by any
distributions of principal made with respect to such Class of Certificates on
such Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), as
applicable, and, further, by any Unfunded Principal Balance Reduction made with
respect to such Class of Certificates on such Distribution Date pursuant to
Section 4.04(a). Except as provided in the preceding sentence, the Class
Principal Balance of each Class of Principal Balance Certificates shall not
otherwise be increased or reduced. Distributions to the Holders of any Class of
Principal Balance Certificates in reimbursement of any Unfunded Principal
Balance Reductions with respect to such Class of Certificates shall not
constitute distributions of principal and shall not result in any reduction of
the related Class Principal Balance.
The Class X Certificates shall not have a principal balance.
For purposes of accruing interest, however, the Class X Certificates shall have
a Class Notional Amount that is, as of any date of determination, equal to the
total of the then Uncertificated Principal Balances of all the REMIC II Regular
Interests.
(f) Each Class of REMIC III Regular Interest Certificates
shall have a Pass-Through Rate.
The Pass-Through Rate with respect to each Class of Principal
Balance Certificates for any Interest Accrual Period shall be as follows:
(i) in the case of the Class A-1 Certificates, 7.298% per
annum;
(ii) in the case of the Class A-2 Certificates, 7.455% per
annum;
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(iii) in the case of the Class B Certificates, the lesser
of (A) 7.526% per annum and (B) the REMIC II
Remittance Rate with respect to REMIC II Regular
Interest B for such Interest Accrual Period;
(iv) in the case of the Class C Certificates, the lesser
of (A) 7.727% per annum and (B) the REMIC II
Remittance Rate with respect to REMIC II Regular
Interest C for such Interest Accrual Period;
(v) in the case of the Class D Certificates, the lesser
of (A) 7.834% per annum and (B) the REMIC II
Remittance Rate with respect to REMIC II Regular
Interest D for such Interest Accrual Period;
(vi) in the case of the Class E Certificates, the lesser
of (A) 8.193% per annum and (B) the REMIC II
Remittance Rate with respect to REMIC II Regular
Interest E for such interest Accrual Period;
(vii) in the case of the Class F Certificates, the lesser
of (A) 8.200% per annum and (B) the REMIC II
Remittance Rate with respect to REMIC II Regular
Interest F for such Interest Accrual Period; and
(viii) in the case of the Class G Certificates, the REMIC II
Remittance Rate with respect to REMIC II Regular
Interest G for such Interest Accrual Period;
(ix) in the case of the Class H Certificates 6.308% per
annum;
(x) in the case of the Class J Certificates 6.308% per
annum;
(xi) in the case of the Class K Certificates 6.308% per
annum;
(xii) in the case of the Class L Certificates 6.308% per
annum;
(xiii) in the case of the Class M Certificates 6.308% per
annum;
(xiv) in the case of the Class N Certificates 6.808% per
annum;
(xv) in the case of the Class P Certificates 6.808% per
annum.
With respect to the Class X Certificates, the related
Pass-Through Rate for each Interest Accrual Period shall be a rate per annum
equal to the excess, if any, of (i) the weighted average of the respective REMIC
II Remittance Rates in effect during such Interest Accrual Period in respect of
all of the REMIC II Regular Interests, over (ii) the weighted average of the
respective Adjusted REMIC II Remittance Rates in effect during such Interest
Accrual Period in respect of all of the REMIC II Regular Interests. For purposes
of the foregoing, the relevant weighting shall be based on the Uncertificated
Principal Balance of each REMIC II Regular Interest immediately prior to the
related Distribution Date.
(g) Each Class of REMIC III Regular Interest Certificates
shall bear interest, and such interest shall commence accruing on the Cut-off
Date. In the case of each Class of REMIC III
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Regular Interest Certificates, such interest shall be calculated on a 30/360
Basis and, during each Interest Accrual Period, shall accrue at the Pass-Through
Rate with respect to such Class of Certificates for such Interest Accrual Period
on the Class Principal Balance (or, in the case of the Class X Certificates, the
Class Notional Amount) of such Class of Certificates outstanding immediately
prior to the related Distribution Date. The total amount of such interest
accrued with respect to each Class of REMIC III Regular Interest Certificates
during each Interest Accrual Period (herein referred to as the "Interest Accrual
Amount" with respect to such Class of Certificates for such Interest Accrual
Period) shall equal 1/12 of the product of (i) the Pass-Through Rate with
respect to such Class of Certificates for such Interest Accrual Period,
multiplied by (ii) the Class Principal Balance (or, in the case of the Class X
Certificates, the Class Notional Amount) of such Class of Certificates
outstanding immediately prior to the related Distribution Date. The portion of
the Interest Accrual Amount with respect to any Class of REMIC III Regular
Interest Certificates for any Interest Accrual Period that shall be
distributable to the Holders thereof on the related Distribution Date pursuant
to Section 4.01(a) or Section 4.01(b), as applicable, shall be an amount (herein
referred to as the "Current Interest Distribution Amount" with respect to such
Class of Certificates for the related Distribution Date) equal to (i) the
Interest Accrual Amount with respect to such Class of Certificates for the
related Interest Accrual Period, reduced (to not less than zero) by (ii) the
portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date that is allocable to such Class of Certificates. For purposes of the
foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated among all the Classes of REMIC III Regular
Interest Certificates on a pro rata basis in accordance with their respective
Interest Accrual Amounts for the related Interest Accrual Period. If the entire
Current Interest Distribution Amount with respect to any Class of REMIC III
Regular Interest Certificates for any Distribution Date is not distributed to
the Holders thereof on such Distribution Date pursuant to Section 4.01(a) or
Section 4.01(b), as applicable, then the unpaid portion of such Current Interest
Distribution Amount shall be added to, and be payable as part of, the
Carryforward Interest Distribution Amount with respect to such Class of
Certificates for future Distribution Dates. The "Carryforward Interest
Distribution Amount" with respect to any Class of REMIC III Regular Interest
Certificates for any Distribution Date is the excess, if any, of (i) all Current
Interest Distribution Amounts with respect to such Class of Certificates for all
prior Distribution Dates, if any, over (ii) the total amount of interest
distributed to the Holders of such Class of Certificates on all such prior
Distribution Dates, if any, pursuant to Section 4.01(a) or Section 4.01(b), as
applicable.
(h) Solely for purposes of satisfying Treasury regulation
section 1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of
REMIC III Regular Interest Certificates shall be the Rated Final Distribution
Date.
(i) The REMIC III Residual Interest shall not have a principal
balance and shall not bear interest.
SECTION 2.14. Acceptance of Grantor Trusts by Trustee;
Issuance of the Class Y and Class R
Certificates.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of any collections of Post-ARD Additional
Interest received on the ARD Loans constitute a Grantor Trust for federal income
tax purposes and, further, that such segregated pool of
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assets be designated as "Grantor Trust Y". The Trustee, by its execution and
delivery hereof, acknowledges the assignment to it of the assets of Grantor
Trust Y and declares that it will hold such assets in trust for the exclusive
use and benefit of all present and future Holders of the Class Y Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
Y, the Certificate Registrar shall execute, authenticate and deliver, to or upon
the order of the Depositor, the Class Y Certificates in authorized denominations
evidencing the entire beneficial ownership of Grantor Trust Y. The rights of the
Holders of the Class Y Certificates to receive distributions from the proceeds
of Grantor Trust Y, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
(b) The Depositor, as of the Closing Date, and concurrently
with the execution and delivery of this Agreement, does hereby assign without
recourse, all right, title and interest of the Depositor in and to the REMIC I
Residual Interest, the REMIC II Residual Interest, the REMIC III Residual
Interest and the Loan REMIC Residual Interests to the Trustee for the benefit of
the Holders of the Class R Certificates. It is the intention of the parties
hereto that the segregated pool of assets consisting of the REMIC I Residual
Interest, the REMIC II Residual Interest, the REMIC III Residual Interest and
the Loan REMIC Residual Interests constitute a Grantor Trust for federal income
tax purposes and, further, that such segregated pool of assets be designated as
"Grantor Trust R". The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets of Grantor Trust R and declares
that it will hold such assets in trust for the exclusive use and benefit of all
present and future Holders of the Class R Certificates. Concurrently with the
assignment to it of the assets included in Grantor Trust R, the Certificate
Registrar shall execute, authenticate and deliver, to or upon the order of the
Depositor, the Class R Certificates in authorized denominations evidencing the
entire beneficial ownership of Grantor Trust R. The rights of the Holders of the
Class R Certificates to receive distributions from the proceeds of Grantor Trust
R, and all ownership interests of such Holders in and to such distributions,
shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans and any REO Properties that it is
obligated to service and administer pursuant to this Agreement, for the benefit
of the Certificateholders (as a collective whole) (as determined by the Master
Servicer or the Special Servicer, as the case may be, in its good faith and
reasonable judgment), in accordance with any and all applicable laws, in
accordance with the express terms of this Agreement, the respective Mortgage
Loans and, in the case of a CTL Loan, any related Lease Enhancement Policy and,
to the extent consistent with the foregoing, in accordance with the Servicing
Standard. The Master Servicer or Special Servicer, as applicable in accordance
with this Agreement, shall service and administer each Cross-Collateralized
Group as a single Mortgage Loan as and when necessary and appropriate consistent
with the Servicing Standard and applicable law and in accordance with this
Agreement. Without limiting the foregoing, and subject to Section 3.21, (i) the
Master Servicer shall service and administer all Performing Mortgage Loans, and
(ii) the Special Servicer shall service and administer (x) each Mortgage Loan as
to which a Servicing Transfer Event has occurred and is continuing, and (y) each
REO Property; provided, however, that the Master Servicer shall continue to
collect information and, subject to its receipt of information from the Special
Servicer as provided herein, prepare all reports to the Trustee required
hereunder with respect to any Specially Serviced Mortgage Loans and REO
Properties (and the related REO Mortgage Loans), to process payments at the
direction of the Special Servicer, and to render such incidental services with
respect to any Specially Serviced Mortgage Loans and REO Properties as are
specifically provided for herein; and provided, further, that the Special
Servicer shall render such incidental services with respect to any Performing
Mortgage Loans as are specifically provided for herein. The Master Servicer
shall not, on behalf of the Trust, obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a), the Master Servicer and the
Special Servicer shall each have full power and authority, acting alone or
through Sub-Servicers, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicer and the Special Servicer, in its own name, with respect to each of the
Mortgage Loans it is obligated to service hereunder, is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them: (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and other related
collateral; and (ii) any and all instruments of satisfaction or cancellation, or
of partial or full release or discharge, and all other comparable instruments.
In addition, without limiting the generality of the foregoing, each of the
Master Servicer and Special Servicer is authorized and empowered by the Trustee
to execute and deliver, in accordance with the Servicing Standard and subject to
Sections 3.08 and 3.20, any and all assumptions, modifications, waivers,
amendments or consents to or with respect to any documents contained in the
related Mortgage File.
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Subject to Section 3.10, the Trustee shall, at the written request of a
Servicing Officer of the Master Servicer or the Special Servicer, furnish, or
cause to be so furnished, to the Master Servicer or the Special Servicer, as
appropriate, any limited powers of attorney and other documents (each of which
shall be prepared by the Master Servicer or Special Servicer, as applicable)
necessary or appropriate to enable it to carry out its servicing and
administrative duties hereunder; provided, however, that the Trustee shall not
be held liable for any misuse of any such power of attorney by the Master
Servicer or the Special Servicer.
(c) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee and, unless they are the same Person, each other
under this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The Master Servicer and the Special Servicer shall each
undertake reasonable efforts consistent with the Servicing Standard to collect
all payments called for under the terms and provisions of the Mortgage Loans it
is obligated to service hereunder and shall follow such collection procedures as
are consistent with applicable law and the Servicing Standard; provided,
however, that neither the Master Servicer nor the Special Servicer shall, with
respect to any ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Post-ARD Additional Interest
(other than the making of requests for its collection), unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Post-ARD Additional Interest, also
necessary, appropriate and consistent with the Servicing Standard or (ii) all
other amounts due under such Mortgage Loan have been paid, the payment of such
Post-ARD Additional Interest has not been forgiven in accordance with Section
3.20 and, in the good faith and reasonable judgment of the Special Servicer, the
Liquidation Proceeds expected to be recovered in connection with such
enforcement action will cover the anticipated costs of such enforcement action
and, if applicable, any associated Advance Interest. Consistent with the
foregoing, the Master Servicer (as to Performing Mortgage Loans) and the Special
Servicer (as to Specially Serviced Mortgage Loans) each may waive any Default
Charges in connection with any specific delinquent payment on a Mortgage Loan it
is obligated to service hereunder.
(b) Six months prior to the maturity date of each Balloon
Mortgage Loan, the Master Servicer shall send a notice to the related Borrower
of such maturity date and shall request confirmation that the Balloon Payment
will be paid by such date.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall establish and maintain one or
more accounts (the "Servicing Accounts"), in which all Escrow Payments received
by it with respect to the Mortgage Loans shall be deposited and retained.
Subject to any terms of the related Mortgage Loan documents that specify the
nature of the account in which Escrow Payments shall be held, each Servicing
Account shall be an Eligible Account. Withdrawals of amounts so collected in
respect of any Mortgage Loan (and interest earned thereon) from a Servicing
Account may be made only:
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(i) to effect the payment of real estate taxes, assessments, insurance premiums
(including, without limitation, premiums on any Environmental Insurance Policy),
ground rents (if applicable) and comparable items in respect of the related
Mortgaged Property; (ii) to reimburse the Master Servicer, the Special Servicer,
the Trustee or any Fiscal Agent, as applicable, for any unreimbursed Servicing
Advances made thereby to cover any of the items described in the immediately
preceding clause (i); (iii) to refund to the related Borrower any sums as may be
determined to be overages; (iv) to pay interest or other income, if required and
as described below, to the related Borrower on balances in the Servicing Account
(or, if and to the extent not payable to the related Borrower to pay such
interest or other income (up to the amount of any Net Investment Earnings in
respect of such Servicing Account for each Collection Period) to the Master
Servicer); or (v) to clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. The Master
Servicer shall pay or cause to be paid to the Borrowers interest and other
income, if any, earned on the investment of funds in Servicing Accounts
maintained thereby, if and to the extent required by law or the terms of the
related Mortgage Loan. If the Master Servicer shall deposit in a Servicing
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Servicing Account, any provision herein to the
contrary notwithstanding. Promptly after any Escrow Payments are received by the
Special Servicer from any Borrower, and in any event within one Business Day
after any such receipt, the Special Servicer shall remit such Escrow Payments to
the Master Servicer for deposit in the applicable Servicing Account(s).
(b) The Master Servicer shall as to each Mortgage Loan
(including each Specially Serviced Mortgage Loan) (i) maintain accurate records
with respect to the related Mortgaged Property reflecting the status of real
estate taxes, assessments and other similar items that are or may become a lien
thereon and the status of insurance premiums and any ground rents payable in
respect thereof and (ii) use reasonable efforts consistent with the Servicing
Standard to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and effect payment thereof prior to the applicable
penalty or termination date. For purposes of effecting any such payment, the
Master Servicer shall apply Escrow Payments as allowed under the terms of the
related Mortgage Loan documents; provided, however, that if such Mortgage Loan
does not require the related Borrower to escrow for the payment of real estate
taxes, assessments, insurance premiums, ground rents (if applicable) and similar
items, each of the Master Servicer and the Special Servicer shall, as to those
Mortgage Loans it is obligated to service hereunder, and subject to and in
accordance with the Servicing Standard, enforce the requirement of the related
Mortgage that the Borrower make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard, the Master
Servicer shall, as to all the Mortgage Loans (including, Specially Serviced
Mortgage Loans), advance with respect to each Mortgaged Property all such funds
as are necessary for the purpose of effecting the timely payment of (i) real
estate taxes, assessments and other similar items, (ii) ground rents or other
rents (if applicable), and (iii) premiums on Insurance Policies (including,
without limitation, Environmental Insurance Policies), in each instance if and
to the extent that Escrow Payments (if any) collected from the related Borrower
are insufficient to pay such item when due, and the related Borrower has failed
to pay such item on a timely basis, and provided that the particular Advance
would not, if made, constitute a Nonrecoverable Servicing Advance. All such
Advances shall be reimbursable in the first instance from related collections
from the Borrowers and further as provided in Section 3.05(a). No costs incurred
by the Master Servicer or the Special Servicer in effecting the payment
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of real estate taxes, assessments and similar items and, if applicable, ground
rents on or in respect of such Mortgaged Properties shall, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
the unpaid principal balances of the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit; provided, however, that this
provision is in no way intended to affect amounts actually due and owing from
the related Borrower under such Mortgage Loan.
(d) The Master Servicer shall, as to all the Mortgage Loans
(including Specially Serviced Mortgaged Loans), establish and maintain, as
applicable, one or more accounts (the "Reserve Accounts"), in which all Reserve
Funds, if any, shall be deposited and retained. Withdrawals of amounts so
deposited, and draws on any Letter of Credit delivered in lieu of Reserve Funds
may be made to pay for or otherwise cover, or (if appropriate) to reimburse the
related Borrower in connection with, the specific items for which such Reserve
Funds were escrowed or any such Letter of Credit was delivered, all in
accordance with the Servicing Standard and the terms of the related Mortgage
Note, Mortgage and any agreement with the related Borrower governing such
Reserve Funds or Letter of Credit. Subject to the terms of the related Mortgage
Note and Mortgage, all Reserve Accounts shall be Eligible Accounts and funds
therein may be invested in Permitted Investments in accordance with the
provisions of Section 3.06. Interest and investment income on funds held in any
Reserve Fund will be for the benefit of the Master Servicer subject to its
withdrawal, but only to the extent it is not otherwise required to be paid to
the related Borrower pursuant to applicable law and/or the related loan
documents. The Special Servicer shall deliver all Reserve Funds (within one
Business Day of receipt of such Reserve Funds by it) to the Master Servicer for
deposit in the applicable Reserve Account.
(e) To the extent an operations and maintenance plan is
required to be established and executed pursuant to the terms of a Mortgage
Loan, the Master Servicer shall request from the Borrower written confirmation
thereof within a reasonable time after the later of the Closing Date and the
date as of which such plan is required to be established or completed. To the
extent any other action or remediation with respect to environmental matters is
required to have been taken or completed pursuant to the terms of the related
Mortgage Loan documents, the Master Servicer shall request from the Borrower
written confirmation of such action and remediations within a reasonable time
after the later of the Closing Date and the date as of which such action or
remediations are required to have been taken or completed. To the extent that a
Borrower shall fail to promptly respond to any inquiry described in this Section
3.03(e), the Master Servicer shall notify the Trustee, the Special Servicer and
the Controlling Class Representative. The Master Servicer shall promptly notify
the Trustee, the Special Servicer and the Controlling Class Representative if
the Master Servicer shall determine that any Borrower has failed to perform its
obligations under the related Mortgage Loan in respect of environmental matters.
(f) Subject to applicable law and the terms of the related
Mortgage Loan documents, funds in the Servicing Accounts and the Reserve
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06.
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SECTION 3.04. Collection Account, Distribution Account,
Interest Reserve Account and Gain on Sale
Reserve Fund.
(a) The Master Servicer shall segregate and hold all funds
collected and received in connection with the Mortgage Pool separate and apart
from its own funds and general assets. In connection therewith, the Master
Servicer shall establish and maintain one or more segregated accounts
(collectively, the "Collection Account"), in which the funds described below are
to be deposited and held on behalf of the Trustee in trust for the benefit of
the Certificateholders. Each account that constitutes the Collection Account
shall be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Collection Account, within two Business Days of receipt (in the
case of payments by Borrowers or other collections on the Mortgage Loans) or as
otherwise required hereunder, the following payments and collections received or
made by or on behalf of the Master Servicer in respect of the Mortgage Pool
subsequent to the Closing Date (other than in respect of scheduled payments of
principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date, which payments shall be delivered promptly to the related Mortgage
Loan Seller or its designee, with negotiable instruments endorsed as necessary
and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a
debt service reserve account, on account of principal of the Mortgage
Loans, including Principal Prepayments;
(ii) all payments, from whatever source, or transfers from a
debt service reserve account, on account of interest on the Mortgage
Loans, including Default Interest and Post-ARD Additional Interest;
(iii) all Prepayment Premiums and late payment charges
received in respect of the Mortgage Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the Mortgage Loans;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the Collection
Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a blanket
or master force place hazard policy;
(vii) any amounts required to be transferred from any REO
Account pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Borrower specifically to cover items for which a
Servicing Advance has been made.
The foregoing requirements for deposit in the Collection
Account shall be exclusive. Without limiting the generality of the foregoing,
(A) actual payments from Borrowers in the nature of Escrow Payments, assumption
fees, assumption application fees, extension fees, modification
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fees, charges for beneficiary statements or demands, amounts collected for
checks returned for insufficient funds, and processing or similar fees, need not
be deposited by the Master Servicer in the Collection Account and (B) with
respect to any amount representing a sub-servicing fee that otherwise would be
required to be deposited by the Master Servicer in the Collection Account and
that, once so deposited, would have been permitted to be withdrawn immediately
from the Collection Account pursuant to Section 3.05 as part of the payment of
the Master Servicing Fee, such amount shall be deemed to have been deposited to
and withdrawn from the Collection Account for such purpose to the extent that
such sum has been retained by the Sub-Servicer pursuant to the related
Sub-Servicing Agreement. The Master Servicer shall promptly deliver to the
Special Servicer any of the foregoing items received by it, if and to the extent
that such items constitute Additional Special Servicing Compensation. If the
Master Servicer shall deposit in the Collection Account any amount not required
to be deposited therein, it may at any time withdraw such amount from the
Collection Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i)
through (iv) and (viii) of the first paragraph of this Section 3.04(a) with
respect to any Mortgage Loan, the Special Servicer shall promptly, but in no
event later than one Business Day after receipt, remit such amounts to the
Master Servicer for deposit into the Collection Account, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement. With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse such check to the order of the Master Servicer
(in its capacity as such), without recourse, representation or warranty, unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item cannot be so endorsed and delivered because of a restrictive
endorsement. Any such amounts received by the Special Servicer with respect to
an REO Property shall be deposited by the Special Servicer into the REO Account
and remitted to the Master Servicer for deposit into the Collection Account
pursuant to Section 3.16(c).
(b) The Certificate Administrator shall establish and maintain
one or more segregated accounts (collectively, the "Distribution Account"), to
be held on behalf of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Distribution Account shall
be an Eligible Account. The Certificate Administrator shall, as a bookkeeping
matter, establish and maintain two sub-accounts of the Distribution Account (i)
one of which sub-accounts (such sub-account, the "REMIC Sub-Account") shall be
deemed to be held in trust for the benefit of the Holders of the REMIC III
Regular Interest Certificates and the Class R Certificates and (ii) one of which
sub-accounts (such sub-account, the "Class Y Sub-Account") shall be deemed to be
held in trust for the benefit of the Holders of the Class Y Certificates. By
2:00 p.m. (New York City time) on each Master Servicer Remittance Date, the
Master Servicer shall deliver to the Certificate Administrator, for deposit in
the Distribution Account, an aggregate amount of immediately available funds
equal to the Master Servicer Remittance Amount for such Master Servicer
Remittance Date. Immediately upon deposit of the Master Servicer Remittance
Amount for any Master Servicer Remittance Date into the Distribution Account,
any portion thereof that represents any Post-ARD Additional Interest related to
the ARD Loans shall be deemed to have been deposited into the Class Y
Sub-Account, and the remaining portion thereof shall be deemed to have been
deposited into the REMIC Sub-Account. In addition, the Master Servicer shall, as
and when required hereunder, deliver to the Certificate Administrator for
deposit in the Distribution Account any P&I Advances and Compensating Interest
Payments required to be made by the
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Master Servicer hereunder. Furthermore, any amounts paid by any party hereto to
indemnify the Trust Fund pursuant to any provision hereof shall be delivered to
the Certificate Administrator for deposit in the Distribution Account. The
Certificate Administrator shall, upon receipt, deposit in the Distribution
Account any and all amounts received or, pursuant to Section 4.03, advanced by
the Trustee or any Fiscal Agent that are required by the terms of this Agreement
to be deposited therein. As and when required pursuant to Section 3.05(c), the
Certificate Administrator shall transfer Interest Reserve Amounts in respect of
the Interest Reserve Loans from the Interest Reserve Account to the Distribution
Account. Furthermore, as and when required pursuant to Section 3.05(d), the
Certificate Administrator shall transfer monies from the Gain on Sale Reserve
Fund to the Distribution Account. If the Certificate Administrator shall deposit
in the Distribution Account any amount not required to be deposited therein, it
may at any time withdraw such amount from the Distribution Account, any
provision herein to the contrary notwithstanding.
(c) The Certificate Administrator shall establish and maintain
one or more accounts (collectively, the "Interest Reserve Account") to be held
on behalf of the Trustee in trust for the benefit of the Certificateholders.
Each account that constitutes the Interest Reserve Account shall be an Eligible
Account. On the Distribution Date in January (except during a leap year) and
February of each calendar year, commencing in 2001, prior to any distributions
being made in respect of the Certificates on such Distribution Date, the
Certificate Administrator shall, with respect to each Interest Reserve Loan,
withdraw from the Distribution Account and deposit in the Interest Reserve
Account an amount equal to the Interest Reserve Amount, if any, in respect of
such Interest Reserve Loan for such Distribution Date; provided that no such
transfer of monies from the Distribution Account to the Interest Reserve Account
shall be made on the Final Distribution Date.
(d) Upon or prior to the receipt of any Excess Liquidation
Proceeds in connection with the liquidation of any defaulted Mortgage Loan or
REO Property, the Certificate Administrator shall establish and maintain one or
more accounts (collectively, the "Gain on Sale Reserve Fund") to be held on
behalf of the Trustee in trust for the benefit of the Certificateholders. Each
account that constitutes the Gain on Sale Reserve Fund shall be an Eligible
Account. On each Master Servicer Remittance Date, the Certificate Administrator
shall deposit into the Gain on Sale Reserve Fund that portion, if any, of the
Master Servicer Remittance Amount received by it on such Master Servicer
Remittance Date that constitutes Excess Liquidation proceeds, which Excess
Liquidation Proceeds shall be indicated by the Master Servicer in the CMSA Loan
Periodic Update File; provided that no such deposit into the Gain on Sale
Reserve Fund shall be made in the month in which the Final Distribution Date
occurs.
(e) Funds in the Collection Account may be invested in
Permitted Investments in accordance with the provisions of Section 3.06. Funds
in the Distribution Account, the Interest Reserve Account and the Gain on Sale
Reserve Fund shall remain uninvested. The Master Servicer shall give notice to
the other parties hereto of the location of the Collection Account as of the
Closing Date and of the new location of the Collection Account prior to any
change thereof. The Distribution Account, Interest Reserve Account and Gain on
Sale Reserve Fund shall be held at the Corporate Trust Office of The Chase
Manhattan Bank as of the Closing Date, and the Certificate Administrator shall
give notice to the parties hereto of the new location of each of the
Distribution Account, Interest Reserve Account and Gain on Sale Reserve Fund
prior to any change thereof.
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SECTION 3.05. Permitted Withdrawals From the Collection
Account, the Distribution Account, the Interest
Reserve Account and the Gain on Sale Reserve
Fund.
(a) The Master Servicer may, from time to time, make
withdrawals from the Collection Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Certificate Administrator for deposit in
the Distribution Account the Master Servicer Remittance Amount for each
Master Servicer Remittance Date and any amounts that may be applied to
make P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse any Fiscal Agent, the Trustee or itself, in
that order, for unreimbursed P&I Advances made thereby (in each case,
with its own funds), any Fiscal Agent's, the Trustee's and the Master
Servicer's, as the case may be, respective rights to reimbursement
pursuant to this clause (ii) with respect to any P&I Advance (other
than Nonrecoverable P&I Advances, which are reimbursable pursuant to
clause (vii) below), however, being limited to amounts that represent
Late Collections of interest and principal received in respect of the
particular Mortgage Loan or REO Mortgage Loan as to which such P&I
Advance was made (net of related Master Servicing Fees and/or Workout
Fees);
(iii) on each Master Servicer Remittance Date, to pay to
itself the Master Servicing Fees earned in respect of each Mortgage
Loan and REO Mortgage Loan for the related Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates, the
Master Servicer's rights to payment pursuant to this clause (iii) with
respect to any Mortgage Loan or REO Mortgage Loan, however, being
limited to amounts received on or in respect of such Mortgage Loan
(whether in the form of payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds) or such REO Mortgage Loan (whether in
the form of REO Revenues, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds) that are allocable as interest thereon;
(iv) on each Master Servicer Remittance Date, to pay to the
Special Servicer, out of general collections on the Mortgage Loans and
any REO Properties, the Special Servicing Fees earned in respect of
each Specially Serviced Mortgage Loan and REO Mortgage Loan for the
related Distribution Date and, to the extent not previously paid, for
all prior Distribution Dates;
(v) to pay the Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Workout Fees and Liquidation
Fees to which it is entitled pursuant to, and from the sources
contemplated by, the second and third paragraphs of Section 3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee, itself or the
Special Servicer, in that order, for any unreimbursed Servicing
Advances made thereby (in each case, with its own funds), any Fiscal
Agent's, the Trustee's, the Master Servicer's and the Special
Servicer's, as the case may be, respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance
(other than Nonrecoverable Servicing Advances, which are reimbursable
pursuant to clause (vii) below) being limited to (A) payments made
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by the related Borrower that are allocable to cover the item in respect
of which such Servicing Advance was made, and (B) Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO
Revenues received in respect of the particular Mortgage Loan or REO
Property as to which such Servicing Advance was made;
(vii) to reimburse any Fiscal Agent, the Trustee, itself or
the Special Servicer, in that order, out of general collections on the
Mortgage Loans and any REO Properties, for any unreimbursed Advances
made thereby that have been determined to be Nonrecoverable Advances;
(viii) to the extent that, during any Collection Period, the
Master Servicer has reimbursed or is reimbursing any Fiscal Agent, the
Trustee, itself or the Special Servicer, the Trustee or any Fiscal
Agent, as applicable, for any unreimbursed Advance pursuant to clause
(ii), (vi) or (vii) above or pursuant to Section 3.03(c), and insofar
as payment has not already been made, to also pay such Person, the case
may be, out of Default Charges on deposit in the Collection Account
that were collected on any Mortgage Loan or REO Mortgage Loan during
such Collection Period, any related Advance Interest accrued and
payable on the portion of such Advance so reimbursed or being
reimbursed;
(ix) to the extent that, during any Collection Period, the
Master Servicer has reimbursed or is reimbursing any Fiscal Agent, the
Trustee, itself or the Special Servicer, as applicable, for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above or
pursuant to Section 3.03(c), and insofar as payment has not already
been made, and the Default Charges collected during such Collection
Period are not sufficient to make such payment pursuant to clause
(viii) above, to also pay such Person, out of general collections on
the Mortgage Loans and any REO Properties, any related Advance Interest
accrued and payable on the portion of such Advance so reimbursed or
being reimbursed;
(x) to pay itself any items of Additional Master Servicing
Compensation, and to pay the Special Servicer any items of Additional
Special Servicing Compensation, in each case on deposit in the
Collection Account from time to time;
(xi) to reimburse the Trustee, the Master Servicer and the
Special Servicer for any reasonable out-of-pocket expenses for which it
is entitled to be reimbursed pursuant to, and from the sources
contemplated by, Section 2.03(e);
(xii) to pay any unpaid Liquidation Expenses incurred with
respect to any Mortgage Loan or REO Property, such payments to be made
solely from Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and, if applicable, REO Revenues received in respect of such
Mortgage Loan or REO Property, as the case may be;
(xiii) to pay, in accordance with Section 3.11(i), out of
general collections on the Mortgage Loans and any REO Properties,
certain servicing expenses that would, if advanced, constitute
Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans
and any REO Properties, for costs and expenses incurred by the Trust
Fund (A) pursuant to Section
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3.09(c) (other than the costs of environmental testing, which are to be
covered by, and reimbursable as, a Servicing Advance) and (B) the first
sentence of Section 3.12(a);
(xv) to pay itself, the Special Servicer, the Tax
Administrator, the Certificate Administrator, the Custodian, the
Depositor, the Trustee, any Fiscal Agent, or any of their respective
directors, officers, members, managers, employees and agents, as the
case may be, out of general collections on the Mortgage Loans and any
REO Properties, any amounts payable to any such Person pursuant to
Section 4.06, Section 6.03, Section 7.01(b), Section 8.05(b), Section
8.13 or Section 10.03, as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans
and any REO Properties, for (A) the cost of the Opinion of Counsel
contemplated by Section 11.02(a), and (B) the cost of recording this
Agreement in accordance with Section 11.02(a);
(xvii) to pay, out of general collections on the Mortgage
Loans and any REO Properties, for any expense (including the reasonable
fees of tax accountants and attorneys) incurred by the Tax
Administrator pursuant to Section 3.17(a)(iii) in connection with
providing advice to the Special Servicer;
(xviii) to pay to the Master Servicer, the Special Servicer,
the Trustee, any Fiscal Agent, the Tax Administrator, the Certificate
Administrator, the Custodian or the Depositor, as the case may be, any
amount specifically required to be paid to such Person at the expense
of the Trust Fund under any provision of this Agreement to which
reference is not made in any other clause of this Section 3.05(a), it
being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time
at which any Person is entitled to payment or reimbursement of any
amount or the funds from which any such payment or reimbursement is
permitted to be made;
(xix) to pay itself, the Special Servicer, a Mortgage Loan
Seller, a Controlling Class Certificateholder or any other particular
Person, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased or otherwise removed from the Trust Fund by such
Person pursuant to or as contemplated by this Agreement, all amounts
received thereon subsequent to the date of purchase; and
(xx) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any
particular time (after withdrawing any portion of such amounts deposited in the
Collection Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xix) above, then the corresponding withdrawals from the Collection
Account shall be made in the following priority and subject to the following
rules: (A) if the payment, reimbursement or remittance is to be made from a
specific source of funds, then such payment, reimbursement or remittance shall
be made from that specific source of funds on a pro rata basis with any and all
other payments, reimbursements and remittances to be made from such specific
source of funds, provided that where, as in clauses (ii) and (vi), an order of
priority is set forth to govern the application of funds withdrawn from the
Collection Account pursuant to such
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clauses, payments, reimbursements or remittances pursuant to any such clause
shall be made in such order of priority to the extent of available funds; and
(B) if the payment, reimbursement or remittance can be made from any funds on
deposit in the Collection Account, then (following any withdrawals made from the
Collection Account in accordance with the immediately preceding clause (A)
above) such payment, reimbursement or remittance shall be made from the general
funds remaining on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds, provided that
where, as in clause (vii), an order of priority is set forth to govern the
application of funds withdrawn from the Collection Account pursuant to such
clause, payments, reimbursements or remittances pursuant to such clause shall be
made in such order of priority to the extent of available funds.
The Master Servicer shall keep and maintain separate
accounting records, on a loan-by-loan and property-by-property basis when
appropriate, in connection with any withdrawal from the Collection Account
pursuant to any of clauses (ii) through (xix) above.
The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer) from the
Collection Account amounts permitted to be paid to it (or to such third party
contractors) therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer describing the item and amount to which the
Special Servicer (or any such third party contractor) is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Collection Account.
(b) The Certificate Administrator shall, from time to time,
make withdrawals from the Distribution Account for each of the following
purposes, to the extent not previously paid (the order set forth below not
constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01;
(ii) to pay the Trustee or any of the Trustee's directors,
officers, employees and agents, as the case may be, any amounts payable
or reimbursable to any such Person pursuant to Section 8.05, including
the Trustee's Fee;
(iii) to pay the Certificate Administrator, the Custodian, the
Tax Administrator, any Fiscal Agent or any of their respective
directors, officers, employees and agents, as the case may be, any
amounts payable or reimbursable to any such Person pursuant to Sections
4.06, 8.05(b), 8.13(a) and/or 10.03;
(iv) to pay for the cost of the Opinions of Counsel sought by
the Trustee as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the
Trustee which amendment is in furtherance of the rights and interests
of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed
on any REMIC Pool or on the assets or transactions of any REMIC Pool,
together with all incidental costs and
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expenses, and any and all expenses relating to tax audits, if and to
the extent that either (A) none of the parties hereto are liable
therefor pursuant to Section 10.01(b) and/or Section 10.01(f) or (B)
any such Person that may be so liable has failed to timely make the
required payment;
(vi) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Loans to the Interest Reserve Account as and when
required by Section 3.04(c); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each
year (commencing in March 2001), and in any event on the Master Servicer
Remittance Date that occurs in the same calendar month as the Final Distribution
Date, the Certificate Administrator shall withdraw from the Interest Reserve
Account and deposit in the Distribution Account all Interest Reserve Amounts in
respect of the Interest Reserve Loans then on deposit in the Interest Reserve
Account.
(d) On each Distribution Date, prior to 11:00 a.m. New York
City time, the Certificate Administrator shall withdraw from the Gain on Sale
Reserve Fund and deposit in the Distribution Account, for distribution on such
Distribution Date pursuant to Section 4.01, an amount equal to the lesser of (i)
the entire amount, if any, then on deposit in the Gain on Sale Reserve Fund and
(ii) the excess, if any, of the aggregate amount distributable on such
Distribution Date pursuant to Sections 4.01(a) and 4.01(b), over the Standard
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Gain on Sale Reserve Fund to the Distribution
Account); provided, that on the Final Distribution Date, prior to 11:00 a.m. New
York City time, the Certificate Administrator shall withdraw from the Gain on
Sale Reserve Fund and deposit in the Distribution Account, for distribution on
such Distribution Date, any and all amounts then on deposit in the Gain on Sale
Reserve Fund.
(e) The Trustee, any Fiscal Agent, the Depositor, the Master
Servicer and the Special Servicer, as applicable, shall in all cases have a
right prior to the Certificateholders to any particular funds on deposit in the
Collection Account and the Distribution Account from time to time for the
reimbursement or payment of compensation, Advances (with interest thereon at the
Reimbursement Rate) and their respective expenses hereunder (or, in the case of
such expenses, to have such funds paid directly to third party contractors from
any invoices approved by the Trustee, any Fiscal Agent, the Depositor, the
Master Servicer or the Special Servicer, as applicable), but only if and to the
extent such compensation, Advances (with interest) and expenses are to be
reimbursed or paid from such particular funds on deposit in the Collection
Account or the Distribution Account pursuant to the express terms of this
Agreement.
SECTION 3.06. Investment of Funds in the Collection Account,
Servicing Accounts, Reserve Accounts and the REO
Account.
(a) The Master Servicer may direct (pursuant to a standing
order or otherwise) any depository institution (including the Certificate
Administrator) maintaining the Collection Account or any Servicing Account or
Reserve Account held by it, and the Special Servicer may direct (pursuant to a
standing order or otherwise) any depository institution maintaining the REO
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Account, to invest, or if it is such depository institution, may itself invest,
the funds held therein (each such account, for purposes of this Section 3.06, an
"Investment Account") in (but only in) one or more Permitted Investments bearing
interest or sold at a discount, and maturing, unless payable on demand, no later
than the Business Day immediately preceding the next succeeding date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement or the related Mortgage Loan documents, as applicable; provided that
any such investment of funds in any Servicing Account or Reserve Account shall
be subject to applicable law and the terms of the related Mortgage Loan
documents; and provided, further, that the funds in any Investment Account shall
remain uninvested unless and until the Master Servicer or Special Servicer, as
applicable, gives timely investment instructions with respect thereto pursuant
to this Section 3.06. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment Account shall
be made in the name of the Trustee (in its capacity as such). The Master
Servicer (with respect to Permitted Investments of amounts in the Collection
Account, the Servicing Accounts and the Reserve Accounts) and the Special
Servicer (with respect to Permitted Investments of amounts in the REO Account),
acting on behalf of the Trustee, shall (and Trustee hereby designates the Master
Servicer and the Special Servicer, as applicable, as the Person that shall) (i)
be the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security entitlement",
"control", "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by the Master Servicer or the Special
Servicer shall constitute "control" by a Person designated by, and acting on
behalf of, the Trustee for purposes of Revised Article 8 (1994 Revision) of the
UCC. If amounts on deposit in an Investment Account are at any time invested in
a Permitted Investment payable on demand, the Master Servicer (in the case of
the Collection Account or any Servicing Account or Reserve Account) or the
Special Servicer (in the case of the REO Account) shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on
the last day such Permitted Investment may otherwise
mature hereunder in an amount at least equal to the
lesser of (1) all amounts then payable thereunder and
(2) the amount required to be withdrawn on such date;
and
(y) demand payment of all amounts due thereunder promptly
upon determination by the Master Servicer or the
Special Servicer, as the case may be, that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit
in the Investment Account.
(b) Whether or not the Master Servicer directs the investment
of funds in the Collection Account, interest and investment income realized on
funds deposited therein, to the extent of the Net Investment Earnings, if any,
for such Investment Account for each Collection Period, shall be for the sole
and exclusive benefit of the Master Servicer and shall be subject to its
withdrawal in accordance with Section 3.05(a). Whether or not the Master
Servicer directs the investment of funds in any Servicing Account or Reserve
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for such Investment Account
for each Collection Period and, further, if and to the extent not required to be
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paid to the related Borrower pursuant to applicable law or the terms of the
related Mortgage Loan, shall be for the sole and exclusive benefit of the Master
Servicer and shall be subject to withdrawal from time to time in accordance with
Section 3.03. If the Special Servicer directs the investment of funds in the REO
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for such Investment Account
for each Collection Period, shall be for the sole and exclusive benefit of the
Special Servicer and shall be subject to its withdrawal in accordance with
Section 3.16(b). If any loss shall be incurred in respect of any Permitted
Investment on deposit in any Investment Account (other than a loss of what would
otherwise have constituted investment earnings and, in the case of a Servicing
Account or an REO Account, other than a loss of an investment made for the
benefit of the related Borrower, which is either invested at the direction of
the related Borrower or as required under the related Mortgage Loan documents),
the Master Servicer (in the case of the Collection Account and any Servicing
Account or Reserve Account) and the Special Servicer (in the case of the REO
Account) shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the Collection Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, in respect of
such Investment Account for such Collection Period (or, in the case of a
Servicing Account or Reserve Account, the entire amount of such loss).
(c) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of any payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, and the Master Servicer or the Special Servicer, as
applicable, has not taken such action, the Trustee may, and, subject to Section
8.02, upon the request of Holders of Certificates entitled to not less than 25%
of the Voting Rights allocated to any Class of REMIC III Regular Interest
Certificates, the Trustee shall, take such action to enforce such payment or
performance, including the institution and prosecution of appropriate legal
proceedings.
(d) Amounts on deposit in the Distribution Account, the
Interest Reserve Account and the Gain on Sale Reserve Fund shall remain
uninvested.
(e) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including the
calculation of the Standard Available Distribution Amount and the Master
Servicer Remittance Amount, the amounts so invested shall be deemed to remain on
deposit in such Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) Each of the Master Servicer and Special Servicer shall, as
to those Mortgage Loans it is obliged to service hereunder, use reasonable
efforts in accordance with the Servicing Standard to cause the related Borrower
to maintain (and, if the related Borrower does not so maintain, the Master
Servicer (even in the case of Specially Serviced Mortgage Loans) shall itself
maintain (subject to Sections 3.11(h) and 3.11(i) hereof, and to the extent the
Trustee, as mortgagee on behalf of the Certificateholders, has an insurable
interest and to the extent available at commercially reasonable rates) all
insurance coverage as is required under the related Mortgage subject to
applicable law); provided that if any Mortgage permits the holder thereof to
dictate to the Borrower the insurance coverage to be maintained on such
Mortgaged Property, the Master Servicer
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or Special Servicer, as appropriate, shall impose such insurance requirements as
are consistent with the Servicing Standard and shall require that such insurance
be obtained from Qualified Insurers with the Required Claims-Paying Ratings. The
Special Servicer shall also cause to be maintained for each REO Property, in
each case with a Qualified Insurer that possesses (or whose obligations are
guaranteed or backed, in writing, by an entity having) the Required
Claims-Paying Ratings at the time such policy is purchased, no less insurance
coverage than was previously required of the related Borrower under the related
Mortgage and, if the related Mortgage did not so require, hazard insurance,
public liability insurance, flood insurance (if applicable) and, to the extent
consistent with the Servicing Standard and available at commercially reasonable
rates, business interruption or rent loss insurance and earthquake insurance,
all in such amounts as are consistent with the Servicing Standard, and the
Special Servicer shall be reimbursed for the premium costs thereof as a
Servicing Advance pursuant to and to the extent permitted under Section 3.05(a).
All such insurance policies shall contain a "standard" mortgagee clause, with
loss payable to the Master Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of the Mortgaged Properties) or the Special
Servicer (in the case of insurance maintained in respect of REO Properties)
shall be issued by an insurer authorized under applicable law to issue such
insurance, and, unless prohibited by the related Mortgage, may contain a
deductible clause (not in excess of a customary amount). Any amounts collected
by the Master Servicer or the Special Servicer under any such policies (other
than amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Borrower, in
each case in accordance with the Servicing Standard) shall be deposited in the
Collection Account, subject to withdrawal pursuant to Section 3.05(a), in the
case of amounts received in respect of a Mortgage Loan, or in the REO Account,
subject to withdrawal pursuant to Section 3.16(c), in the case of amounts
received in respect of an REO Property. Any cost incurred by the Master Servicer
or the Special Servicer, as applicable in maintaining any such insurance shall
not, for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit; provided, however, that this provision is in no way
intended to affect amounts due and owing from the related Borrower under such
Mortgage Loan.
(b) If the Master Servicer or the Special Servicer shall
obtain and maintain a blanket policy insuring against hazard losses on any or
all of the Mortgaged Properties (in the case of the Master Servicer) or REO
Properties (in the case of the Special Servicer), then, to the extent such
policy (i) is obtained from a Qualified Insurer that possesses (or whose
obligations are guaranteed or backed, in writing, by an entity having) the
Required Claims-Paying Ratings, and (ii) provides protection equivalent to the
individual policies otherwise required, the Master Servicer or the Special
Servicer, as the case may be, shall conclusively be deemed to have satisfied its
obligation to cause hazard insurance to be maintained on the Mortgaged
Properties or REO Properties, as applicable, so covered, and the premium costs
thereof shall be, if and to the extent they are specifically attributable either
to a specific Mortgaged Property during any period that the related Borrower has
failed to maintain the hazard insurance required under the related Mortgage Loan
in respect of such Mortgaged Property or to a specific REO Property, a Servicing
Advance reimbursable pursuant to and to the extent permitted under Section
3.05(a); provided that, to the extent that such premium costs are attributable
to properties other than Mortgaged Properties and/or REO Properties or are
attributable to Mortgaged Properties as to which the hazard insurance required
under the related Mortgage Loan is being maintained, they shall be borne by the
Master Servicer or Special Servicer, as the case may be, without right of
reimbursement. Such a blanket
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policy may contain a deductible clause (not in excess of a customary amount), in
which case the Master Servicer or the Special Servicer, as appropriate, shall,
if there shall not have been maintained on the related Mortgaged Property or REO
Property, as applicable, a hazard insurance policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such property specific policy (taking into
account any deductible clause that would have been permitted therein), promptly
deposit into the Collection Account from its own funds (without right of
reimbursement) the amount of such losses up to the difference between the amount
of the deductible clause in such blanket policy and the amount of any deductible
clause that would have been permitted under such property specific policy. The
Master Servicer and the Special Servicer each agree to prepare and present, on
behalf of itself, the Trustee and the Certificateholders, claims under any such
blanket policy maintained by it in a timely fashion in accordance with the terms
of such policy.
If the Master Servicer shall cause any Mortgaged Property or
the Special Servicer shall cause any REO Property to be covered by a master
single interest insurance policy naming the Master Servicer or the Special
Servicer, as applicable, on behalf of the Trustee as the loss payee, then to the
extent such policy (i) is obtained from a Qualified Insurer that possesses (or
whose obligations are guaranteed or backed, in writing, by an entity having) the
Required Claims-Paying Ratings and (ii) provides protection equivalent to the
individual policies otherwise required, the Master Servicer or the Special
Servicer, as applicable, shall conclusively be deemed to have satisfied its
obligation to cause such insurance to be maintained on such Mortgaged Property
(in the case of the Master Servicer) or REO Property (in the case of the Special
Servicer). If the Master Servicer shall cause any Mortgaged Property as to which
the related Borrower has failed to maintain the required insurance coverage, or
the Special Servicer shall cause any REO Property, to be covered by such master
single interest insurance policy, then the incremental costs of such insurance
applicable to such Mortgaged Property or REO Property (i.e., other than any
minimum or standby premium payable for such policy whether or not any Mortgaged
Property or REO Property is covered thereby) paid by the Master Servicer or the
Special Servicer, as applicable, shall constitute a Servicing Advance. The
Master Servicer shall, consistent with the Servicing Standard and the terms of
the related Mortgage Loan documents, pursue the related Borrower for the amount
of such incremental costs. All other costs associated with any such master
single interest insurance policy (including, any minimum or standby premium
payable for such policy) shall be borne by the Master Servicer or Special
Servicer, as the case may be, without right of reimbursement. Such master single
interest insurance policy may contain a deductible clause (not in excess of a
customary amount), in which case the Master Servicer or the Special Servicer, as
applicable, shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property, as the case may be, a policy
otherwise complying with the provisions of Section 3.07(a), and there shall have
been one or more losses which would have been covered by such property specific
policy had it been maintained, promptly deposit into the Collection Account from
its own funds (without right of reimbursement) the amount not otherwise payable
under the master single interest policy because of such deductible clause, to
the extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan, or, in the absence of any such
deductible limitation, the deductible limitation which is consistent with the
Servicing Standard.
(c) On or before the Closing Date, with respect to each of the
Environmentally Insured Mortgage Loans, the Depositor shall notify the insurer
under the related Environmental Insurance Policy and take all other action
necessary for the Trustee, on behalf of the
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Certificateholders, to be an insured (and for the Master Servicer, on behalf of
the Trust, to make claims) under such Environmental Insurance Policy. In the
event that the Master Servicer has actual knowledge of any event (an "Insured
Environmental Event") giving rise to a claim under any Environmental Insurance
Policy in respect of any Environmentally Insured Mortgage Loan for which the
Borrower has not filed a claim, the Master Servicer shall, in accordance with
the terms of such Environmental Insurance Policy and the Servicing Standard,
timely make a claim thereunder with the appropriate insurer and shall take such
other actions necessary under such Environmental Insurance Policy in order to
realize the full value thereof for the benefit of the Certificateholders. With
respect to each Environmental Insurance Policy in respect of an Environmentally
Insured Mortgage Loan, the Master Servicer shall review and familiarize itself
with the terms and conditions relating to enforcement of claims and shall
monitor the dates by which any claim must be made or any action must be taken
under such policy to realize the full value thereof for the benefit of the
Certificateholders in the event the Master Servicer has actual knowledge of an
Insured Environmental Event giving rise to a claim under such policy.
The Master Servicer shall abide by the terms and conditions
precedent to payment of claims under the Environmental Insurance Policies with
respect to the Environmentally Insured Mortgage Loans and take all such action
as may be required to comply with the terms and provisions of such policies in
order to maintain such policies in full force and effect and to make claims
thereunder.
In the event that the Master Servicer receives notice of any
termination of any Environmental Insurance Policy with respect to
Environmentally Insured Mortgage Loan, the Master Servicer shall, within five
Business Days after receipt of such notice, notify the Special Servicer, the
Controlling Class Representative, the Rating Agencies and the Trustee of such
termination in writing. Upon receipt of such notice, the Master Servicer shall
address such termination in accordance with Section 3.07(a). Any legal fees,
premiums or other out-of-pocket costs incurred in accordance with the Servicing
Standard in connection with enforcing the obligations of the Borrower under any
Environmental Insurance Policy a resolution of such termination of an
Environmental Insurance Policy shall be paid by the Master Servicer and shall be
reimbursable to it as a Servicing Advance.
Without limiting its obligations hereunder with respect to any
other Mortgage Loan, the Master Servicer shall monitor the actions, and enforce
the obligations, of the related Borrower under each Environmentally Insured
Mortgage Loan insofar as such actions/obligations relate to (i) to the extent
consistent with Section 3.07(a), the maintenance (including, without limitation,
any required renewal) of an Environmental Insurance Policy with respect to the
related Mortgaged Property or (ii) environmental testing or remediation at the
related Mortgaged Property.
(d) Each of the Master Servicer and the Special Servicer shall
at all times during the term of this Agreement keep in force with Qualified
Insurers that possess (or whose obligations are guaranteed or backed, in
writing, by entities having) the Required Claims-Paying Ratings, a fidelity bond
in such form and amount as would permit it to be a qualified Fannie Mae or
Freddie Mac seller-servicer of multifamily mortgage loans. Each of the Master
Servicer and the Special Servicer shall be deemed to have complied with the
foregoing provision if an Affiliate thereof has such fidelity bond coverage and,
by the terms of such fidelity bond, the coverage afforded
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thereunder extends to the Master Servicer or the Special Servicer, as the case
may be. Such fidelity bond shall provide that it may not be canceled without 30
days' prior written notice to the Trustee.
In addition, each of the Master Servicer and the Special
Servicer shall at all times during the term of this Agreement keep in force with
Qualified Insurers that possess (or whose obligations are guaranteed or backed,
in writing, by entities having) the Required Claims-Paying Ratings, a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers and employees in connection with its obligation to service the
Mortgage Loans for which it is responsible hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified Fannie Mae
or Freddie Mac seller-servicer of multifamily mortgage loans. Such errors and
omissions policy shall provide that it may not be canceled without 30 days'
prior written notice to the Trustee.
(e) All insurance coverage required to be maintained under
this Section 3.07 shall be obtained from Qualified Insurers.
SECTION 3.08. Enforcement of Alienation Clauses.
The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgage Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of
record, shall evaluate any right to transfer and, subject to Section 3.24, shall
enforce the restrictions contained in any Mortgage on transfers or further
encumbrances of the related Mortgaged Property and on transfers of interests in
the related Borrower, unless the Master Servicer or the Special Servicer, as
appropriate, has determined, in its reasonable, good faith judgment, that waiver
of such restrictions would be in accordance with the Servicing Standard;
provided that the Master Servicer shall not waive any right it has, or grant any
consent it is otherwise entitled to withhold, under any related
"due-on-encumbrance" clause unless and until (i) it has so notified the Special
Servicer in writing and provided the Special Servicer with any written or
electronic information (and a written recommendation and rationale therefor) in
the Master Servicer's possession regarding the affected Mortgage Loan that the
Special Servicer may reasonably request within ten Business Days of receiving
such written notice and (ii) the Special Servicer has consented to such action
(such consent to be given or withheld in accordance with the Servicing Standard
and to be deemed given if the Special Servicer does not object to such action
within ten Business Days after receiving such additional information from the
Master Servicer (or, if it did not request additional information, within ten
Business Days after receiving such written notice)); and provided, further, that
the Master Servicer may, at its option, consistent with the immediately
preceding proviso, seek the consent of the Special Servicer in connection with
the waiver of a "due-on-sale" clause; and provided, further, that neither the
Master Servicer nor the Special Servicer shall waive any right it has, or grant
any consent it is otherwise entitled to withhold, under any related
"due-on-encumbrance" clause until it has received written confirmation from each
Rating Agency that such action would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates; and provided, further, that, if it
involves any Mortgage Loan (other than a Mortgage Loan identified on Schedule
B-1G) that, individually or together with all other Mortgage Loans, if any, that
are in the same Cross-Collateralized Group as such Mortgage Loan or have the
same Borrower as such Mortgage Loan or have Borrowers that are known to the
Master Servicer be affiliated with the Borrower under such Mortgage Loan, has a
Cut-off Date Principal Balance of $5,000,000 or more, neither the Master
Servicer nor the Special Servicer shall
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waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-sale" clause until it has received written
confirmation from each Rating Agency that such action would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates; and
provided, further, that neither the Master Servicer nor the Special Servicer
shall (to the extent that it is within the control thereof to prohibit such
event) consent to the transfer of any Mortgaged Property which secures a
Cross-Collateralized Group unless all of the Mortgaged Properties securing such
Cross-Collateralized Group are transferred simultaneously by the respective
Borrower. After having made any determination to waive the Trust's rights under
a "due-on-sale" or "due-on encumbrance" clause, the Master Servicer or the
Special Servicer, as appropriate, shall deliver to the Trustee, each Rating
Agency, the Controlling Class Representative and the other such party an
Officer's Certificate setting forth the basis for such determination. The Master
Servicer and the Special Servicer shall each provide the other with all such
information as each may reasonably request in order to make such determination.
The Master Servicer shall not be liable to the Certificateholders, the Trust,
the Trustee, the Certificate Administrator or the other parties hereto for the
respective consents or failures to consent of the Special Servicer under this
Section 3.08 or for delays caused thereby, provided that (i) the Master Servicer
and the Special Servicer are not the same Person or Affiliates and (ii) the
Master Servicer has acted without willful misfeasance, bad faith or negligence.
The Special Servicer shall not be liable to the Certificateholders, the Trust,
the Trustee, the Certificate Administrator or the other parties hereto for the
respective consents or failures to consent of the Master Servicer under this
Section 3.08 or for delays caused thereby, provided that (i) the Special
Servicer and the Master Servicer are not the same Person or Affiliates and (ii)
the Special Servicer has acted without willful misfeasance, bad faith or
negligence. The Special Servicer accepts responsibility for any consents to be
given by it pursuant to this Agreement. If the Master Servicer or the Special
Servicer (i) collects an assumption fee in connection with any transfer or
proposed transfer of any interest in a Borrower or a Mortgaged Property and (ii)
fails to collect from such Borrower or the related transferee (or waives the
collection of) any fees, expenses or costs associated with that transfer or
proposed transfer which are required to be paid by such Borrower or related
transferee, under the terms of the related Mortgage Loan, then the Master
Servicer or the Special Servicer, as applicable, shall apply the assumption fee
to first cover any such fees, expenses or costs that would otherwise be payable
from or reimbursable out of the Trust Fund, and only the portion of such
assumption fee remaining after payment of such fees, expenses and costs shall be
payable to the Master Servicer and/or the Special Servicer, as applicable, as
additional compensation under Section 3.11 hereof; and provided, further that
the Master Servicer or the Special Servicer, as applicable, shall collect all
fees, costs and expenses with respect to such transfer unless the Master
Servicer or the Special Servicer, as applicable, determines that such collection
of any such fees, costs and expenses would violate the Servicing Standard.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 3.24, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties and other collateral securing such of the Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, including
pursuant to Section 3.20; provided that neither the Master Servicer nor the
Special Servicer shall, with respect to any ARD Loan after its Anticipated
Repayment Date, take any enforcement action with respect to the payment of
Post-
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ARD Additional Interest (other than the making of requests for its collection)
unless (i) the taking of an enforcement action with respect to the payment of
other amounts due under such Mortgage Loan is, in the good faith and reasonable
judgment of the Special Servicer, and without regard to such Post-ARD Additional
Interest, also necessary, appropriate and consistent with the Servicing Standard
or (ii) all other amounts due under such Mortgage Loan have been paid, the
payment of such Post-ARD Additional Interest has not been forgiven in accordance
with Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated Advance Interest. In connection with
the foregoing, in the event of a default under any Mortgage Loan or
Cross-Collateralized Group that is secured by real properties located in
multiple states, and such states include California or another state with a
statute, rule or regulation comparable to California's "one action rule", then
the Special Servicer shall consult Independent counsel regarding the order and
manner in which the Special Servicer should foreclose upon or comparably proceed
against such properties. The reasonable costs of such consultation shall be paid
by, and reimbursable to, the Special Servicer as a Servicing Advance. In
addition, all costs and expenses incurred in any such proceedings shall be paid
by, and reimbursable to, the Special Servicer as a Servicing Advance. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Trust, to make a bid on any Mortgaged Property at a
foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by the Special Servicer taking into
account the factors described in Section 3.18(e) and the results of any
appraisal obtained pursuant to the following sentence or otherwise, all such
bids to be made in a manner consistent with the Servicing Standard; provided,
however, that any such bid of the Special Servicer, on behalf of the Trust, with
respect to a Mortgaged Property located in either the Commonwealth of Puerto
Rico or the U.S. Virgin Islands shall be equal to the aggregate of all amounts
then due and owing under the related Mortgage Loan. If and when the Special
Servicer deems it necessary in accordance with the Servicing Standard for
purposes of establishing the fair market value of any Mortgaged Property
securing a defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, the Special Servicer is authorized to have an
Appraisal completed with respect to such property (the cost of which appraisal
shall be covered by, and be reimbursable as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust under such circumstances, in such manner or pursuant to such terms as
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (unless the
portion of such REO Property that is not treated as "foreclosure property" and
that is held by REMIC I or the related Loan REMIC, as applicable, at any given
time constitutes not more than a de minimis amount of the assets of REMIC I or
such Loan REMIC within the meaning of Treasury regulation Section
1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.17(a),
subject the Trust to the imposition of any federal income taxes under the Code.
In addition, the Special Servicer shall not acquire any personal property on
behalf of the Trust pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
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(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be covered by, and reimbursable as, a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not result in an Adverse REMIC
Event with respect to any REMIC Pool.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Master Servicer (to the extent it is allowed to do so herein)
nor the Special Servicer shall, on behalf of the Trust, obtain title to a
Mortgaged Property by foreclosure, deed in lieu of foreclosure or otherwise, or
take any other action with respect to any Mortgaged Property, if, as a result of
any such action, the Trustee, on behalf of the Certificateholders, could, in the
reasonable, good faith judgment of the Special Servicer, exercised in accordance
with the Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless:
(i) the Special Servicer has previously determined in
accordance with the Servicing Standard, based on a Phase I
Environmental Assessment (and any additional environmental testing that
the Special Servicer deems necessary and prudent) of such Mortgaged
Property conducted by an Independent Person who regularly conducts
Phase I Environmental Assessments and performed during the 12-month
period preceding any such acquisition of title or other action, that
the Mortgaged Property is in compliance with applicable environmental
laws and regulations and there are no circumstances or conditions
present at the Mortgaged Property relating to the use, management or
disposal of Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required
under any applicable environmental laws and regulations; or
(ii) in the event that the determination described in clause
(c)(i) above cannot be made, the Special Servicer has previously
determined in accordance with the Servicing Standard, on the same basis
as described in clause (c)(i) above, and taking into account the
coverage provided under the related Environmental Insurance Policy,
that it would maximize the recovery to the Certificateholders on a
present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders to be
performed at the related Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such remedial,
corrective and/or other further actions as are necessary to bring the
Mortgaged Property into compliance with applicable environmental laws
and regulations and to appropriately address any of the circumstances
and conditions referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer and the Controlling Class Representative, specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports. The cost of such Phase I Environmental Assessment
and any such additional environmental testing shall be advanced by the Master
Servicer at the direction of the Special Servicer given in accordance with the
Servicing Standard; provided, however, that the Master Servicer shall not be
obligated in connection therewith to advance any funds which, if so advanced,
would constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall
be subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any
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remedial, corrective or other further action contemplated by clause (ii) of the
preceding paragraph shall be payable out of the Collection Account pursuant to
Section 3.05.
(d) If neither of the conditions set forth in clause (i) and
clause (ii) of the first sentence of Section 3.09(c) has been satisfied with
respect to any Mortgaged Property securing a defaulted Mortgage Loan, the
Special Servicer shall take such action as is in accordance with the Servicing
Standard (other than proceeding against the Mortgaged Property) and, at such
time as it deems appropriate, may, on behalf of the Trust, release all or a
portion of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the
Master Servicer and the Controlling Class Representative monthly in writing as
to any actions taken by the Special Servicer with respect to any Mortgaged
Property as to which neither of the conditions set forth in clauses (i) and (ii)
of the first sentence of Section 3.09(c) has been satisfied, in each case until
the earliest to occur of satisfaction of either of such conditions, release of
the lien of the related Mortgage on such Mortgaged Property and the related
Mortgage Loan's becoming a Corrected Mortgaged Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) Annually in each January, the Special Servicer shall on a
timely basis forward to the Master Servicer, who shall promptly file same with
the IRS on a timely basis, the information returns with respect to the reports
of foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Mortgaged Property required by Sections
6050H (as applicable), 6050J and 6050P of the Code. Contemporaneously, the
Special Servicer shall deliver to the Master Servicer, who shall promptly
forward it to the Certificate Administrator, an Officer's Certificate stating
that all such information returns relating to Specially Serviced Mortgage Loans
and REO Properties that were required to be filed during the prior twelve (12)
months have been properly completed and timely provided to the Master Servicer.
The Master Servicer shall include any information with respect to the receipt of
any mortgage interest received in a trade or business with respect to any
Mortgaged Property or REO Property received from the Special Servicer and shall
file with the IRS the information returns required by Section 6050H of the Code.
All information returns shall be in form and substance sufficient to meet the
reporting requirements imposed by the relevant sections of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee, the Certificate Administrator, the Master Servicer
and the Controlling Class Representative. The Special Servicer shall maintain
accurate records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee, Certificate Administrator and the Master Servicer no later than
the third Business Day following such Final Recovery Determination.
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SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the Master Servicer shall
promptly so notify the Trustee and the applicable Custodian appointed on its
behalf and request delivery to it or its designee of the related Mortgage File
(such notice and request to be effected by delivering to the Trustee or the
applicable Custodian appointed on its behalf a Request for Release in the form
of Exhibit D-1 attached hereto, which Request for Release shall be accompanied
by the form of any release or discharge to be executed by the Trustee or the
applicable Custodian appointed on its behalf and shall include a statement to
the effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.04(a) have been or will be so deposited). Upon receipt of such Request
for Release, the Trustee or the applicable Custodian appointed on its behalf
shall promptly release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or its designee and shall deliver to the
Master Servicer or its designee such accompanying release or discharge, duly
executed. No expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to the Collection Account or the
Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer and receipt from the Master Servicer of a Request
for Release in the form of Exhibit D-1 attached hereto signed by a Servicing
Officer thereof, or upon request of the Special Servicer and receipt from the
Special Servicer of a Request for Release in the form of Exhibit D-2 attached
hereto, the Trustee or the applicable Custodian appointed on its behalf shall
release, or cause any related Custodian to release, such Mortgage File (or
portion thereof) to the Master Servicer or the Special Servicer, as the case may
be, or its designee. Upon return of such Mortgage File (or portion thereof) to
the Trustee or the related Custodian, or upon the Special Servicer's delivery to
the Trustee and the Certificate Administrator of an Officer's Certificate
stating that (i) such Mortgage Loan was liquidated and all amounts received or
to be received in connection with such liquidation that are required to be
deposited into the Collection Account pursuant to Section 3.04(a) have been or
will be so deposited or (ii) such Mortgage Loan has become an REO Property, a
copy of the Request for Release shall be returned by the Trustee or the
applicable Custodian appointed on its behalf to the Master Servicer or the
Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's
request therefor (or, if the Special Servicer notifies the Trustee of an
exigency, within such shorter period as is reasonable under the circumstances),
the Trustee shall execute and deliver to the Special Servicer, in the form
supplied to the Trustee by the Special Servicer, any court pleadings, requests
for trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Borrower on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity or to defend any legal action or counterclaim filed against the Trust,
the Master Servicer or the Special Servicer; provided that the Trustee may
alternatively execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, a limited power of attorney issued in
favor of the
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Special Servicer and empowering the Special Servicer to execute and deliver any
or all of such pleadings or documents on behalf of the Trustee (however, the
Trustee shall not be liable for any misuse of such power of attorney by the
Special Servicer). Together with such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee), the Special Servicer shall deliver to the Trustee an Officer's
Certificate requesting that such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Master Servicing and Special Servicing
Compensation; Interest on and Reimbursement of
Servicing Advances; Payment of Certain Expenses;
Obligations of the Trustee and any Fiscal Agent
regarding Back-up Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive monthly on each Master Servicer Remittance
Date the Master Servicing Fee with respect to each Mortgage Loan (including each
Specially Serviced Mortgage Loan) and each REO Mortgage Loan. As to each
Mortgage Loan and REO Mortgage Loan, the Master Servicing Fee payable in respect
of any Distribution Date shall accrue at the related Master Servicing Fee Rate
on the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as
the case may be, outstanding as of the Due Date in the Collection Period most
recently ended prior to such Distribution Date (that is, without any reductions
in such Stated Principal Balance that would occur on such Distribution Date) and
for the same number of days respecting which any related interest payment due on
such Mortgage Loan or deemed to be due on such REO Mortgage Loan is computed
under the terms of the related Mortgage Note (as such terms may be changed or
modified at any time following the Closing Date) and applicable law. The Master
Servicing Fee with respect to any Mortgage Loan or REO Mortgage Loan shall cease
to accrue if a Liquidation Event occurs in respect thereof. Master Servicing
Fees earned with respect to any Mortgage Loan or REO Mortgage Loan shall be
payable monthly from payments of interest on such Mortgage Loan or REO Revenues
allocable as interest on such REO Mortgage Loan, as the case may be. The Master
Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of
any Mortgage Loan or REO Mortgage Loan out of the portion of any related
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds allocable as
interest on such Mortgage Loan or REO Mortgage Loan, as the case may be. Subject
to the Master Servicer's right to employ Sub-Servicers, the right to receive the
Master Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement.
(b) The Master Servicer shall be entitled to receive the
following items as additional servicing compensation (the following items,
collectively, "Additional Master Servicing Compensation"):
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(i) that portion of any Net Default Charges collected with
respect to the Mortgage Pool during any Collection Period that, in each
case, accrued on the related Mortgage Loan when it was a Performing
Mortgage Loan;
(ii) 100% of any and all Net Assumption Fees, assumption
application fees, modification fees, extension fees, earnout fees,
charges for beneficiary statements or demands, amounts collected for
checks returned for insufficient funds and other loan processing fees,
in each case actually paid by a Borrower with respect to a Performing
Mortgage Loan;
(iii) any Prepayment Interest Excesses collected on the
Mortgage Loans;
(iv) interest or other income earned on deposits in the
Investment Accounts maintained by the Master Servicer, in accordance
with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to any such Investment Account for each
Collection Period and, further, in the case of a Servicing Account or
Reserve Account, only to the extent such interest or other income is
not required to be paid to any Borrower under applicable law or under
the related Mortgage); and
(v) any fee obtained by the Master Servicer from a Borrower
for extending a defaulted Mortgage Loan not yet required to be
transferred to the Special Servicer.
To the extent that amounts described in clauses (i) through
(iii), inclusive, of the preceding paragraph are collected by the Special
Servicer with respect to Performing Mortgage Loans, the Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly on each Master Servicer Remittance
Date the Special Servicing Fee with respect to each Specially Serviced Mortgage
Loan and each REO Mortgage Loan. As to each Specially Serviced Mortgage Loan and
REO Mortgage Loan, the Special Servicing Fee payable in respect of any
Distribution Date shall accrue (commencing on the date on which the subject
Mortgage Loan becomes a Specially Serviced Mortgage Loan or an REO Mortgage
Loan) at the Special Servicing Fee Rate on the Stated Principal Balance of such
Mortgage Loan or REO Mortgage Loan, as the case may be, outstanding as of the
Due Date in the Collection Period most recently ended prior to such Distribution
Date (that is, without any reductions in such Stated Principal Balance that
would occur on such Distribution Date) and for the same number of days
respecting which any related interest payment due on such Mortgage Loan or
deemed to be due on such REO Mortgage Loan is computed under the terms of the
related Mortgage Note (as such terms may be changed or modified following the
Closing Date) and applicable law. As to each Specially Serviced Mortgage Loan or
REO Mortgage Loan, the Special Servicing Fee shall be computed on the same
Interest Accrual Basis as is applicable to the accrual or deemed accrual of
interest on such Specially Serviced Mortgage Loan or REO Mortgage Loan, as the
case may be. The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Mortgage Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof or, in the case of a Specially
Serviced Mortgage Loan, as of the date it becomes a Corrected Mortgage Loan.
Earned but unpaid Special Servicing Fees shall be payable monthly out of general
collections on the
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Mortgage Loans and any REO Properties on deposit in the Collection Account
pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout
Fee shall be payable out of, and shall be calculated by application of the
Workout Fee Rate to, each payment of interest (other than Post-ARD Additional
Interest and Default Interest) and principal received from the related Borrower
on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The
Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable
if a Servicing Transfer Event occurs with respect thereto or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee
would become payable if and when such Mortgage Loan again became a Corrected
Mortgage Loan. If the Special Servicer is terminated (other than for cause),
including pursuant to Section 6.06, or resigns in accordance with Section 6.04,
it shall retain the right to receive any and all Workout Fees payable in respect
of Mortgage Loans that became Corrected Mortgage Loans during the period that it
acted as Special Servicer and that were still Corrected Mortgage Loans at the
time of such termination or resignation (and the successor Special Servicer
shall not be entitled to any portion of such Workout Fees), in each case until
the Workout Fee for any such loan ceases to be payable in accordance with the
preceding sentence.
As further compensation for its activities hereunder, the
Special Servicer shall also be entitled to receive a Liquidation Fee with
respect to each Specially Serviced Mortgage Loan or REO Property as to which it
receives any full, partial or discounted payoff from the related Borrower or any
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (other than in
connection with the purchase of any such Specially Serviced Mortgage Loan or REO
Property by the Master Servicer, the Special Servicer or a Controlling Class
Certificateholder pursuant to Section 3.18 or Section 9.01, or the repurchase of
any Mortgage Loan by the related Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement, or the acquisition thereof by the Sole
Certificateholder in exchange for all the Certificates pursuant to Section
9.01). As to each such Specially Serviced Mortgage Loan or REO Property, the
Liquidation Fee shall be payable out of, and shall be calculated by application
of the applicable Liquidation Fee Rate to, any such full, partial or discounted
payoff, Insurance Proceeds, Condemnation Proceeds and/or Liquidation Proceeds
received or collected in respect thereof (other than any portion of such payment
or proceeds that represents Post-ARD Additional Interest, Default Interest or a
Prepayment Premium). The Liquidation Fee with respect to any such Specially
Serviced Mortgage Loan will not be payable if such Mortgage Loan becomes a
Corrected Mortgage Loan. Notwithstanding anything herein to the contrary, no
Liquidation Fee will be payable in connection with the receipt of, or out of,
Liquidation Proceeds collected as a result of the purchase or other acquisition
of any Specially Serviced Mortgage Loan or REO Property described in the
parenthetical to the first sentence of this paragraph.
The Special Servicer's right to receive the Special Servicing
Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement.
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(d) The Special Servicer shall be entitled to receive the
following items as additional special servicing compensation (the following
items, collectively, the "Additional Special Servicing Compensation"):
(i) any Net Default Charges collected with respect to the
Mortgage Pool during any Collection Period that, in each case, accrued
with respect to the related Mortgage loan while it was a Specially
Serviced Mortgage Loan or that accrued with respect to a REO Mortgage
Loan;
(ii) any Net Assumption Fees, assumption application fees,
modification fees, extension fees, earnout fees, charges for
beneficiary statements or demands and amounts collected for checks
returned for insufficient funds that are actually received on or with
respect to Specially Serviced Mortgage Loans or REO Mortgage Loans; and
(iii) interest or other income earned on deposits in the REO
Account, if established, in accordance with Section 3.06(b) (but only
to the extent of the Net Investment Earnings, if any, with respect to
the REO Account for each Collection Period).
To the extent that amounts described in clauses (i) through
(iii), inclusive, of the preceding paragraph are collected by the Master
Servicer with respect to Specially Serviced Mortgage Loans, the Master Servicer
shall promptly pay such amounts to the Special Servicer and shall not be
required to deposit such amounts in the Collection Account pursuant to Section
3.04(a).
(e) The Master Servicer and the Special Servicer shall each be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts due and owing to any of
Sub-Servicers retained by it (including, except as provided in Section 3.22, any
termination fees) and the premiums for any blanket policy or the standby fee or
similar premium for any master force place policy obtained by it insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the Collection Account, the Servicing
Accounts, the Reserve Accounts or the REO Account, and neither the Master
Servicer nor the Special Servicer shall be entitled to reimbursement for any
such expense incurred by it except as expressly provided in this Agreement. If
the Master Servicer is required to make any Servicing Advance hereunder at the
discretion of the Special Servicer in accordance with Section 3.19 or otherwise,
the Special Servicer shall promptly provide the Master Servicer with such
documentation regarding the subject Servicing Advance as the Master Servicer may
reasonably request.
(f) If the Master Servicer or Special Servicer is required
under this Agreement to make a Servicing Advance, but neither does so within ten
days after such Advance is required to be made, the Trustee shall, if it has
actual knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure to, as applicable, the
Master Servicer or the Special Servicer. If such Advance is not made by the
Master Servicer or the Special Servicer within three Business Days after such
notice, then (subject to Section 3.11(h) below) the Trustee or a Fiscal Agent
appointed thereby shall make such Advance. If any Fiscal Agent makes any such
Servicing Advance, the Trustee shall be deemed not to be in default under this
Agreement for failing to do so.
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(g) The Master Servicer, the Special Servicer, the Trustee and
any Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby (with its own funds), for so long as such Servicing Advance
is outstanding. Such interest with respect to any Servicing Advance shall be
payable during the Collection Period in which such Advance is reimbursed: (i)
first, out of any and all Default Charges collected with respect to the entire
Mortgage Pool during such Collection Period; and (ii) then, after such Advance
is reimbursed, but only if and to the extent that such Default Charges are
insufficient to cover such Advance Interest, out of general collections on the
Mortgage Loans and REO Properties on deposit in the Collection Account. The
Master Servicer shall reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as appropriate, for any Servicing Advance made by any such Person
as soon as practicable after funds available for such purpose are deposited in
the Collection Account.
(h) Notwithstanding anything to the contrary set forth herein,
none of the Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent shall be required to make any Servicing Advance that it determines in its
reasonable, good faith judgment would constitute a Nonrecoverable Servicing
Advance. The determination by any Person with an obligation hereunder to make
Servicing Advances that it has made a Nonrecoverable Servicing Advance or that
any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be made by such Person in its reasonable, good faith
judgment and shall be evidenced by an Officer's Certificate delivered promptly
to the Depositor and the Trustee (unless it is the Person making such
determination), which shall provide a copy thereof to the Controlling Class
Representative, setting forth the basis for such determination, accompanied by a
copy of an Appraisal (if and when available) of the related Mortgaged Property
or REO Property performed within the 12 months preceding such determination, and
further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing, the Trustee and
any Fiscal Agent shall be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular Servicing Advance, and the Master Servicer
and the Special Servicer shall each be entitled to conclusively rely on any
determination of nonrecoverability that may have been made by the other such
party with respect to a particular Servicing Advance. A copy of any such
Officer's Certificate (and accompanying information) of the Master Servicer
shall also be delivered promptly to the Special Servicer, a copy of any such
Officer's Certificate (and accompanying information) of the Special Servicer
shall also be promptly delivered to the Master Servicer, and a copy of any such
Officer's Certificates (and accompanying information) of the Trustee or the
Fiscal Agent shall also be promptly delivered to the Master Servicer and the
Special Servicer.
(i) Notwithstanding anything to the contrary set forth herein,
the Master Servicer shall (at the direction of the Special Servicer if a
Specially Serviced Mortgage Loan or an REO Property is involved) pay directly
out of the Collection Account any servicing expense that, if paid by the Master
Servicer or the Special Servicer, would constitute a Nonrecoverable Servicing
Advance; provided that the Master Servicer (or the Special Servicer, if a
Specially Serviced Mortgage Loan or an REO Property is involved) has determined
in accordance with the Servicing Standard that making such payment is in the
best interests of the Certificateholders (as a collective whole), as evidenced
by an Officer's Certificates delivered promptly to the Depositor and the
Trustee, which shall provide a copy thereof to the Controlling Class
Representative, setting forth the
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basis for such determination and accompanied by any information that such Person
may have obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
delivered promptly to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
(but in any event not later than 60 days) after the related Mortgage Loan
becomes a Specially Serviced Mortgage Loan; provided that the Special Servicer
shall be entitled to reimbursement of the reasonable out-of-pocket expenses
incurred by it in connection therewith as provided for in Section 3.05(a).
Beginning in 2001, the Master Servicer (or, in the case of an REO Property or a
Mortgaged Property that secures a Specially Serviced Mortgage Loan, the Special
Servicer) shall at its expense (except as provided in the prior sentence)
perform or cause to be performed an inspection of each Mortgaged Property (i) at
least once every two years, in the case of each Mortgage Loan with an unpaid
principal balance under $2,000,000, and (ii) at least once every calendar year,
in the case of all other Mortgage Loans, in any event if the Special Servicer
has not already done so during that period pursuant to the preceding sentence.
The Master Servicer and the Special Servicer shall each prepare a written report
of each such inspection performed by it or on its behalf that sets forth in
detail the condition of the Mortgaged Property and that specifies the occurrence
or existence of: (i) any sale, transfer or abandonment of the Mortgaged Property
of which the Master Servicer or Special Servicer, as applicable, is aware, (ii)
any change in the condition, occupancy or value of the Mortgaged Property that
the Master Servicer or the Special Servicer, as applicable, in accordance with
the Servicing Standard, considers material, or (iii) any waste committed on the
Mortgaged Property that the Master Servicer or the Special Servicer, as the case
may be, in accordance with the Servicing Standard, considers material. The
Master Servicer and the Special Servicer shall each deliver to the Certificate
Administrator and each other a copy (or image in suitable electronic media) of
each such written report prepared by it within 60 days of completion of the
related inspection. The Certificate Administrator shall, upon request and to the
extent such items have been delivered to the Certificate Administrator by the
Master Servicer or the Special Servicer, as applicable, deliver to the
Depositor, the Underwriters, the related Mortgage Loan Seller, the Controlling
Class Representative, any Certificateholder or, to the extent the Trustee has in
accordance with Section 5.06(b) confirmed the Ownership Interest in Certificates
held thereby, any Certificate Owner, a copy (or image in suitable electronic
media) of each such written report prepared by the Master Servicer or the
Special Servicer.
(b) The Special Servicer, in the case of any Specially
Serviced Mortgage Loan and any REO Property, and the Master Servicer, in the
case of each Performing Mortgage Loan, shall make reasonable efforts to collect
promptly (from each related Borrower in the case of a Mortgage Loan) annual,
quarterly, monthly and other periodic operating statements and related rent
rolls of the related Mortgaged Property or REO Property (and, in the case of a
Mortgage Loan, annual and quarterly financial statements of the related
Borrower), whether or not delivery of such items is required pursuant to the
terms of the related Mortgage (which efforts shall include at least three phone
calls, followed by confirming correspondence, requesting such delivery). The
Special
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Servicer, in the case of the Specially Serviced Mortgage Loans and REO Mortgage
Loans, and the Master Servicer, in the case of all other Mortgage Loans, shall
promptly review and analyze, and deliver to the Certificate Administrator copies
of, all such items as may be collected pursuant to this Agreement.
The Master Servicer shall obtain (and shall deliver to the
requesting party and the Certificate Administrator) such additional information
with respect to the matters addressed in the collected operating statements and
rent roll items and written reports, such as the Operating Statement Analysis
Reports, NOI Adjustment Worksheets or property inspections, as the Special
Servicer and/or the Controlling Class Representative may reasonably request, and
the Master Servicer shall cooperate with and reasonably assist the Special
Servicer in making direct inquiries with any Borrower to the extent any such
direct inquiry by the Special Servicer would not violate the terms of any
applicable Sub-Servicing Agreement.
Upon the discovery by the Master Servicer or the Special
Servicer, of any non-monetary default pursuant to the related Mortgage Loan
documents, including a failure by the related Borrower to timely deliver to the
Master Servicer or Special Servicer operating statements and rent rolls as
provided above, the Master Servicer and Special Servicer shall (as applicable)
notify and confirm to each other the nature of such default, identify the
Mortgage Loan and provide the Mortgage Loan identification number. During the
continuance of such a default, the Master Servicer shall determine whether or
not to consent to the release or cause the release of any funds from a related
Servicing Account or Reserve Account (except to pay current or past-due taxes,
assessments, ground rents and insurance premiums) to the Borrower or another
Person, and shall (as applicable) so inform the Borrower or the Special Servicer
(who shall inform the Borrower).
Within 60 days after receipt by the Master Servicer or 45 days
after receipt by the Special Servicer of any annual operating statements with
respect to any Mortgaged Property or REO Property, as applicable, each of the
Master Servicer and the Special Servicer shall prepare or update (and, in the
case of the Special Servicer, forward within such 45-day period to the Master
Servicer the related data fields in an electronic format reasonably acceptable
to the recipient) an NOI Adjustment Worksheet for such Mortgaged Property or REO
Property (with the related operating statements and rent rolls attached thereto
as an exhibit).
Within 60 days after receipt by the Master Servicer, as to
Performing Mortgage Loans, and within 45 days after receipt by the Special
Servicer, as to Specially Serviced Mortgage Loans, of any annual, quarterly,
monthly or other periodic operating statements or related rent rolls with
respect to any Mortgaged Property or REO Property, and commencing for the
quarter ending on September 30, 2000 for current twelve (12) months trailing
data and January 2, 2001 for annual, year end data, the Master Servicer or
Special Servicer, as applicable, shall, based upon such operating statements and
rent rolls, prepare (or, if previously prepared, update) the written analysis of
operations (the "Operating Statement Analysis Report"). The Special Servicer
shall remit each Operating Statement Analysis Report prepared by it or related
data fields, together with the underlying operating statements and rent rolls,
to the Master Servicer in a format reasonably acceptable to the Master Servicer.
All Operating Statement Analysis Reports and NOI Adjustment
Worksheets shall be maintained by the Master Servicer with respect to each
Mortgaged Property and REO Property, and
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the Master Servicer shall forward copies thereof, promptly following the initial
preparation and each material revision thereof, to the Certificate
Administrator, together with the related operating statements and rent rolls.
The Certificate Administrator shall, upon request and to the extent such items
have been delivered to the Certificate Administrator by the Master Servicer,
deliver to the Trustee, the Underwriters, the related Mortgage Loan Seller, the
Special Servicer, the Controlling Class Representative, any Certificateholder
or, to the extent the Certificate Administrator has in accordance with Section
5.06(b) confirmed the Ownership Interest in the Certificates held thereby, any
Certificate Owner, a copy of each such Operating Statement Analysis Report (or
update thereof), each such NOI Adjustment Worksheet and the related operating
statement and rent rolls. Each such Operating Statement Analysis Report and NOI
Adjustment Worksheet shall be substantially in the form of Exhibit E-8 and
Exhibit E-7, respectively, attached hereto (or, at the discretion of Master
Servicer, provided that no less information is provided than is set forth in
Exhibit E-8 and Exhibit E-7, respectively, attached hereto, in a CMSA format).
If, with respect to any Mortgage Loan (other than a Specially
Serviced Mortgage Loan), the Special Servicer has any questions for the related
Borrower based upon the information received by the Special Servicer pursuant to
Section 3.12(a) or 3.12(b), the Master Servicer shall, in this regard and
without otherwise changing or modifying its duties hereunder, reasonably
cooperate with the Special Servicer in assisting the Special Servicer to contact
and solicit information from such Borrower.
(c) Not later than 12:00 p.m. (New York City time) on the
first Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer (and, upon
request, the Controlling Class Representative) the following reports (or data
files relating to reports of the Master Servicer) with respect to the Specially
Serviced Mortgage Loans and any REO Properties, providing the required
information as of such Determination Date: (i) a Property File; (ii) a Loan
Periodic Update File; and (iii) a Financial File. At or before 12:00 p.m. (New
York City time) on the first Business Day following each Determination Date, the
Special Servicer shall prepare and deliver or cause to be delivered to the
Master Servicer the following reports or related data fields reflected in the
reports reasonably requested with respect to the Specially Serviced Mortgage
Loans and any REO Properties, providing the information required of the Special
Servicer in an electronic format reasonably acceptable to the Master Servicer as
of such Determination Date: (i) a Delinquent Loan Status Report; (ii) a
Comparative Financial Status Report; (iii) an Historical Liquidation Report;
(iv) an Historical Loan Modification Report; and (v) an REO Status Report.
(d) Commencing in October 2000, no later than 2:00 p.m. (New
York City time), on the third Business Day prior to each Distribution Date, the
Master Servicer shall prepare (if and to the extent necessary) and deliver or
cause to be delivered to the Certificate Administrator, in electronic format
reasonably acceptable to the Certificate Administrator, each of the files and
reports comprising the CMSA Investor Reporting Package (excluding any Collateral
Summary and Bond File), in each case providing the most recent information as of
the related Determination Date. No later than 2:00 p.m. (New York City time) on
the third Business Day prior to the Distribution Date occurring in September
2000, the Master Servicer shall prepare and deliver to the Certificate
Administrator, in electronic format reasonably acceptable to the Certificate
Administrator, all loan level information regarding the Mortgage Loans that is
necessary for the Certificate Administrator to make the calculations and prepare
the reports for which the Certificate Administrator is
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responsible pursuant to Section 4.01, Section 4.02, Section 4.05 or any other
section of this Agreement. The Master Servicer shall deliver to the Certificate
Administrator by 2:00 p.m. New York City time on each P&I Advance Date the Paid
After Determination Date Report, reflecting late collections of Monthly Payments
received by the Master Servicer after the Determination Date but prior to the
Master Servicer Remittance Date. The Loan Periodic Update File and any written
information supplemental thereto shall include such information with respect to
the Mortgage Loans that is required by the Certificate Administrator for
purposes of making the calculations and preparing the reports for which the
Certificate Administrator is responsible pursuant to Section 4.01, Section 4.02,
Section 4.05 or any other section of this Agreement, as set forth in written
specifications or guidelines issued by the Certificate Administrator from time
to time. Such supplemental information may be delivered by the Master Servicer
to the Certificate Administrator by telecopy or in such electronic or other form
as may be reasonably acceptable to the Certificate Administrator and the Master
Servicer. The Special Servicer shall from time to time (and, in any event, as
may be reasonably required by the Master Servicer) provide the Master Servicer
with such information in its possession regarding the Specially Serviced
Mortgage Loans and REO Properties as may be necessary for the Master Servicer to
prepare each report and any supplemental information to be provided by the
Master Servicer to the Trustee and the Certificate Administrator .
(e) The Special Servicer shall deliver to the Master Servicer
the reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Certificate Administrator the reports set forth in
Section 3.12(d), in an electronic format reasonably acceptable to the Special
Servicer, the Master Servicer and the Certificate Administrator. The Master
Servicer may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer pursuant to Section 3.12(b) and Section
3.12(c). The Certificate Administrator may, absent manifest error, conclusively
rely on the reports to be provided by the Master Servicer pursuant to Section
3.12(d). In the case of information or reports to be furnished by the Master
Servicer to the Certificate Administrator pursuant to Section 3.12(d), to the
extent that such information or reports are, in turn, based on information or
reports to be provided by the Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c) and to the extent that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12(b) or Section
3.12(c), the Master Servicer shall have no obligation to provide such
information or reports to the Certificate Administrator until it has received
the requisite information or reports from the Special Servicer, and the Master
Servicer shall not be in default hereunder due to a delay in providing the
reports required by Section 3.12(d) caused by the Special Servicer's failure to
timely provide any information or report required under Section 3.12(b) or
Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
Special Servicer as the case may be, would violate any applicable law or any
provision of a Mortgage Loan document prohibiting disclosure of information with
respect to the Mortgage Loans or Mortgaged Properties or would constitute a
waiver of the attorney-client privilege on behalf of the Trust. The Master
Servicer and Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with applicable law and the Servicing Standard. The Master Servicer or the
Special Servicer may affix to any
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information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(g) The Master Servicer hereby acknowledges that the Depositor has provided to
the Master Servicer the initial data (as of the Cut-Off 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,
the Property File and the Comparative Financial Report.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will
deliver to the Trustee, with a copy to the Depositor, the Certificate
Administrator, and each other, on or before March 15 of each year, beginning
March 15, 2001, an Officer's Certificate (the "Annual Performance
Certification") stating that (i) a review of the activities of the Master
Servicer or the Special Servicer, as the case may be, during the preceding
calendar year, and of its performance under this Agreement during such calendar
year, has been made under the signing officer's supervision, (ii) to the best of
such officer's knowledge, based on such review, the Master Servicer or the
Special Servicer, as the case may be, has in all material respects fulfilled its
obligations under this Agreement throughout the preceding calendar year, or, if
there has been a material default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof, and (iii) the Master Servicer or the Special Servicer, as the case may
be, has received no notice regarding the qualification or status of any REMIC
Pool as a REMIC or the status of either Grantor Trust Pool as a Grantor Trust or
otherwise asserting a tax (other than ad valorem real property taxes or other
similar taxes on REO Property) on the income or assets of any portion of the
Trust Fund from the IRS or from any other governmental agency or body or, if it
has received any such notice, specifying the details thereof; provided that
neither the Master Servicer nor the Special Servicer shall be required to
deliver its Annual Performance Certification until May 15 in any given year so
long as it has received written confirmation from the Depositor or the
Certificate Administrator that a Report on Form 10-K is not required to be filed
in respect of the Trust for the preceding calendar year. The signing officer
shall have no personal liability with respect to the content of any such
statement, and the Master Servicer or the Special Servicer, as the case may be,
shall be deemed to have made such statement and shall assume any liability
resulting therefrom.
The Master Servicer and the Special Servicer will each
reasonably cooperate with the Depositor in conforming any Officer's Certificate
delivered pursuant to this Section 3.13 to requirements imposed by the
Commission on the Depositor in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act.
SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 of each year, beginning March 15, 2001,
each of the Master Servicer and the Special Servicer, at its expense, shall
cause a firm of independent public accountants (which may also render other
services to the Master Servicer or Special Servicer, as applicable) and that is
a member of the American Institute of Certified Public Accountants to furnish a
statement (the "Annual Accountant's Report") to the Depositor, the Controlling
Class
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Representative, the Certificate Administrator and the Trustee to the effect that
(i) it has obtained a letter of representation regarding certain matters from
the management of the Master Servicer or the Special Servicer, as the case may
be, which includes an assertion that the Master Servicer or the Special
Servicer, as the case may be, has complied with certain minimum mortgage loan
servicing standards (to the extent applicable to commercial and multifamily
mortgage loans), identified in the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America,
with respect to the servicing of commercial and multifamily mortgage loans
during the most recently completed calendar year, and (ii) on the basis of an
examination conducted by such firm in accordance with standards set by the
American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications as may be appropriate; provided that neither the Master Servicer
nor the Special Servicer will be required to cause the delivery of its Annual
Accountant's Report until May 15 in any given year so long as it has received
written confirmation from the Depositor or the Certificate Administrator that a
Report on From 10-K is not required to be filed in respect of the Trust for the
preceding calendar year. In rendering its report such firm may rely, as to
matters relating to the direct servicing of commercial and multifamily mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered within one year of such report)
with respect to those Sub-Servicers.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall
provide or cause to be provided to the other such party, the Depositor, the
Trustee, the Certificate Administrator, the Controlling Class Representative and
the Rating Agencies, and to the OTS, the FDIC, and any other federal or state
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans and
the other assets of the Trust Fund that are within its control which may be
required by this Agreement or by applicable law, except to the extent that (i)
such documentation is subject to a claim of privilege under applicable law that
has been asserted by the Certificateholders and of which the Master Servicer has
received written notice or (ii) the Master Servicer or the Special Servicer is
otherwise prohibited from making such disclosure under applicable law, or may be
subject to liability for making such disclosure in the opinion of the counsel
for the Master Servicer or Special Servicer (which counsel may be a salaried
employee of the Master Servicer or Special Servicer). Such access shall be
afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it. The Master Servicer and
the Special Servicer shall each be permitted to affix a reasonable disclaimer to
any information provided by it pursuant to this Section 3.15.
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SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate of
sale shall be issued to the Trustee or its nominee on behalf of the
Certificateholders. The Special Servicer shall sell any REO Property by the end
of the third calendar year following the year in which the Trust acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code,
unless the Special Servicer either (i) applies, more than 60 days prior to the
expiration of such liquidation period, and is granted an extension of time (an
"REO Extension") by the Internal Revenue Service to sell such REO Property or
(ii) obtains for the Trustee and the Tax Administrator an Opinion of Counsel,
addressed to the Trustee and the Tax Administrator, to the effect that the
holding by the Trust of such REO Property subsequent to the end of the third
calendar year following the year in which such acquisition occurred, will not
result in the imposition of taxes on "prohibited transactions" of any REMIC Pool
as defined in Section 860F of the Code or cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding. If the
Special Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell such REO Property within such extended period as is permitted by such REO
Extension or such Opinion of Counsel, as the case may be. Any reasonable expense
incurred by the Special Servicer in connection with its being granted the REO
Extension contemplated by clause (i) of the second preceding sentence or its
obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, shall be an expense of the Trust payable out of the
Collection Account pursuant to Section 3.05(a). Any REO Extension shall be
requested by the Special Servicer no later than 60 days before the end of the
third calendar year following the year in which the Trust acquired ownership of
the related REO Property.
(b) The Special Servicer shall segregate and hold all funds collected and
received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), to be held on behalf of the Trustee in trust for the benefit of
the Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property. The REO Account shall be an Eligible Account and may
consist of one account for all the REO Properties. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within one (1) Business
Day of receipt, all REO Revenues, Liquidation Proceeds (net of all Liquidation
Expenses paid therefrom) and Insurance Proceeds received in respect of an REO
Property. The Special Servicer is authorized to pay out of related Liquidation
Proceeds any Liquidation Expenses incurred in respect of an REO Property and
outstanding at the time such proceeds are received. Funds in the REO Account may
be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall be entitled to make withdrawals from the REO Account to
pay itself, as additional servicing compensation in accordance with Section
3.11(d), interest and investment income earned in respect of amounts held in the
REO Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the REO Account for any Collection Period).
The Special Servicer shall give notice to the other parties hereto of the
location of the REO Account when first established and of the new location of
the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only
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to the extent of amounts on deposit in the REO Account relating to such REO
Property. At or before 1:00 p.m. New York City time on the Business Day
following the end of each Collection Period, the Special Servicer shall withdraw
from the REO Account and deposit into the Collection Account or deliver to the
Master Servicer (which shall deposit such amounts into the Collection Account)
the aggregate of all amounts received in respect of each REO Property during
such Collection Period, net of any withdrawals made out of such amounts pursuant
to the preceding sentence; provided that the Special Servicer may retain in the
REO Account such portion of proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
maintenance and disposition of the related REO Property (including without
limitation the creation of a reasonable reserve for repairs, replacements and
necessary capital improvements and other related expenses), such reserve not to
exceed an amount sufficient to cover such items to be incurred during the
following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property securing a
defaulted Mortgage Loan, the Special Servicer shall review the operation of such
Mortgaged Property and determine the nature of the income that would be derived
from such property if it were acquired by the Trust. If the Special Servicer
determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the
tax imposed on "prohibited transactions" under Section 860F of the
Code (either such tax referred to herein as an "REO Tax"), then such
Mortgaged Property may be Directly Operated by the Special Servicer as
REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could
result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate
such property, or the performance of some services by an Independent
Contractor with respect to such property, or another method of
operating such property would not result in income subject to an REO
Tax, then the Special Servicer may (provided, that in the good faith
and reasonable judgment of the Special Servicer, it is commercially
reasonable) acquire such Mortgaged Property as REO Property and so
lease or operate such REO Property; or
(iii) It would not be commercially reasonable to operate and manage such
property as REO Property without the Trust incurring or possibly
incurring an REO Tax on income from such property, then the Special
Servicer shall deliver to the Tax Administrator, in writing, a
proposed plan (the "Proposed Plan") to manage such property as REO
Property. Such plan shall include potential sources of income, and to
the extent reasonably possible, estimates of the amount of income from
each such source. Within a reasonable period of time after receipt of
such plan, the Tax Administrator shall consult with the Special
Servicer
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and shall advise the Special Servicer of the Trust's federal income
tax reporting position with respect to the various sources of income
that the Trust would derive under the Proposed Plan. In addition, the
Tax Administrator shall (to the maximum extent reasonably possible)
advise the Special Servicer of the estimated amount of taxes that the
Trust would be required to pay with respect to each such source of
income from such REO Property. After receiving the information
described in the two preceding sentences from the Tax Administrator,
the Special Servicer shall either (A) implement the Proposed Plan
(after acquiring the respective Mortgaged Property as REO Property) or
(B) manage and operate such property in a manner that would not result
in the imposition of an REO Tax on the income derived from such
property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the good faith and reasonable judgment of
the Special Servicer as to which means would be in the best interest of the
Certificateholders by maximizing (to the extent commercially feasible) the net
after-tax REO Revenues received by the Trust with respect to such property
without materially impairing its marketability and, to the extent consistent
with the foregoing, in the same manner as would prudent mortgage loan servicers
and asset managers operating acquired mortgaged property comparable to such REO
Property. Both the Special Servicer and the Tax Administrator may consult with
counsel knowledgeable in such matters at (to the extent reasonable) the expense
of the Trust in connection with determinations required under this Section
3.17(a). Neither the Special Servicer nor the Tax Administrator shall be liable
to the Certificateholders, the Trust, the other parties hereto or each other for
errors in judgment made in good faith in the reasonable exercise of their
discretion or in reasonable and good faith reliance on the advice of
knowledgeable counsel while performing their respective responsibilities under
this Section 3.17(a) or, to the extent it relates to federal income tax
consequences for the Trust, Section 3.17(b) below. Nothing in this Section
3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO
Property pursuant to the terms and subject to the conditions of Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its prompt disposition and sale in
a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as contemplated by Section 3.17(a), result in the receipt by any REMIC
Pool of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or in an Adverse REMIC Event in respect of any such
REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not
enter into any lease, contract or other agreement that causes any REMIC Pool to
receive, and (unless required to do so under any lease, contract or agreement to
which the Special Servicer or the Trust may become a party or successor to a
party due to a foreclosure, deed-in-lieu of foreclosure or other similar
exercise of a creditor's rights or remedies with respect to a Mortgage Loan)
shall not cause or allow any REMIC Pool to receive, any "net income from
foreclosure property" that is subject to taxation under the REMIC Provisions.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are consistent
with the Servicing Standard and, consistent therewith, shall withdraw from the
REO Account, to the extent of amounts on deposit therein with respect to any REO
Property, funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including:
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(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in the preceding sentence
with respect to such REO Property, the Special Servicer shall direct the Master
Servicer to make (and the Master Servicer shall so make) Servicing Advances in
such amounts as are necessary for such purposes unless (as evidenced in the
manner contemplated by Section 3.11(h)) the Special Servicer or the Master
Servicer determines, in its reasonable, good faith judgment, that such payment
would be a Nonrecoverable Servicing Advance.
(c) The Special Servicer may (and, except as otherwise permitted by Section
3.17(a), shall if it would avoid an Adverse REMIC Event) contract with any
Independent Contractor for the operation and management of any REO Property,
provided that:
(i) the terms and conditions of any such contract may not be inconsistent
herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of
the Trust) shall be reasonable and customary in consideration of the
nature and locality of the REO Property;
(iii) any such contract shall be consistent with the provisions of Treasury
Regulation Section 1.856-4(b)(5) and, to the extent consistent
therewith, shall be administered to require that the Independent
Contractor, in a timely manner, (A) to the extent of available revenue
from the REO Property, pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including, those listed in Section 3.17(b) above, and (B) remit all
related revenues collected (net of its fees and such costs and
expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any such
contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties
and obligations hereunder with respect to the operation and management
of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the
same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the
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Special Servicer by such Independent Contractor, and nothing in this Agreement
shall be deemed to limit or modify such indemnification.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or purchase
of, a Mortgage Loan or REO Property only on the terms and subject to the
conditions set forth in this Section 3.18 or as otherwise expressly provided in
or contemplated by Sections 2.02, 2.03 and 9.01.
(b) If the Special Servicer has determined, in its reasonable, good faith
judgment, that any Defaulted Mortgage Loan will become subject to foreclosure
proceedings and that the sale of such Mortgage Loan under the circumstances
provided in this Section 3.18 is in accordance with the Servicing Standard, then
the Special Servicer shall promptly so notify in writing the Certificate
Administrator, the Trustee and the Master Servicer, and the Certificate
Administrator shall, within five days after receipt of such notice, so notify
all the Controlling Class Certificateholders. Any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders may, at its
or their option, within 15 days after receipt of such notice, purchase any
Defaulted Mortgage Loan out of the Trust Fund at a cash price equal to the
applicable Purchase Price; provided that, if more than one Controlling Class
Certificateholder or group of Controlling Class Certificateholders desire to
purchase such Defaulted Mortgage Loan, preference shall be given to the
Controlling Class Certificateholder or group of Controlling Class
Certificateholders with the largest Percentage Interest in the Controlling
Class; and provided, further that, if more than one Controlling Class
Certificateholder or group of Controlling Class Certificateholders have the same
Percentage Interest in the Controlling Class, preference shall be given to the
Controlling Class Certificateholder or group of Controlling Class
Certificateholders which first notifies the Special Servicer of its intention to
purchase such Defaulted Mortgage Loan. The Purchase Price for any Defaulted
Mortgage Loan purchased under this Section 3.18(b) shall be deposited into the
Collection Account, and the Trustee, upon receipt of an Officer's Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Certificateholder(s) effecting such
purchase (or to its or their designee) the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it and are reasonably necessary to
vest in such Certificateholder(s) ownership of such Mortgage Loan (subject to
any rights of the Master Servicer or the applicable Designated Sub-Servicer to
primary service such Mortgage Loan. In connection with any such purchase, the
Special Servicer shall deliver the related Servicing File to the
Certificateholder(s) effecting such purchase (or to its or their designee).
(c) If none of the Controlling Class Certificateholders has purchased any
Defaulted Mortgage Loan described in the first sentence of Section 3.18(b)
within 15 days of such Holders' having received notice in respect thereof
pursuant to Section 3.18(b) above, then the Certificate Administrator shall
within five days of the end of such 15-day period send notice to the Master
Servicer and the Special Servicer that such Mortgage Loan was not purchased by
such Certificateholder(s), and either the Special Servicer or the Master
Servicer (in that order of priority) may, at its option, within 15 days after
receipt of such notice, purchase (or designate an Affiliate thereof to purchase)
such Mortgage Loan out of the Trust Fund at a cash price equal to the Purchase
Price. The Purchase Price for any such Mortgage Loan purchased under this
Section 3.18(c) shall be deposited into the Collection Account, and the Trustee,
upon receipt of an Officer's Certificate
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from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Master Servicer or the Special Servicer
(or the designated Affiliate thereof), as applicable, the related Mortgage File,
and shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the Master Servicer or the Special Servicer (or the
designated Affiliate thereof), as applicable, the ownership of such Mortgage
Loan (subject to any rights of the Master Servicer or applicable Designated
Sub-Servicer to primary service (or to perform select servicing functions with
respect to) such Mortgage Loan). In connection with any such purchase by the
Master Servicer (or any designated Affiliate thereof), the Special Servicer
shall deliver the related Servicing File to the Master Servicer (or any
designated Affiliate thereof). For purposes of the other sections of this
Agreement, any purchase of a Defaulted Mortgage Loan by a designated Affiliate
of the Master Servicer or Special Servicer pursuant to this Section 3.18(c)
shall be deemed a purchase of such Defaulted Mortgage Loan by the Master
Servicer or the Special Servicer, as applicable.
(d) Subject to Section 3.24, the Special Servicer may offer to sell any
Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or
Section 3.18(c) above, if and when the Special Servicer determines, consistent
with the Servicing Standard, that such a sale would be in the best economic
interests of the Certificateholders (as a collective whole). Such offer shall be
made in a commercially reasonable manner (which, for purposes hereof, includes
an offer to sell without representation or warranty other than customary
warranties of title and condition, if liability for breach thereof is limited to
recourse against the Trust) for a period of not less than 15 days. Subject to
Section 3.18(h) and Section 3.24, the Special Servicer shall accept the highest
cash bid received from any Person that constitutes a fair price for such
Mortgage Loan. In the absence of any bid determined as provided below to be
fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage
Loan in accordance with Section 3.09.
The Special Servicer shall use its best efforts to solicit bids for each
REO Property in such manner as will be reasonably likely to realize a fair price
within the time period provided for by Section 3.16(a). Subject to Section
3.18(h) and Section 3.24, the Special Servicer shall accept the first (and, if
multiple bids are received by a specified bid date, the highest) cash bid
received from any Person that constitutes a fair price (determined pursuant to
Section 3.18(e) below) for such REO Property; provided that, if the Special
Servicer receives more than two bids it may also submit a bid. If the Special
Servicer reasonably believes that it will be unable to realize a fair price
(determined pursuant to Section 3.18(e) below) for any REO Property within the
time constraints imposed by Section 3.16(a), the Special Servicer shall dispose
of such REO Property upon such terms and conditions as the Special Servicer
shall deem necessary and desirable to maximize the recovery thereon under the
circumstances.
The Special Servicer shall give the Certificate Administrator, the Trustee,
the Master Servicer and the Controlling Class Representative not less than five
Business Days' prior written notice of its intention to sell any Defaulted
Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested
Person shall be obligated to submit a bid to purchase any such Mortgage Loan or
REO Property, and notwithstanding anything to the contrary herein, neither the
Trustee, in its individual capacity, nor any of its Affiliates or agents may bid
for or purchase any Defaulted Mortgage Loan or REO Property pursuant hereto.
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(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash bid is
from the Special Servicer or an Affiliate thereof, by the Trustee. In
determining whether any bid received from the Special Servicer or an Affiliate
thereof represents a fair price for any such Mortgage Loan or REO Property, the
Trustee shall be supplied with and shall be entitled to rely on the most recent
Appraisal in the related Servicing File conducted in accordance with this
Agreement within the preceding 12-month period (or, in the absence of any such
Appraisal or if there has been a material change at the subject property since
any such Appraisal, on a new Appraisal to be obtained by the Special Servicer
(the cost of which shall be covered by, and be reimbursable as, a Servicing
Advance)). The appraiser conducting any such new Appraisal shall be a Qualified
Appraiser that is (i) selected by the Special Servicer if neither the Special
Servicer nor any Affiliate thereof is bidding with respect to a Defaulted
Mortgage Loan or REO Property and (ii) selected by the Trustee if either the
Special Servicer or any Affiliate thereof is so bidding. Where any Interested
Person is among those bidding with respect to a Defaulted Mortgage Loan or REO
Property, the Special Servicer shall require that all bids be submitted to it
(or, if the Special Servicer or an Affiliate thereof is bidding, shall be
submitted by it to the Trustee) in writing and be accompanied by a refundable
deposit of cash in an amount equal to 5% of the bid amount. In determining
whether any bid from a Person other than the Special Servicer or an Affiliate
thereof constitutes a fair price for any such Mortgage Loan or REO Property, the
Special Servicer shall take into account the results of any Appraisal or updated
Appraisal that it or the Master Servicer may have obtained in accordance with
this Agreement within the preceding 12-month period, and any Qualified Appraiser
shall be instructed to take into account, as applicable, among other factors,
the period and amount of any delinquency on the affected Mortgage Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The Purchase
Price for any such Mortgage Loan or REO Property shall in all cases be deemed a
fair price. Notwithstanding the other provisions of this Section 3.18, no cash
bid from the Special Servicer or any Affiliate thereof shall constitute a fair
price for any Defaulted Mortgage Loan or REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate) have been received. In the event
the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received or if no additional bids are received, then the bid of
the Special Servicer or such Affiliate shall be accepted, provided that the
Trustee has otherwise determined, as provided above in this Section 3.18(e),
that such bid constitutes a fair price for any Defaulted Mortgage Loan or REO
Property. Any bid by the Special Servicer shall be unconditional; and, if
accepted, the Defaulted Mortgage Loan or REO Property shall be transferred to
the Special Servicer without recourse, representation or warranty other than
customary representations as to title given in connection with the sale of a
mortgage loan or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer
shall act on behalf of the Trustee in negotiating with independent third parties
and taking any other action necessary or appropriate in connection with the sale
of any Defaulted Mortgage Loan or REO Property, and the collection of all
amounts payable in connection therewith. In connection therewith, the Special
Servicer may charge prospective bidders, and may retain, fees that
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approximate the Special Servicer's actual costs in the preparation and delivery
of information pertaining to such sales or evaluating bids without obligation to
deposit such amounts into the Collection Account. Any sale of a Defaulted
Mortgage Loan or any REO Property shall be final and without recourse (except
for warranties of title and condition contemplated by Section 3.18(d)) to the
Trustee or the Trust, and if such sale is consummated in accordance with the
terms of this Agreement, neither the Special Servicer nor the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for
cash only.
(h) Notwithstanding any of the foregoing paragraphs of this Section 3.18,
but subject to Section 3.24, the Special Servicer shall not be obligated to
accept the highest cash bid if the Special Servicer determines, in accordance
with the Servicing Standard, that rejection of such bid would be in the best
interests of the Certificateholders (as a collective whole), and the Special
Servicer may accept a lower cash bid (from any Person other than itself or an
Affiliate) if it determines, in accordance with the Servicing Standard, that
acceptance of such bid would be in the best interests of the Certificateholders
(as a collective whole) (for example, if the prospective buyer making the lower
bid is more likely to perform its obligations or the terms (other than price)
offered by the prospective buyer making the lower bid are more favorable).
SECTION 3.19. Additional Obligations of Master Servicer.
(a) The Master Servicer shall deliver to the Certificate Administrator for
deposit in the Distribution Account on each Master Servicer Remittance Date,
without any right of reimbursement therefor, an amount (a "Compensating Interest
Payment") equal to the lesser of (i) the aggregate amount of Prepayment Interest
Shortfalls incurred in connection with Principal Prepayments received in respect
of the Mortgage Pool during the most recently ended Collection Period, and (ii)
the aggregate of (A) that portion of its Master Servicing Fees payable on such
Master Servicer Remittance Date that is, in the case of each and every Mortgage
Loan and REO Mortgage Loan for which such Master Servicing Fees are payable on
such Master Servicer Remittance Date, calculated at 0.01% per annum, and (B) all
Prepayment Interest Excesses received by the Master Servicer during the most
recently ended Collection Period.
(b) No more frequently than once per calendar month, the Special Servicer
may require the Master Servicer, and the Master Servicer shall be obligated, out
of the Master Servicer's own funds, to reimburse the Special Servicer for any
Servicing Advances (other than Nonrecoverable Servicing Advances) made by but
not previously reimbursed to the Special Servicer, together with interest
thereon at the Reimbursement Rate from the date made to, but not including, the
date of reimbursement. Such reimbursement and any accompanying payment of
interest shall be made within ten days of the request therefor by wire transfer
of immediately available funds to an account designated by the Special Servicer;
provided that such request shall be accompanied by any information in the
Special Servicer's possession reasonably necessary to make a nonrecoverability
determination. Upon the Master Servicer's reimbursement to the Special Servicer
of any Servicing Advance and payment to the Special Servicer of interest
thereon, all in accordance with this Section 3.19(b), the Master Servicer shall
for all purposes of this Agreement
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be deemed to have made such Servicing Advance at the same time as the Special
Servicer actually made such Servicing Advance, and accordingly, the Master
Servicer shall be entitled to reimbursement for such Servicing Advance, together
with interest thereon in accordance with Sections 3.05(a) and 3.11(g), at the
same time, in the same manner and to the same extent as the Master Servicer
would otherwise have been entitled if it had actually made such Servicing
Advance at the time the Special Servicer did.
Notwithstanding anything to the contrary contained in any other Section of
this Agreement, if the Special Servicer is required under this Agreement (but
subject to the following paragraph), to make any Servicing Advance but does not
desire to do so, the Special Servicer may, in its sole discretion, request that
the Master Servicer make such Servicing Advance. Any such request shall be made,
in writing, in a timely manner that does not adversely affect the interests of
any Certificateholder (and, in any event, to the extent reasonably practicable,
at least five Business Days in advance of the date on which the subject
Servicing Advance is to be made) and shall be accompanied by such information
and documentation regarding the subject Servicing Advance as the Master Servicer
may reasonably request; provided, however, that the Special Servicer shall not
be entitled to make such a request (other than for emergency advances) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The Master Servicer shall have the obligation
to make any such Servicing Advance (other than a Nonrecoverable Servicing
Advance) that it is so requested by the Special Servicer to make, within five
Business Days of the Master Servicer's receipt of such request and such
information and documentation regarding the subject Servicing Advance(s) as the
Master Servicer may reasonably request. The Special Servicer shall cooperate
with the Master Servicer's verification process. If the request is timely and
properly made, the Special Servicer shall be relieved of any obligations with
respect to a Servicing Advance that it so requests the Master Servicer to make
(regardless of whether or not the Master Servicer shall make such Servicing
Advance). The Master Servicer shall be entitled to reimbursement for any
Servicing Advance made by it at the direction of the Special Servicer, together
with interest thereon in accordance with Sections 3.05(a) and 3.11(g), at the
same time, in the same manner and to the same extent as the Master Servicer is
entitled with respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b), the
Master Servicer shall not be required to reimburse the Special Servicer for, or
to make at the direction of the Special Servicer, any Servicing Advance if the
Master Servicer determines in its reasonable, good faith judgment that such
Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
The Master Servicer shall notify the Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the occurrence of an Appraisal Trigger Event with
respect to any Mortgage Loan, the Special Servicer shall obtain (or, if such
Mortgage Loan has a Stated Principal Balance of $1,000,000 or less, at its
discretion, conduct) an Appraisal of the related Mortgaged Property, unless an
Appraisal (or an update of an Appraisal) thereof had previously been obtained
(or, if applicable, conducted) within the preceding 12-month period and there
has been no subsequent material change in the circumstances surrounding the
related Mortgaged Property that in the judgment of the Special Servicer would
materially affect the value of the property, and shall
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deliver a copy of such Appraisal to the Certificate Administrator, the Trustee,
the Master Servicer and the Controlling Class Representative. If such Appraisal
is obtained from a Qualified Appraiser, the cost thereof shall be covered by,
and be reimbursable as, a Servicing Advance. Promptly following the receipt of,
and based upon, such Appraisal, the Special Servicer shall determine and report
to the Trustee, the Master Servicer and the Certificate Administrator the then
applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Loan.
For so long as any Mortgage Loan or REO Mortgage Loan remains a Required
Appraisal Loan, the Special Servicer shall, within 30 days of each anniversary
of such loan's having become a Required Appraisal Loan, obtain (or, if such
Required Appraisal Loan has a Stated Principal Balance of $1,000,000 or less, at
its discretion, conduct) an update of the prior Appraisal. If such update is
obtained from a Qualified Appraiser, the cost thereof shall be covered by, and
be reimbursable as, a Servicing Advance. Promptly following the receipt of, and
based upon, such update, the Special Servicer shall redetermine and report to
the Trustee, the Master Servicer and the Certificate Administrator the then
applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Loan.
At any time that any Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, the Controlling Class Representative may, at its own
expense, obtain from a Qualified Appraiser and deliver to the Master Servicer,
the Special Servicer, the Trustee and the Certificate Administrator an Appraisal
of the related Mortgaged Property or REO Property, as the case may be. Upon the
written request of the Controlling Class Representative, the Special Servicer
shall recalculate the Appraisal Reduction Amount with respect to such Required
Appraisal Loan based on the Appraisal delivered by the Controlling Class
Representative and notify the Trustee, the Certificate Administrator, the Master
Servicer and the Controlling Class Representative of such recalculated Appraisal
Reduction Amount (if any).
(d) The Master Servicer shall not be required to pay without reimbursement
the fees charged by any Rating Agency for a (i) confirmation as to the lack of
an Adverse Rating Event with respect to any Class of Rated Certificates or (ii)
in connection with any other particular matter, unless the Master Servicer has
failed to use efforts in accordance with the Servicing Standard to collect such
fees from the Borrower.
(e) In connection with each prepayment of principal received hereunder, the
Master Servicer shall calculate any applicable Prepayment Premium, payable under
the terms of the related Mortgage Note. Upon written request of any
Certificateholder, the Master Servicer shall disclose to such Certificateholder
its calculation of any such Prepayment Premium.
(f) The Master Servicer shall not permit defeasance of any Mortgage Loan
(x) before the earliest date on which defeasance is permitted under the terms of
such Mortgage Loan, or (y) subject to the terms of such Mortgage Loan, unless
(i) the defeasance collateral consists of government securities (as defined in
Section 2(a)(16) of the Investment Company Act), (ii) the Master Servicer has
determined that the defeasance will not result in an Adverse REMIC Event in
respect of any REMIC Pool, (iii) the Master Servicer has notified the Rating
Agencies, (iv) the Master Servicer has confirmed that such defeasance will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (provided that the requirement to obtain such confirmation will be
a precondition to the defeasance only if the Master Servicer is able under the
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related Mortgage Loan documents and applicable law to prevent the defeasance if
such confirmation is not obtained and the subject Mortgage Loan represents at
least 2.0% of the then aggregate Stated Principal Balance of the Mortgage Pool),
and (v) the Master Servicer has requested and received from the related Borrower
(A) an Opinion of Counsel generally to the effect that the Trustee will have a
perfected, first priority security interest in such defeasance collateral and
(B) written confirmation from a firm of Independent accountants stating that
payments made on such defeasance collateral in accordance with the terms thereof
will be sufficient to pay the subject Mortgage Loan in full on or before its
Stated Maturity Date (or, in the case of an ARD Loan, on or before its
Anticipated Repayment Date) and to timely pay each Monthly Payment scheduled to
be due prior thereto but after the defeasance; provided that, if under the terms
of the related Mortgage Loan documents, the related Borrower delivers cash to
purchase the defeasance collateral rather than the defeasance collateral itself,
the Master Servicer shall purchase the government securities contemplated by the
related Mortgage Loan documents. Subsequent to the second anniversary of the
Startup Day for the REMIC Pool that holds the subject Mortgage Loan, to the
extent that the Master Servicer can, in accordance with the related Mortgage
Loan documents, require defeasance of any Mortgage Loan in lieu of accepting a
prepayment of principal thereunder, including a prepayment of principal
accompanied by a Prepayment Premium, the Master Servicer shall, to the extent it
is consistent with the Servicing Standard, require such defeasance, provided
that the conditions set forth in clauses (i) through (v) of the preceding
sentence have been satisfied. Any reasonable out-of-pocket expense incurred by
the Master Servicer pursuant to this Section 3.19(f) shall be paid by the
Borrower of the defeased Mortgage Loan pursuant to the related Mortgage,
Mortgage Note or other pertinent document, if so allowed by the terms of such
documents. The Master Servicer and the Special Servicer each shall, consistent
with the Servicing Standard, enforce the provisions of the Mortgage Loans it is
obligated to service hereunder relating to defeasance and prepayment
restriction; provided that, if at any time a court with jurisdiction in the
matter shall hold that the related Borrower may obtain a release of the subject
Mortgaged Property but is not obligated to deliver the full amount of the
defeasance collateral contemplated by the related Mortgage Loan documents (or
cash sufficient to purchase such defeasance collateral), then the Master
Servicer shall (i) if consistent with such court holding and the related
Mortgage Loan documents, refuse to allow the defeasance of the Mortgage Loan or
(ii) if the Master Servicer cannot so refuse and if the related Borrower has
delivered cash to purchase the defeasance collateral, the Master Servicer shall
either (A) buy such defeasance collateral or (B) prepay the Mortgage Loan, in
either case, in accordance with the Servicing Standard.
With respect to any of the Mortgaged Properties identified on Schedule B-1E
as Hampton Inn-Columbus and Comfort Suites Hotel, in the event that the Master
Servicer receives notice from the related Borrower under the related Mortgage
Loan that such Borrower intends to defease the related Mortgage Loan on or
before the second anniversary of the initial issuance of the Certificates, the
Master Servicer shall promptly notify the Trustee and SBRC of such Borrower's
intention, and the Trustee shall direct SBRC to repurchase such Mortgage Loan at
the Purchase Price in accordance with the SBRC Mortgage Loan Purchase Agreement
prior to the occurrence of such defeasance In connection with any repurchase of
such Mortgage Loan as contemplated by this Section 3.19(f), the Tax
Administrator shall effect a "qualified liquidation" of the related Loan REMIC
in accordance with the REMIC Provisions.
(g) The Master Servicer shall, as to each Mortgage Loan which is secured by
the interest of the related Borrower under a Ground Lease, promptly (and, in any
event, within 45 days)
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after the Closing Date) notify the related ground lessor of the transfer of such
Mortgage Loan to the Trust pursuant to this Agreement and inform such ground
lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer.
(h) The Master Servicer shall maintain at its Primary Servicing Office and
shall, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and Underwriter and by any
Certificateholder or Certificate Owner, or any Person identified to the Master
Servicer as a prospective transferee of a Certificate or an interest therein,
copies of the Servicing Files; provided that, if the Master Servicer reasonably
and in good faith determines that any item of information contained in such
Servicing Files is of a nature that it should be conveyed to all
Certificateholders at the same time, it shall, as soon as reasonably possible
following its receipt of any such item of information, disclose such item of
information to the Certificate Administrator as part of the reports to be
delivered to the Certificate Administrator by the Master Servicer pursuant to
Section 4.02(h), and until the Certificate Administrator has either disclosed
such information to all Certificateholders in a Distribution Date Statement or
has properly filed such information with the Commission on behalf of the Trust
under the Exchange Act, the Master Servicer shall be entitled to withhold such
item of information from any Underwriter or any Certificateholder or Certificate
Owner or prospective transferee of a Certificate or an interest therein; and
provided, further, that the Master Servicer shall not be required to make
particular items of information contained in the Servicing File for any Mortgage
Loan available to any Person if the disclosure of such particular items of
information is expressly prohibited by applicable law or the provisions of any
related Mortgage Loan documents or if such documentation is subject to claim of
privilege under applicable law that can be asserted by the Certificateholders;
and provided, further, that, except in the case of the Rating Agencies, the
Master Servicer shall be entitled to recover from any Person reviewing the
Servicing Files pursuant to this Section 3.19(a) its reasonable "out-of-pocket"
expenses incurred in connection with making the Servicing Files available to
such Person. Except as set forth in the provisos to the preceding sentence,
copies of all or any portion of any Servicing File are to be made available by
the Master Servicer upon request; however, the Master Servicer shall be
permitted to require payment of a sum sufficient to cover the reasonable
out-of-pocket costs and expenses of providing such service. The Special Servicer
shall, as to each Specially Serviced Mortgage Loan and REO Property, promptly
deliver to the Master Servicer a copy of each document or instrument added to
the related Servicing File, and the Master Servicer shall in no way be in
default under this Section 3.19(h) solely by reason of the Special Servicer's
failure to do so.
(i) In connection with providing access to or copies of the items described
in the preceding paragraph, the Master Servicer may require, unless the
Depositor directs otherwise, (a) in the case of Certificate Owners, a written
confirmation executed by the requesting Person, in form reasonably satisfactory
to the Master Servicer, generally to the effect that such Person is a beneficial
holder of Certificates and will otherwise keep such information confidential,
and (b) in the case of a prospective purchaser, written confirmation executed by
the requesting Person, in form reasonably satisfactory to the Master Servicer,
generally to the effect that such Person is a prospective purchaser of a
Certificate or an interest therein, is requesting the information for use in
evaluating a possible investment in Certificates and will otherwise keep such
information confidential. All Certificateholders, by the acceptance of their
Certificates, shall be deemed to have agreed to keep such information
confidential, except to the extent that the Depositor grants written permission
to
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the contrary. The Master Servicer shall not be liable for the dissemination of
information in accordance with this Section 3.19(h).
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer (as to Specially Serviced Mortgage Loans) and, to
the limited extent permitted below, the Master Servicer (as to Performing
Mortgage Loans) each may (consistent with the Servicing Standard) agree to any
modification, waiver or amendment of any term of, extend the maturity of, defer
or forgive interest (including Default Interest and Post-ARD Additional
Interest) on and principal of, defer or forgive late payment charges and
Prepayment Premiums on, permit the release, addition or substitution of
collateral securing, and/or permit the release, addition or substitution of the
Borrower on or any guarantor of, any Mortgage Loan it is required to service and
administer hereunder, subject, however, to Sections 3.08 and 3.24 and, further
to each of the following limitations, conditions and restrictions:
(i) other than as provided in Sections 3.02, 3.08 and 3.20(g), the
Master Servicer shall not agree to any modification, waiver or amendment of
any term of, or take any of the other acts referenced in this Section
3.20(a) with respect to, any Mortgage Loan without the consent of the
Special Servicer (it being understood and agreed that (A) the Master
Servicer shall promptly provide the Special Servicer with all information
that the Special Servicer may reasonably request in order to withhold or
grant any such consent, (B) the Special Servicer (for no additional
compensation, including Special Servicing Fees, Workout Fees and
Liquidation Fees) shall decide whether to withhold or grant such consent in
accordance with the Servicing Standard and (C) if any such consent has not
been expressly granted within ten Business Days of the Special Servicer's
receipt from the Master Servicer of all information reasonably requested
thereby in order to make an informed decision, such consent shall be deemed
to have been denied);
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(f), the
Special Servicer shall not, in the case of any Specially Serviced Mortgage
Loan, agree to (or, in the case of any Performing Mortgage Loan, consent to
the Master Servicer's agreeing to) any modification, waiver or amendment of
any term of, and the Special Servicer shall not, in the case of any
Specially Serviced Mortgage Loan, take (or, in the case of any Performing
Mortgage Loan, consent to the Master Servicer's taking) any of the other
acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan
that would affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder or, in the Special Servicer's
reasonable, good faith judgment, would materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon, unless a material default on such Mortgage Loan has occurred
or, in the Special Servicer's reasonable, good faith judgment, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable, and
such modification, waiver, amendment or other action is reasonably likely
to produce a greater recovery to Certificateholders (as a collective whole)
on a present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders to be done at
the related Mortgage Rate), than would liquidation;
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(iii) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, extend (or, in the case of any Performing Mortgage
Loan, agree to the Master Servicer's extending) the date on which any
Balloon Payment is scheduled to be due on any Mortgage Loan to a date
beyond the earliest of (A) two years prior to the Rated Final Distribution
Date and (B) if such Mortgage Loan is secured by a Mortgage solely or
primarily on the related Borrower's leasehold interest in the related
Mortgaged Property, 20 years (or, to the extent consistent with the
Servicing Standard, giving due consideration to the remaining term of the
Ground Lease, 10 years) prior to the end of the then current term of the
related Ground Lease (plus any unilateral options to extend); and,
furthermore, the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, grant (or, in the case of any Performing Mortgage
Loan consent to the Master Servicer's granting) any such extension unless
the related Borrower agrees to deliver to the Master Servicer, the Special
Servicer, the Trustee and the Controlling Class Representative quarterly
and annual operating statements and the related rent rolls with respect to
the related Mortgaged Property (the Special Servicer (or, if applicable,
the Master Servicer at the direction of the Special Servicer) to request
that such statements be audited, provided that the Special Servicer may
waive such condition relating to such statements being audited, in its sole
discretion);
(iv) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take any
of the other acts referenced in this Section 3.20(a) with respect to, any
Mortgage Loan that would result in an Adverse REMIC Event with respect to
any REMIC Pool or an Adverse Grantor Trust Event with respect to either
Grantor Trust Pool (it being acknowledged and agreed that neither the
Master Servicer nor the Special Servicer shall be liable for decisions made
under this subsection which were made in good faith; and, unless it would
be contrary to the Servicing Standard to do so, each of the Master Servicer
and the Special Servicer may rely on Opinions of Counsel in making such
decisions);
(v) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, permit (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's permitting) any Borrower to add or
substitute any real estate collateral for its Mortgage Loan unless the
Special Servicer shall have first (A) determined in its reasonable, good
faith judgment, based upon a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems necessary
and prudent) conducted by an Independent Person who regularly conducts
Phase I Environmental Assessments, at the expense of the Borrower, that
such additional or substitute collateral is in compliance with applicable
environmental laws and regulations and that there are no circumstances or
conditions present with respect to such new collateral relating to the use,
management or disposal of any Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation would be required
under any then applicable environmental laws or regulations and (B)
received written confirmation from each Rating Agency that such addition or
substitution of such real estate collateral will not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and
(vi) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, release (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's releasing), including in connection
with a substitution contemplated by clause (v)
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above, any collateral securing an outstanding Mortgage Loan, except as
provided in Section 3.09(d) or Section 3.20(g), or except where a Mortgage
Loan (or, in the case of a Cross-Collateralized Group, where such entire
Cross-Collateralized Group) is satisfied, or except in the case of a
release where (A) either (1) the use of the collateral to be released will
not, in the Special Servicer's good faith and reasonable judgment,
materially and adversely affect the Net Operating Income being generated by
or the use of the related Mortgaged Property, or (2) there is a
corresponding principal pay down of such Mortgage Loan in an amount at
least equal to the appraised value of the collateral to be released (or
substitute collateral with an appraised value at least equal to that of the
collateral to be released, is delivered), (B) the remaining Mortgaged
Property (together with any substitute collateral) is, in the Special
Servicer's good faith and reasonable judgment, adequate security for the
remaining Mortgage Loan and (C) such release would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by each Rating
Agency);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (vi) above shall not apply to any act or event (including,
without limitation, a release, substitution or addition of collateral) in
respect of any Mortgage Loan that either occurs automatically by its terms, or
results from the exercise of a unilateral option by the related Borrower within
the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event
under the terms of such Mortgage Loan in effect on the Closing Date, and (y)
notwithstanding clauses (i) through (vi) above, neither the Master Servicer nor
the Special Servicer shall be required to oppose the confirmation of a plan in
any bankruptcy or similar proceeding involving a Borrower, if in its reasonable,
good faith judgment, such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar.
(b) Neither the Master Servicer nor the Special Servicer shall have any
liability to the Trust, the Certificateholders or any other Person if the
Special Servicer's analysis and determination that the modification, waiver,
amendment or other action contemplated by Section 3.20(a) (with respect to
Specially Serviced Mortgage Loans) is reasonably likely to produce a greater
recovery to Certificateholders (as collective whole) on a present value basis
than would liquidation, should prove to be wrong or incorrect, so long as the
analysis and determination were made on a reasonable basis in good faith by the
Special Servicer and the Special Servicer has complied with the Servicing
Standard in ascertaining the pertinent facts. Each such determination shall be
evidenced by an Officer's Certificate to such effect to be delivered by the
Special Servicer to the Certificate Administrator. The Master Servicer shall not
be liable to the Certificateholders, the Trust, the Trustee, the Certificate
Administrator or the other parties hereto for the Special Servicer's consents or
failure to consent or for delays caused thereby, provided that the Master
Servicer has acted without willful misfeasance, bad faith or negligence. The
Special Servicer accepts responsibility for any consents to be given by it
pursuant to this Agreement.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a),
shall not, for purposes of calculating monthly distributions and reporting
information to Certificateholders, be added to the unpaid principal balance or
Stated Principal Balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit or that such interest may actually be
capitalized; provided, however, that this sentence shall not limit the
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rights of the Master Servicer or the Special Servicer on behalf of the Trust to
enforce any obligations of the related Borrower under such Mortgage Loan.
(d) Each of the Master Servicer and the Special Servicer may, as a
condition to its granting any request by a Borrower for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within the Master Servicer's or the Special Servicer's, as the case may be,
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and is permitted by the terms of this Agreement, require
that such Borrower pay to it a reasonable or customary fee (which shall in no
event exceed 1.0% of the unpaid principal balance of the related Mortgage Loan)
for the additional services performed in connection with such request, together
with any related processing fee, application fee and costs and expenses incurred
by it. All such fees collected by the Master Servicer and/or the Special
Servicer shall be allocable between such parties, as Additional Master Servicing
Compensation and Additional Special Servicing Compensation, respectively, as
provided in Section 3.11.
(e) All modifications, amendments, material waivers and other material
actions entered into or taken in respect of the Mortgage Loans pursuant to this
Section 3.20 shall be in writing. Each of the Special Servicer and the Master
Servicer shall notify the other such party, each Rating Agency, the Trustee and
the Controlling Class Representative, in writing, of any modification, waiver,
amendment or other action entered into or taken thereby in respect of any
Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File (with a copy to the other such party), an original counterpart of
the agreement relating to such modification, waiver, amendment or other action,
promptly (and in any event within ten Business Days) following the execution
thereof. In addition, following the execution of any modification, waiver or
amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above,
the Special Servicer shall deliver to the Master Servicer, the Trustee, the
Certificate Administrator and the Rating Agencies an Officer's Certificate
certifying that all of the requirements of Section 3.20(a) have been met and
setting forth in reasonable detail the basis of the determination made by it
pursuant to Section 3.20(a)(ii); provided that, if such modification, waiver or
amendment involves an extension of the maturity of any Mortgage Loan, such
Officer's Certificate shall be delivered to the Master Servicer, the Trustee and
the Rating Agencies before the modification, waiver or amendment is agreed to.
(f) With respect to any ARD Loan after its Anticipated Repayment Date, the
Master Servicer shall be permitted, in its discretion, to waive (such waiver to
be in writing addressed to the related Borrower, with a copy to the Trustee) all
or any portion of the accrued Post-ARD Additional Interest in respect of such
ARD Loan if, prior to the related maturity date, the related Borrower has
requested the right to prepay such ARD Loan in full together with all payments
required by the related Mortgage Loan documents in connection with such
prepayment except for such accrued Post-ARD Additional Interest, provided that
(i) the Master Servicer has obtained the consent of the Special Servicer (such
consent to be given or withheld in accordance with the Servicing Standard) and
(ii) the Master Servicer has determined, in its reasonable, good faith judgment,
that the waiver of the Trust's right to receive such accrued Post-ARD Additional
Interest is in accordance with the Servicing Standard.
(g) The Master Servicer shall not be required to seek the consent of the
Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the
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Rating Agencies in order to approve the following modifications, waivers or
amendments of the Performing Mortgage Loans: (i) waivers of minor in the Master
Servicer's reasonable judgment covenant defaults (other than financial
covenants), including late financial statements; (ii) releases of non-material
in the Master Servicer's reasonable judgment parcels of a Mortgaged Property
(provided that releases as to which the related Mortgage Loan documents
expressly require the mortgagee thereunder to make such releases upon the
satisfaction of certain conditions shall be made as required by the Mortgage
Loan documents); and (iii) grants of easements that do not materially affect in
the Master Servicer's reasonable judgment the use or value of a Mortgaged
Property or the Borrower's ability to make any payments with respect to the
related Mortgage Loan; provided that any such modification, waiver or amendment
(w) would not in any way affect a payment term of the Certificates, (x) would
not constitute a "significant modification" of such Mortgage Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust
Event with respect to either Grantor Trust Pool, and (y) would be consistent
with the Servicing Standard.
(h) Subject to the related Mortgage Loan documents, the Master Servicer
shall not terminate or consent to the termination any property manager with
respect to any Mortgaged Property without the consent of the Special Servicer
(it being understood and agreed that (A) the Master Servicer shall promptly
provide the Special Servicer with all information that the Special Servicer may
reasonably request and which information is in the possession of the Master
Servicer, in order to withhold or grant any such consent, (B) the Special
Servicer (for no additional compensation) shall decide whether to withhold or
grant such consent in accordance with the Servicing Standard and (C) if any such
consent has not been expressly denied within ten Business Days of the Special
Servicer's receipt from the Master Servicer of all information reasonably
requested thereby in order to make an informed decision, such consent shall be
deemed to have been granted).
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, if the Master Servicer is not also the Special
Servicer, the Master Servicer shall immediately give notice thereof, and shall
deliver the related Servicing File, to the Special Servicer and shall use its
best efforts to provide the Special Servicer with all information, documents (or
copies thereof) and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. Without regard to
whether the Master Servicer and the Special Servicer are the same Person, the
Special Servicer shall immediately give notice of a Servicing Transfer Event to
the Controlling Class Representative. The Master Servicer shall use its best
efforts to comply with the preceding sentence within five Business Days of the
occurrence of each related Servicing Transfer Event. The Special Servicer may,
as to any delinquent Mortgage Loan, prior to the occurrence of a Servicing
Transfer Event with respect thereto, request and obtain the foregoing documents
and information in order to perform its duties described in Section 3.02.
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Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File within five Business Days, to the Master
Servicer; and, upon giving such notice and returning such Servicing File to the
Master Servicer, the Special Servicer's obligation to service such Mortgage
Loan, and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Mortgage Loan, shall terminate, and the obligations of the
Master Servicer to service and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with the
transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master Servicer
and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee (or the applicable Custodian appointed by
the Trustee) originals of documents contemplated by the definition of "Mortgage
File" and generated while such Mortgage Loan is a Specially Serviced Mortgage
Loan, for inclusion in the related Mortgage File (with a copy of each such
original to the Master Servicer), and copies of any additional related Mortgage
Loan information, including correspondence with the related Borrower generated
while such Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) The Master Servicer and Special Servicer shall each furnish to the
other, upon reasonable request, such reports, documents, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Mortgage Loans and any REO Properties and as shall
be reasonably required by the requesting party in order to perform its duties
hereunder.
(d) In connection with the performance of its obligations hereunder, each
of the Master Servicer and the Special Servicer shall be entitled to rely upon
written information provided to it by the other.
(e) Notwithstanding anything in this Agreement to the contrary, in the
event that the Master Servicer and the Special Servicer are the same Person, all
notices, certificates, information, consents and documents required to be given
or delivered by the Master Servicer to the Special Servicer or vice versa shall
be deemed to be given or delivered, as the case may be, without the necessity of
any action on such Person's part.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and, subject to Section 3.22(f), the Special
Servicer may each enter into Sub-Servicing Agreements to provide for the
performance by third parties of any or
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all of its obligations hereunder, provided that, in each case, the Sub-Servicing
Agreement: (i) is not inconsistent with this Agreement and does not subject the
Trust to any liability; (ii) expressly or effectively provides that if the
Master Servicer or Special Servicer, as the case may be, shall for any reason no
longer act in such capacity hereunder (including by reason of an Event of
Default), any successor to the Master Servicer or the Special Servicer, as the
case may be, hereunder (including the Trustee if the Trustee has become such
successor pursuant to Section 7.02) may thereupon either assume all of the
rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer or Special Servicer, as the case may be,
under such agreement or, subject to the provisions of Section 3.22(d), terminate
such rights and obligations, in either case without payment of any fee except as
set forth in Section 3.22(d); (iii) prohibits the Sub-Servicer from modifying
any Mortgage Loan or commencing any foreclosure or similar proceedings with
respect to any Mortgaged Property without the consent of the Master Servicer or
the Special Servicer; (iv) in the case of a Sub-Servicing Agreement entered into
by the Master Servicer, expressly or effectively provides (unless the Special
Servicer agrees otherwise) that such agreement shall be suspended or terminated
with respect to any Mortgage Loan serviced thereunder at the time such Mortgage
Loan becomes a Specially Serviced Mortgage Loan, and also expressly or
effectively provides (unless the Special Servicer agrees otherwise) that the
Sub-Servicer shall not receive or accrue an entitlement to any sub-servicing
compensation in respect of a Specially Serviced Mortgage Loan or an REO Loan;
and (v) in the case of a Sub-Servicing Agreement entered into by the Special
Servicer, relates only to Specially Serviced Mortgage Loans or REO Properties
and expressly or effectively provides that such agreement shall terminate with
respect to any such Mortgage Loan that becomes a Corrected Mortgage Loan.
References in this Agreement to actions taken or to be taken by the Master
Servicer or the Special Servicer, as the case may be, include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer, as the case may be, hereunder to make Advances shall be deemed
to have been advanced by the Master Servicer or the Special Servicer, as the
case may be, out of its own funds. Accordingly, such Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer or the Special Servicer, as the
case may be; and, for so long as they are outstanding, such Advances shall
accrue interest in accordance with Section 3.11(g) and/or Section 4.03(d), such
interest to be allocable between the Master Servicer or the Special Servicer, as
the case may be, and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when a Sub-Servicer retained by it receives such
payment. The Master Servicer and the Special Servicer each shall notify the
other such party, the Trustee, the Certificate Administrator and the Depositor
in writing promptly of the appointment by it of any Sub-Servicer, and shall
deliver to the Trustee and the Certificate Administrator copies of all
Sub-Servicing Agreements, and any amendments thereto and modifications thereof,
entered into by it promptly upon its execution and delivery of such documents.
(b) Each Sub-Servicer shall be authorized to transact business in the state
or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the benefit of the
Trustee and the Certificateholders, shall (at no expense to the other such party
or to the Trustee, the
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Certificateholders or the Trust) monitor the performance and enforce the
obligations of their respective Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as applicable, in its good faith and reasonable judgment,
would require were it the owner of the Mortgage Loans. Subject to the terms of
the related Sub-Servicing Agreement, the Master Servicer and the Special
Servicer shall each have the right to remove a Sub-Servicer retained by it at
any time it considers such removal to be in the best interests of
Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to serve as such
under this Agreement for any reason (including by reason of an Event of
Default), then the Trustee or other successor Master Servicer or Special
Servicer, as the case may be, shall succeed to the rights and assume the
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement unless the Trustee or other successor Master Servicer or
Special Servicer elects to terminate any such Sub-Servicing Agreement in
accordance with its terms and Section 3.22(a)(ii) hereof; provided that a
Designated Sub-Servicer Agreement may not be so terminated except for cause. In
any event, if a Sub-Servicing Agreement is to be assumed by the Trustee or other
successor Master Servicer or Special Servicer, then the Master Servicer or the
Special Servicer, as applicable, at its expense shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
such Sub-Servicing Agreement and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected and held on behalf of it
thereunder, and otherwise use its best efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer and
the Special Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible. No appointment of a Sub-Servicer shall result in any additional
expense to the Trustee, the Certificateholders or the Trust other than those
contemplated herein.
(f) The Special Servicer shall not enter into any Sub-Servicing Agreement
unless either: (i) the Rating Agencies have confirmed in writing that entering
into such agreement will not result in an Adverse Rating Event; or (ii) such
agreement relates to one or more Mortgage Loans (including any such Mortgage
Loan(s) previously sub-serviced in accordance with this Section 3.22) that
together represent less than 25% of the aggregate outstanding principal balance
of all Specially Serviced Mortgage Loans.
(g) Each successor Master Servicer hereunder shall, except as provided in
Section 7.01(c), agree to assume the responsibilities and obligations of the
Master Servicer under the applicable Designated Sub-Servicer Agreement.
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SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Certificate
Administrator of written requests for the selection of a Controlling Class
Representative from the Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class, (ii) the resignation or removal of
the Person acting as Controlling Class Representative or (iii) a determination
by the Certificate Administrator that the Controlling Class has changed, the
Certificate Administrator shall promptly notify the Depositor and the Holders
(and, in the case of Book-Entry Certificates, to the extent actually known to a
Responsible Officer of the Certificate Administrator or identified thereto by
the Depository or the Depository Participants, the Certificate Owners) of the
Controlling Class that they may select a Controlling Class Representative. Such
notice shall set forth the process established by the Certificate Administrator
for selecting a Controlling Class Representative, which process may include the
designation of the Controlling Class Representative by the Majority Controlling
Class Certificateholder by a writing delivered to the Certificate Administrator.
No appointment of any Person as a Controlling Class Representative shall be
effective until such Person provides the Certificate Administrator with written
confirmation of its acceptance of such appointment, an address and telecopy
number for the delivery of notices and other correspondence and a list of
officers or employees of such Person with whom the parties to this Agreement may
deal (including their names, titles, work addresses and telecopy numbers).
(b) Within ten Business Days (or as soon thereafter as practicable if the
Controlling Class consists of Book-Entry Certificates) of any change in the
identity of the Controlling Class Representative of which a Responsible Officer
of the Certificate Administrator has actual knowledge the Certificate
Administrator shall deliver to the Holders or Certificate Owners, as applicable,
of the Controlling Class, the Master Servicer and the Special Servicer the
identity of the new Controlling Class Representative and a list of each Holder
(or, in the case of Book-Entry Certificates, to the extent actually known to a
Responsible Officer of the Trustee or identified thereto by the Depository or
the Depository Participants, each Certificate Owner) of the Controlling Class,
including, in each case, names and addresses. With respect to such information,
the Certificate Administrator shall be entitled to conclusively rely on
information provided to it by the Holders (or, in the case of Book-Entry
Certificates, subject to Section 5.06, by the Depository or the Certificate
Owners) of such Certificates, and the Master Servicer and the Special Servicer
shall be entitled to rely on such information provided by the Certificate
Administrator with respect to any obligation or right hereunder that the Master
Servicer and the Special Servicer may have to deliver information or otherwise
communicate with the Controlling Class Representative or any of the Holders (or,
if applicable, Certificate Owners) of the Controlling Class. In addition to the
foregoing, within two Business Days of the selection, resignation or removal of
a Controlling Class Representative, the Certificate Administrator shall notify
the parties to this Agreement of such event.
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(c) A Controlling Class Representative may at any time resign as such by
giving written notice to the Certificate Administrator and to each Holder (or,
in the case of Book-Entry Certificates, Certificate Owner) of the Controlling
Class. The Holders (or, in the case of Book-Entry Certificates, the Certificate
Owners) of Certificates representing more than 50% of the Class Principal
Balance of the Controlling Class shall be entitled to remove any existing
Controlling Class Representative by giving written notice to the Certificate
Administrator and to such existing Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected pursuant to
this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Certificate Administrator
and each other party to this Agreement and each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class, in
writing, of the resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative shall be
borne by the Holders (or, if applicable, the Certificate Owners) of Certificates
of the Controlling Class, pro rata according to their respective Percentage
Interests in such Class, and not by the Trust. Notwithstanding the foregoing, if
a claim is made against the Controlling Class Representative by a Borrower with
respect to this Agreement or any particular Mortgage Loan, the Controlling Class
Representative shall immediately notify the Certificate Administrator , the
Master Servicer and the Special Servicer, whereupon (if the Special Servicer,
the Master Servicer or the Trust are also named parties to the same action and,
in the sole judgment of the Special Servicer, (i) the Controlling Class
Representative had acted in good faith, without negligence or willful
misfeasance, with regard to the particular matter at issue, and (ii) there is no
potential for the Special Servicer, the Master Servicer or the Trust to be an
adverse party in such action as regards the Controlling Class Representative)
the Special Servicer on behalf of the Trust shall, subject to Section 6.03,
assume the defense of any such claim against the Controlling Class
Representative. This provision shall survive the termination of this Agreement
and the termination or resignation of the Controlling Class Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) The Controlling Class Representative will be entitled to advise the
Special Servicer with respect to the following actions of the Special Servicer,
and notwithstanding anything in any other Section of this Agreement to the
contrary, but in all cases subject to Section 3.24(b), the Special Servicer will
not be permitted to take any of the following actions unless and until it has
notified the Controlling Class Representative in writing and the Controlling
Class Representative has not objected in writing within ten Business Days of
having been notified thereof in writing and having been provided with all
reasonably requested information with respect thereto (provided that if such
written objection has not been received by the Special Servicer within such ten
Business Day period, then the Controlling Class Representative's approval will
be deemed to have been given):
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(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification, amendment or waiver of a monetary term
(including the timing of payments) or any material non-monetary term of a
Specially Serviced Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the Purchase Price;
(iv) any acceptance of a discounted payoff with respect to a Specially
Serviced Mortgage Loan;
(v) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(vi) any release of collateral for a Specially Serviced Mortgage Loan
(other than in accordance with the terms of, or upon satisfaction of, such
Mortgage Loan);
(vii) any acceptance of substitute or additional collateral for a
Specially Serviced Mortgage Loan (other than in accordance with the terms
of such Mortgage Loan);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
(or approval of a waiver of a "due-on-sale" clause requested through the
Master Servicer) with respect to any Mortgage Loan; and
(ix) any acceptance of an assumption agreement releasing a borrower
from liability under a Mortgage Loan;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Controlling Class Representative's response.
In addition, subject to Section 3.24(b), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, such actions as the Controlling Class Representative may deem advisable
or as to which provision is otherwise made herein. Upon reasonable request, the
Special Servicer shall provide the Controlling Class Representative with any
information in the Special Servicer's possession with respect to such matters,
including, without limitation, its reasons for determining to take a proposed
action; provided that such information shall also be provided, in a written
format, to the Certificate Administrator, who shall make it available for review
pursuant to Section 8.12(b) unless making it so available would cause material
harm to the interests of the Trust.
(b) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from any Controlling Class Representative
prior to acting, and provisions of this Agreement requiring
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such shall be of no effect, during the period prior to the initial selection of
a Controlling Class Representative and, if any Controlling Class Representative
resigns or is removed, during the period following such resignation or removal
until a replacement is selected and (ii) no advice, direction or objection from
or by the Controlling Class Representative, as contemplated by Section 3.24(a),
may (and the Special Servicer shall ignore and act without regard to any such
advice, direction or objection that the Special Servicer has determined, in its
reasonable, good faith judgment, would) (A) require or cause the Special
Servicer to violate applicable law, the terms of any Mortgage Loan, any other
Section of this Agreement or any provision of the REMIC Provisions, including
the Special Servicer's obligation to act in accordance with the Servicing
Standard, (B) result in an Adverse REMIC Event with respect to any REMIC Pool or
an Adverse Grantor Trust Event with respect to either Grantor Trust Pool, (C)
expose the Trust, the Depositor, the Underwriters, the Master Servicer, the
Special Servicer, any Fiscal Agent, the Tax Administrator, the Certificate
Administrator or the Trustee, or any of their respective Affiliates, officers,
directors, members, managers, employees or agents, to any material claim, suit
or liability, or (D) materially expand the scope of the Special Servicer's
responsibilities under this Agreement.
Furthermore, the Special Servicer shall not be obligated to obtain the
approval of the Controlling Class Representative for any actions to be taken by
the Special Servicer with respect to any particular Mortgage Loan if (i) the
Special Servicer has, in accordance with Section 3.24(a), notified the
Controlling Class Representative in writing of the various actions that the
Special Servicer proposes to take with respect to the work-out or liquidation of
such Mortgage Loan and (ii) for 60 days following the first such notice, the
Controlling Class Representative has objected to all of those proposed actions
and has failed to suggest or agree to any alternative actions that the Special
Servicer considers to be consistent with the Servicing Standard.
(c) The Controlling Class Representative will have no liability to the
Trust or the Certificateholders for any action taken, or for refraining from the
taking of any action, in good faith pursuant to this Agreement, or for errors in
judgment. Each Certificateholder acknowledges and agrees, by its acceptance of
its Certificates or an interest therein, that the Controlling Class
Representative may have special relationships and interests that conflict with
those of Holders of one or more Classes of Certificates, that the Controlling
Class Representative may act solely in the interests of the Holders of the
Controlling Class, that the Controlling Class Representative does not have any
duties to the Holders and Certificate Owners of any Class of Certificates other
than the Controlling Class, that the Controlling Class Representative may take
actions that favor interests of the Holders of the Controlling Class over the
interests of the Holders of one or more other Classes of Certificates, and that
the Controlling Class Representative shall have no liability whatsoever for
having so acted, and no Certificateholder may take any action whatsoever against
the Controlling Class Representative, any Holder, of the Controlling Class or
any director, officer, employee, agent or principal thereof for having so acted.
SECTION 3.25. Credit Tenant Leases.
Within 30 days after the Closing Date, the Master Servicer shall notify the
insurer under any Lease Enhancement Policy for any CTL Loan that (i) both the
Master Servicer and the Special Servicer shall be sent notices under each such
policy and (ii) the Trustee for the benefit of the Certificateholders shall be
the loss payee under each such policy. In the event that the Master Servicer or
the Special Servicer (who shall promptly notify the Master Servicer) has actual
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knowledge of any event (an "Insured CTL Event") giving rise to a claim under any
Lease Enhancement Policy, the Master Servicer shall prepare and file a "proof of
loss" form with the appropriate insurer within five Business Days after
receiving notice of any Insured CTL Event under any such policy and shall
diligently process any claims under such policy in accordance with the Servicing
Standard. With respect to each Lease Enhancement Policy, the Master Servicer
shall review and familiarize itself with the terms and conditions relating to
enforcement of claims and shall monitor the dates by which any claim must be
made or any other action must be taken under such policy to realize the full
value thereof for the benefit of the Certificateholders; and the Master Servicer
shall promptly make such claim or take such other action, consistent with the
Servicing Standard, and any out-of-pocket expenses and legal fees in connection
therewith shall be covered by, and be reimbursable as, a Servicing Advance.
The Master Servicer shall abide by the terms and conditions precedent to
payment of claims under the Lease Enhancement Policies and take all such action
as may be required to comply with the terms and provisions of such policies in
order to maintain such policies in full force and effect and to make claims
thereunder.
The Master Servicer shall make a Servicing Advance with respect to a
Mortgaged Property subject to a Credit Tenant Lease in an amount equal to all
such funds as are necessary for the costs of maintenance or repair of a
Mortgaged Property or other obligation of the related Borrower to the extent the
failure to complete such maintenance or repair or other obligation may give rise
to a Maintenance Right or Additional Right of the related Credit Tenant and
provided that the particular Servicing Advance would not, if made, constitute a
Nonrecoverable Servicing Advance. All such Servicing Advances shall be
reimbursable from collections from the related Borrower, the related Reserve
Funds or excess cash flow after scheduled debt service on the related Mortgage
Loan or as may be provided in the related Credit Tenant Lease or general
collections on the Mortgage Pool if so permitted by Section 3.05(a)(vii).
Notwithstanding the foregoing, the Master Servicer shall not make such Servicing
Advance or take such action unless the Master Servicer shall determine that such
Advance or action would not result in liability to the Master Servicer or the
Trust under any applicable law or the Mortgage Loan documents. The Master
Servicer may consult with legal counsel in making such determination, and the
reasonable cost of such consultation and any other reasonable out-of-pocket
costs and expenses related thereto shall be covered by, and be reimbursable as,
a Servicing Advance by the Master Servicer. The Master Servicer shall notify the
Special Servicer of any CTL Loan in respect of which it has made Servicing
Advances pursuant to this Section 3.25. No costs incurred by the Master Servicer
in effecting the foregoing payments shall be added to the unpaid principal
balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit; provided that
the foregoing shall in no way limit the Master Servicer's ability to charge and
collect from the Borrower or the related Credit Tenant such costs, together with
interest thereon.
In the event that the Master Servicer receives notice of any termination of
a Lease Enhancement Policy, the Master Servicer shall, within three Business
Days after receipt of such notice, notify the Rating Agencies and the Trustee of
such termination in writing. Upon receipt of such notice, the Master Servicer
shall address such termination in accordance with the Servicing Standard. Any
reasonable out-of-pocket costs and expenses, including legal fees, incurred in
connection with a resolution of such termination of a Lease Enhancement Policy
shall be paid by the Master Servicer and shall be reimbursable to it as a
Servicing Advance.
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Three days prior to each Distribution Date, the Master Servicer shall
deliver to the Certificate Administrator and the Rating Agencies a report
stating, with respect to each CTL Loan as of the related Due Date prior to such
Distribution Date, (A) all publicly available ratings of any
nationally-recognized statistical rating organization for the related Rated
Party as of (i) the Closing Date, (ii) the Due Date in the previous month, and
(iii) the Due Date in the current month, and (B) whether the related Rated Party
had been placed on a credit watch.
The parties hereto understand and acknowledge that, with respect to the CTL
Loan identified on the Mortgage Loan Schedule as being secured by
CVS-Murfreesboro the rental payment required to be made under the related Credit
Tenant Lease, during any calendar month is intended to be applied to pay the
Monthly Payment under such CTL Loan in the following calendar month.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Certificate Administrator shall apply
the Standard Available Distribution Amount for such Distribution Date for the
following purposes and in the following order of priority, in each case to the
extent of the remaining portion of such Standard Available Distribution Amount:
first, to make distributions of interest to the Holders of the Class
A-1 Certificates, the Holders of the Class A-2 Certificates and the Holders
of the Class X Certificates, up to, and pro rata as among such Classes of
Certificateholders based on, their respective Current Interest Distribution
Amounts for such Distribution Date;
second, to make distributions of interest to the Holders of the Class
A-1 Certificates, the Holders of the Class A-2 Certificates and the Holders
of the Class X Certificates, up to, and pro rata as among such Classes of
Certificateholders based on, their respective Carryforward Interest
Distribution Amounts for such Distribution Date;
third, to make distributions of principal to the Holders of the Class
A-1 Certificates and/or the Holders of the Class A-2 Certificates as
follows--
(i) prior to the occurrence of the Final Distribution Date or any
Senior Principal Distribution Cross-Over Date, sequentially to the Holders
of the Class A-1 Certificates, up to their Principal Distribution Amount
for such Distribution Date, and then to the Holders of the Class A-2
Certificates, up to their Principal Distribution Amount for such
Distribution Date, and
(ii) on and after the occurrence of any Senior Principal Distribution
Cross-Over Date, and in any event on the Final Distribution Date, to the
Holders of the Class A-1 Certificates and the Holders of the Class A-2
Certificates, up to, and pro rata as between such Classes of
Certificateholders based on, their respective Principal Distribution
Amounts for such Distribution Date; and
fourth, to reimburse the Holders of the Class A-1 Certificates and the
Holders of the Class A-2 Certificates for any Unfunded Principal Balance
Reductions previously incurred thereby, up to, and pro rata as between such
Classes of Certificateholders based on, their respective Loss Reimbursement
Amounts for such Distribution Date.
(b) On each Distribution Date, following the distributions on the Senior
Certificates to be made on such date pursuant to Section 4.01(a), the
Certificate Administrator shall apply any remaining portion of the Standard
Available Distribution Amount for such Distribution Date to make distributions
to the Holders of the respective Classes of the Subordinate Principal Balance
Certificates, in the following order and, in the case of each such Class of
Subordinate Principal Balance Certificates, up to the lesser of (i) the total of
the Current Interest Distribution
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Amount, the Carryforward Interest Distribution Amount, the Principal
Distribution Amount and the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date and (ii) the remaining portion of the
Standard Available Distribution Amount for such Distribution Date (after taking
into account all prior distributions made on such Distribution Date pursuant to
Section 4.01(a) and this Section 4.01(b)): first, to the Holders of the Class B
Certificates; second, to the Holders of the Class C Certificates; third, to the
Holders of the Class D Certificates; fourth, to the Holders of the Class E
Certificates; fifth, to the Holders of the Class F Certificates; sixth, to the
Holders of the Class G Certificates; seventh, to the Holders of the Class H
Certificates; eighth, to the Holders of the Class J Certificates; ninth, to the
Holders of the Class K Certificates; tenth, to the Holders of the Class L
Certificates; eleventh, to the Holders of the Class M Certificates; twelfth, to
the Holders of the Class N Certificates; and, thirteenth, to the Holders of the
Class P Certificates. Amounts distributable to the Holders of any Class of
Subordinate Principal Balance Certificates on any Distribution Date pursuant to
this Section 4.01(b) shall be applied:
first, to make distributions of interest to the Holders of such Class
of Certificates, up to their Current Interest Distribution Amount for such
Distribution Date;
second, to make distributions of interest to the Holders of such Class
of Certificates, up to their Carryforward Interest Distribution Amount for
such Distribution Date;
third, to make distributions of principal to the Holders of such
Class of Certificates, up to their Principal Distribution Amount for such
Distribution Date; and
fourth, to reimburse the Holders of such Class of Certificates for
any Unfunded Principal Balance Reductions previously incurred thereby, up
to their Loss Reimbursement Amount for such Distribution Date.
(c) On each Distribution Date, following the distributions on the REMIC III
Regular Interest Certificates to be made on such date pursuant to Sections
4.01(a) and 4.01(b), the Certificate Administrator shall pay any remaining
portion of the Standard Available Distribution Amount for such Distribution Date
to the Holders of the Class R Certificates.
(d) On each Distribution Date, the Certificate Administrator shall apply,
for the following purposes and in the following order of priority, any amount
then on deposit in the Distribution Account that represents a Prepayment Premium
collected with respect to any Mortgage Loan as of the end of the related
Collection Period:
first, to make distributions of additional interest to the Holders of
the respective Classes of the Yield Maintenance Certificates, up to, and
pro rata as among such Classes of Certificateholders based on, their
respective applicable Additional Yield Amounts; and
second, to make distributions of additional interest to the Holders of
the Class X Certificates, up to the remaining portion, if any, of such
Prepayment Premiums.
[For purposes of determining the portion of any Prepayment Premium that is
distributable to the Holders of any Class of Yield Maintenance Certificates on
any Distribution Date, the applicable "Additional Yield Amount" shall be an
amount equal to the product of: (i) the amount of such Prepayment Premium that
is so distributable; multiplied by (ii) a fraction (not
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greater than one or less than zero), the numerator of which is equal to the
excess, if any, of (A) the Pass-Through Rate applicable to such Class of Yield
Maintenance Certificates for the corresponding Interest Accrual Period, over (B)
the Monthly Equivalent Discount Rate, and the denominator of which is equal to
the excess, if any, of (X) the Mortgage Rate for the Mortgage Loan in respect of
which such Prepayment Premium was received, over (Y) the Monthly Equivalent
Discount Rate (as defined below); multiplied by (iii) a fraction (not greater
than one or less than zero), the numerator of which is equal to the Principal
Distribution Amount with respect to such Class of Yield Maintenance Certificates
for such Distribution Date, and the denominator of which is equal to the Total
Principal Distribution Amount for such Distribution Date.
For purposes of determining the portion of any Prepayment Premium that is
distributable to the Holders of any Class of Yield Maintenance Certificates on
any Distribution Date, the relevant "Monthly Equivalent Discount Rate" is a rate
which, when compounded monthly, is equivalent to the relevant Discount Rate when
compounded semi-annually; and the relevant "Discount Rate" shall be a rate
determined by the Certificate Administrator, in good faith, as follows --
(i) with respect to any prepaid Mortgage Loan identified on the
Mortgage Loan Schedule as having a yield maintenance calculation method of
"Present Value Type I", the "Discount Rate" will equal the average yield
for "This Week" as reported by the Federal Reserve Board in Federal Reserve
Statistical Release H.15(519) for the constant maturity treasury security
having a maturity coterminous with the remaining term to maturity or the
related Anticipated Repayment Date, as applicable, for the prepaid Mortgage
Loan, provided that if there are no constant maturity treasuries having
such a maturity, then that "Discount Rate" will equal the interpolation of
the yields of the constant maturity treasuries with maturities longer and
shorter than the remaining term to maturity or the related Anticipated
Repayment Date, as applicable, for the prepaid Mortgage Loan, or
(ii) with respect to any prepaid Mortgage Loan identified on the
Mortgage Loan Schedule as having a yield maintenance calculation of
"Present Value Type II", the "Discount Rate" will equal the average yield
for "This Week" as reported by the Federal Reserve Board in Federal Reserve
Statistical Release H.15(519) for the constant maturity treasury security
having a maturity coterminous with the remaining weighted average life of
the prepaid Mortgage Loan, provided that in the case of an ARD Loan, the
remaining weighted average life will be calculated assuming all principal
is repaid on the Anticipated Repayment Date, and provided, further, that if
there are no constant maturity treasuries having such a maturity, then that
"Discount Rate" will equal the interpolation of the yields of the constant
maturity treasuries with maturities longer and shorter than the remaining
weighted average life for the prepaid Mortgage Loan.
(e) On each Distribution Date, the Certificate Administrator shall withdraw
from the Distribution Account any amounts then on deposit in the Class Y
Sub-Account of the Distribution Account that represent Post-ARD Additional
Interest collected in respect of the ARD Loans during or prior to the related
Collection Period and shall distribute such amounts to the Holders of the Class
Y Certificates.
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(f) All distributions made with respect to each Class of Certificates on
each Distribution Date shall be allocated pro rata among the Holders of such
Certificates based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions made with respect to each Class of
Certificates on each Distribution Date shall be made to the Holders of such
Certificates of record at the close of business on the related Record Date and,
in the case of each such Holder, shall be made by wire transfer of immediately
available funds to the account thereof at a bank or other entity having
appropriate facilities therefor, if such Holder shall have provided the Trustee
or the Certificate Administrator with wiring instructions no later than the
related Record Date (which wiring instructions may be in the form of a standing
order applicable to all subsequent Distribution Dates), and otherwise shall be
made by check mailed to the address of such Holder as it appears in the
Certificate Register. The final distribution on each Certificate (determined, in
the case of a Principal Balance Certificate, without regard to any possible
future reimbursement of any portion of a previously incurred Unfunded Principal
Balance Reduction allocable to such Certificate) will be made in like manner,
but only upon presentation and surrender of such Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Any distribution that is to be
made with respect to a Principal Balance Certificate in reimbursement of any
portion of an Unfunded Principal Balance Reduction allocable to such
Certificate, which reimbursement is to occur after the date on which such
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the Holder that surrendered such Certificate at the last
address set forth for such Holder in the Certificate Register or at any other
address of which the Trustee was subsequently notified in writing.
(g) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each such indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the parties hereto shall
have any responsibility therefor except as otherwise provided by this Agreement
or applicable law. The Trustee and the Depositor shall perform their respective
obligations under the Letter of Representations among the Depositor, the Trustee
and the initial Depository, a copy of which Letter of Representations is
attached hereto as Exhibit C-1.
(h) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of their Certificates, and all rights and
interests of the Certificateholders in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts previously distributed on
the Certificates in accordance with this Agreement.
(i) Except as otherwise provided in Section 9.01, whenever the Certificate
Administrator expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date (such final distribution
to be determined, in the case of a Class of Principal Balance Certificates,
without regard to any possible future reimbursement of any portion of a
previously incurred Unfunded Principal Balance Reduction in respect of such
Class),
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the Certificate Administrator shall, as promptly as possible (and, in any event,
no later than two Business Days) after the related Determination Date, mail to
each Holder of such Class of Certificates of record on such date a notice to the
effect that:
(i) the Certificate Administrator expects that the final distribution
with respect to such Class of Certificates will be made on such
Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Certificate Registrar or at such other
location therein specified, and
(ii) no interest shall accrue on such Certificates from and after the
end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and credited to, and
shall be held uninvested in trust in, the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(i) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Certificate Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, then the Certificate Administrator, directly
or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders following the first anniversary
of the delivery of such second notice to the non-tendering Certificateholders
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust pursuant to this paragraph. If any
Certificates as to which notice has been given pursuant to this Section 4.01(i),
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, then, subject to applicable escheat laws, the
Certificate Administrator shall distribute to the Class R Certificateholders all
unclaimed funds.
(j) Notwithstanding any other provision of this Agreement, the Certificate
Administrator shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Certificate Administrator reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for such withholding. If the
Certificate Administrator does withhold any amount from payments or advances of
interest or original issue discount to any Certificateholder pursuant to federal
withholding requirements, the Certificate Administrator shall indicate the
amount withheld to such Certificateholder. Also notwithstanding any other
provision of this Agreement, any withholding tax imposed under the laws of the
Commonwealth of Puerto Rico on interest payments received by any REMIC Pool with
respect to any Mortgage Loan secured by a Mortgaged Property located in such
Commonwealth as a result of a Certificateholder's or Certificate Owner's
ownership of more than 50% of the related Borrower, shall be specially allocated
to such Certificateholder or Certificate Owner, as the case may be, and the
amount of such tax shall be treated as having been distributed to such
Certificateholder or Certificate Owner, as the case may be.
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(k) All distributions of interest made with respect to the Class X
Certificates on each Distribution Date pursuant to clause first of Section
4.01(a) shall be deemed to have first been distributed from REMIC II to REMIC
III on such Distribution Date as interest with respect to the various REMIC II
Regular Interests, up to, and pro rata as among the REMIC II Regular Interests
based on, the Class X Portion of the Current Interest Distribution Amount with
respect to each such REMIC II Regular Interest for such Distribution Date. All
distributions of interest made with respect to the Class X Certificates on each
Distribution Date pursuant to clause second of Section 4.01(a) shall be deemed
to have first been distributed from REMIC II to REMIC III on such Distribution
Date as interest with respect to the various REMIC II Regular Interests, up to,
and pro rata as among the REMIC II Regular Interests based on, the Class X
Portion of the Carryforward Interest Distribution Amount with respect to each
such REMIC II Regular Interest for such Distribution Date. In addition, all
distributions of additional interest (in the form of Prepayment Premiums) made
with respect to the Class X Certificates on each Distribution Date pursuant to
Section 4.01(d) shall be deemed to have first been distributed from REMIC II to
REMIC III on such Distribution Date as additional interest (in the form of
Prepayment Premiums) with respect to the various REMIC II Regular Interests, pro
rata in accordance with the respective amounts of principal deemed distributed
with respect to each such REMIC II Regular Interest for such Distribution Date
as provided in the following paragraph.
All distributions made with respect to each Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(a), Section
4.01(b) or Section 4.01(d) shall be deemed to have first been distributed from
REMIC II to REMIC III on such Distribution Date with respect to the
Corresponding REMIC II Regular Interest for such Class of Certificates. In each
case, if such distribution on any such Class of Principal Balance Certificates
was a distribution of interest, of principal, of additional interest (in the
form of Prepayment Premiums) or in reimbursement of any related Unfunded
Principal Balance Reductions with respect to such Class of Certificates, then
the corresponding distribution deemed to be made on the Corresponding REMIC II
Regular Interest for such Class of Certificates pursuant to the preceding
sentence shall be deemed also to be a distribution of interest, of principal, of
additional interest (in the form of Prepayment Premiums) or in reimbursement of
any related Unfunded Principal Balance Reductions with respect to such REMIC II
Regular Interest.
The actual distributions made by the Certificate Administrator on each
Distribution Date with respect to the Certificates pursuant to Section 4.01(a),
Section 4.01(b), Section 4.01(c) (to the extent such distributions relate to the
REMIC III Residual Interest) or Section 4.01(d), as applicable, shall be deemed
to have been so made from the amounts deemed distributed with respect to the
REMIC II Regular Interests on such Distribution Date pursuant to this Section
4.01(k). Notwithstanding the deemed distributions on the REMIC II Regular
Interests described in this Section 4.01(k), actual distributions of funds from
the Distribution Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 4.01(e), as
applicable.
(l) On each Distribution Date, immediately prior to making any actual
distributions on the Certificates pursuant to Section 4.01(a), Section 4.01(b)
or Section 4.01(c), or the corresponding deemed distributions on the REMIC II
Regular Interests pursuant to Section 4.01(k), the Certificate Administrator
shall be deemed to have made out of the Standard Available Distribution Amount
for such Distribution Date, the following distributions to REMIC II in the
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following order of priority, in each case to the extent of the remaining portion
of such Standard Available Distribution Amount:
first, distributions of interest with respect to all of the REMIC I
Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Current Interest Distribution Amounts
for such Distribution Date;
second, distributions of interest with respect to all of the REMIC I
Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Carryforward Interest Distribution
Amounts for such Distribution Date;
third, distributions of principal with respect to all of the REMIC I
Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Principal Distribution Amounts for
such Distribution Date; and
fourth, reimbursements of Unfunded Principal Balance Reductions with
respect to all of the REMIC I Regular Interests (including any REMIC I
Regular Interests whose Uncertificated Principal Balances have previously
been reduced to zero), up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Loss Reimbursement Amounts for such
Distribution Date.
In addition, on each Distribution Date, immediately prior to making any
actual distributions on the REMIC III Regular Interest Certificates pursuant to
Section 4.01(d), or the corresponding deemed distributions on the REMIC II
Regular Interests pursuant to Section 4.01(k), the Certificate Administrator
shall be deemed to have distributed to REMIC II each Prepayment Premium then on
deposit in the Distribution Account that was received on any Mortgage Loan or
REO Mortgage Loan during or prior to the related Collection Period, such
distribution to be deemed made with respect to the REMIC I Regular Interest that
relates to such Mortgage Loan or REO Mortgage Loan, as the case may be.
The distributions deemed made by the Certificate Administrator on each
Distribution Date with respect to the REMIC II Regular Interests pursuant to
Section 4.01(k), as well as the distributions actually made by the Certificate
Administrator on each Distribution Date with respect to the Certificates
pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(c) (to the extent
such distributions relate to the REMIC II Residual Interest or the REMIC III
Residual Interest) or Section 4.01(d), shall be deemed to have been so made from
the amounts deemed distributed with respect to the REMIC I Regular Interests on
such Distribution Date pursuant to this Section 4.01(l). Notwithstanding the
deemed distributions on the REMIC I Regular Interests described in this Section
4.01(l), actual distributions of funds from the Distribution Account shall be
made only in accordance with Section 4.01(a), Section 4.01(b), Section 4.01(c),
Section 4.01(d) or Section 4.01(e), as applicable.
SECTION 4.02. Statements to Certificateholders; Certain Other Reports.
(a) Based solely on information provided to the Certificate Administrator
by the Master Servicer and the Special Servicer pursuant to Sections 3.12,
4.02(b) and 4.02(c), the Certificate Administrator shall prepare (or cause to be
prepared) and, on each Distribution Date, provide or make available
electronically (or, upon request, by first class mail) to the Depositor, the
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Master Servicer, the Special Servicer, the Mortgage Loan Sellers, the
Underwriters, the Rating Agencies, the Controlling Class Representative, each
Certificateholder, Charter Research Corporation, The Trepp Group, Intex
Solutions, Inc. and, to the extent that the Certificate Administrator has in
accordance with Section 5.06(b) confirmed the Ownership Interest in the
Certificates held thereby, each Certificate Owner a statement substantially in
the form of, and containing the information set forth in, Exhibit E-1 hereto
(the "Distribution Date Statement"), detailing the distributions on such
Distribution Date and the performance, both in the aggregate and individually to
the extent available, of the Mortgage Loans and the Mortgaged Properties;
provided that the Certificate Administrator need not deliver to the Depositor,
the Master Servicer, the Special Servicer, the Mortgage Loan Sellers, the
Underwriters, Charter Research Corporation, The Trepp Group, Intex Solutions,
Inc., the Rating Agencies or the Controlling Class Representative any
Distribution Date Statement that has been made available via the Certificate
Administrator's Internet Website as provided below; and provided, further, that
the Certificate Administrator has no affirmative obligation to discover the
identities of Certificate Owners and need only react to Persons claiming to be
Certificate Owners in accordance with Section 5.06; and provided, further, that
the Certificate Administrator shall not provide Charter Research Corporation,
The Trepp Group and Intex Solutions, Inc. any information regarding the
Certificates until the Depositor confirms to the Certificate Administrator that
SSB and PWI have sold all of their respective allotments of the Non-Registered
Certificates to unaffiliated third parties.
On each Distribution Date occurring on and after the October 2000
Distribution Date, the Certificate Administrator shall also provide or make
available electronically (or, upon request, by first class mail) to each
Certificateholder (and each Certificate Owner that is receiving a Distribution
Date Statement on such Distribution Date), at the same time that the
Distribution Date Statement is delivered thereto, the Collateral Summary File,
the Bond File and, to the extent received by the Certificate Administrator since
the prior Distribution Date (or, in the case of the initial Distribution Date,
since the Closing Date), each other file and report comprising the CMSA Investor
Reporting Package (excluding the Loan Set-Up File).
On each Distribution Date occurring on and after the October 2000
Distribution Date, the Certificate Administrator shall provide or make available
electronically (or, upon request, by first class mail) to the Depositor, the
Mortgage Loan Sellers, the Underwriters, the Master Servicer, the Special
Servicer, the Rating Agencies and the Controlling Class Representative, a copy
of the following reports delivered to it by the Master Servicer pursuant to
Section 3.12(d) since the preceding Distribution Date (or, in the case of the
initial Distribution Date, since the Closing Date): (i) the Delinquent Loan
Status Report; (ii) the Historical Liquidation Report; (iii) the Historical Loan
Modification Report; (iv) the REO Status Report; (v) the Servicer Watch List
Report; (vi) the Comparative Financial Status Report (vii) a report setting
forth for the related Collection Period and on a cumulative basis all Realized
Losses and itemized expenses and Advance Interest paid by the Trust; and (viii)
a statistical and descriptive summary report of Material Document Defects,
Breaches and Material Breaches by any Mortgage Loan Seller, together with a copy
of a certification by the Certificate Administrator that it is in compliance
with its obligations pursuant to Sections 2.01, 2.02, and 2.03 herein. Such form
of report in clause (viii) of the prior sentence shall be reasonably
satisfactory to the Master Servicer. The Certificate Administrator shall provide
or make available electronically on each Distribution Date (or, upon request, by
first class mail) to the Depositor, the Master Servicer, the Special Servicer,
the Rating Agencies, and the Controlling Class Representative, a copy of the
Loan Periodic Update File
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containing information regarding each Mortgage Loan, the Property File and
Financial File containing information regarding each Mortgaged Property and REO
Property as of the end of the related Collection Period and a copy of the report
referred to above in clause (viii) of the second preceding sentence. On the
Distribution Date occurring in September 2000, the Certificate Administrator
shall provide or make available electronically (or, upon request, by first class
mail) to the Depositor, the Mortgage Loan Sellers, the Underwriters, the Master
Servicer, the Special Servicer, the Rating Agencies and the Controlling Class
Representative, a copy of the report delivered to it by the Master Servicer
pursuant to Section 3.12(d) with respect to such Distribution Date.
The Certificate Administrator shall have no obligation to provide
the information or reports described in this Section 4.02(a) until it has
received the requisite information or reports from the Master Servicer, and the
Certificate Administrator shall not be in default hereunder due to a delay in
providing the Certificateholder Reports caused by the Master Servicer's failure
to timely deliver any information or reports hereunder. None of the Master
Servicer, the Special Servicer, the Trustee or the Certificate Administrator
shall be responsible for the accuracy or completeness of any information
supplied to it by a Borrower or third party, and accepted by it in good faith,
that is included in any reports, statements, materials or information prepared
or provided by the Master Servicer, the Special Servicer, the Trustee or the
Certificate Administrator, as applicable. None of the Trustee, the Certificate
Administrator, the Master Servicer or the Special Servicer shall have any
obligation to verify the accuracy or completeness of any information provided by
a Borrower, a third party or each other.
The Certificate Administrator shall make available each month, to
Certificateholders, Certificate Owners, prospective investors and any other
interested party, via the Certificate Administrator's Internet Website, in a
downloadable format, all Distribution Date Statements and. commencing in October
2000, Unrestricted Servicer Reports (which in each case, if applicable will
identify each Mortgage Loan by mortgage loan number and property name, if any)
and, with the consent or at the direction of the Depositor, such other
information regarding the Certificates and/or the Mortgage Loans as the
Certificate Administrator may have in its possession; provided that, unless (i)
the particular report or information has been filed with the Commission pursuant
to Section 8.15 or (ii) the Depositor has notified the Certificate Administrator
that SSB and PWI have sold the Non-Registered Certificates to unaffiliated third
parties, access to such reports and information on the Certificate
Administrator's Internet Website will be password protected to the same extent,
and limited to the same Persons, as the Restricted Servicer Reports. After the
Certificate Administrator shall have received the notice from the Depositor
regarding the sale of the Non-Registered Certificates, as described in the
preceding sentence, the Certificate Administrator shall make the Distribution
Date Statement available to any interested party via its electronic bulletin
board and fax-on-demand service. The Certificate Administrator shall make the
Restricted Servicer Reports available each month, via the Certificate
Administrator's Internet Website, to any Certificateholder, Certificate Owner,
any Person identified by any Certificateholder or Certificate Owner as a
prospective transferee of a Certificate or interest therein, any Underwriter,
any Rating Agency, the Master Servicer, the Special Servicer, the Controlling
Class Representative or any party hereto, with the use of a password provided by
the Certificate Administrator to such person upon receipt by the Certificate
Administrator from such Person of a certification substantially in the form of
Exhibit L-1 or Exhibit L-2, as applicable; provided, however, that the
Certificate Administrator shall provide such password to each party hereto, the
Controlling Class
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Representative, the Mortgage Loan Sellers, the Master Servicer, the Special
Servicer and each Rating Agency without requiring such certification. In
addition, the Certificate Administrator is hereby directed and authorized to
make available, as a convenience to interested parties (and not in furtherance
of the distribution of the Prospectus or the Prospectus Supplement under the
securities laws), this Agreement, the Prospectus and the Prospectus Supplement
via the Certificate Administrator's Internet Website. The Certificate
Administrator will make no representations or warranties as to the accuracy or
completeness of such documents and will assume no responsibility therefor.
The Certificate Administrator's Internet Website shall be located at
"www.chase.com/sfa" or at such other address as shall be specified by the
Certificate Administrator from time to time in the Distribution Date Statement
and in one or more written notices delivered to the other parties hereto, the
Controlling Class Representative (if any), the Certificateholders and the Rating
Agencies. In connection with providing access to the Certificate Administrator's
Internet Website and electronic bulletin board, the Certificate Administrator
may require registration and the acceptance of a disclaimer. The Certificate
Administrator shall not be liable for the dissemination of information in
accordance with this Agreement.
The Certificate Administrator shall be entitled to rely on but shall
not be responsible for the content or accuracy of any information provided by
third parties for purposes of preparing the Distribution Date Statement and may
affix thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
(b) The Master Servicer may maintain an Internet website at
"www.orecm.com", or such other site as may be specified by any successor Master
Servicer, which may contain the information and reports required for the Master
Servicer to produce herein. Access by Certificateholders, Certificate Owners,
the Controlling Class Representative, the Depositor and the Rating Agencies
shall be coordinated with the Certificate Administrator, using a password and
user name.
Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of the Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. The Master Servicer or the Special Servicer
may affix to any information provided by it any disclaimer it deems appropriate
in its reasonable discretion (without suggesting liability on the part of any
other party hereto).
(c) Within a reasonable period of time after the end of each
calendar year, the Certificate Administrator shall prepare, or cause to be
prepared, and mail to each Person who at any time during the calendar year was a
Certificateholder (i) a statement containing the aggregate information set forth
on page 2 of the Distribution Date Statement hereto for such calendar year or
applicable portion thereof during which such person was a Certificateholder and
(ii) such other customary information as the Certificate Administrator deems
necessary or desirable for Certificateholders to prepare their federal, state
and local income tax returns, including the amount
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of original issue discount accrued on the Certificates, if applicable. The
obligations of the Certificate Administrator in the immediately preceding
sentence shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Certificate Administrator
pursuant to any requirements of the Code. As soon as practicable following the
request of any Certificateholder in writing, the Certificate Administrator shall
furnish to such Certificateholder such information regarding the Mortgage Loans
and the Mortgaged Properties as such Certificateholder may reasonably request
and, as has been furnished to, or may otherwise be in the possession of, the
Certificate Administrator. The Master Servicer and the Special Servicer shall
promptly provide to the Depositor, the Tax Administrator, the Certificate
Administrator and the Trustee such information regarding the Mortgage Loans and
the Mortgaged Properties as such party may reasonably request and at the
requesting party's expense, and that has been furnished to, or may otherwise be
in the possession of, the Master Servicer or the Special Servicer, as the case
may be.
(d) The Master Servicer shall have no obligation to provide
information or reports required pursuant to this Agreement with respect to
Specially Serviced Mortgage Loans and REO Properties until it has received the
requisite information or reports from the Special Servicer and the Master
Servicer shall not be in default hereunder due to a delay in providing such
information or reports caused by the Special Servicer's failure to deliver the
requisite information or reports.
SECTION 4.03. P&I Advances.
(a) On or before 3:00 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall, subject to Section 4.03(c), either (i) deposit
into the Distribution Account from its own funds an amount equal to the
aggregate amount of P&I Advances, if any, to be made in respect of the related
Distribution Date, (ii) apply amounts held in the Collection Account for future
distribution to Certificateholders in subsequent months in discharge of any such
obligation to make P&I Advances, or (iii) make P&I Advances in the form of any
combination of (i) and (ii) aggregating the total amount of P&I Advances to be
made; provided that if Late Collections of any of the delinquent principal
and/or interest in respect of which it is to make P&I Advances on any P&I
Advance Date are then on deposit in the Collection Account, the Master Servicer
shall use such Late Collections (net of any Master Servicing Fees and Workout
Fees payable therefrom) to make such P&I Advances. Any amounts held in the
Collection Account for future distribution and so used to make P&I Advances
(other than the Late Collections of the delinquent principal and/or interest
contemplated by the proviso to the preceding sentence) shall be appropriately
reflected in the Master Servicer's records and replaced by the Master Servicer
by deposit in the Collection Account on or before the next succeeding
Determination Date (to the extent not previously replaced through the deposit of
Late Collections of the delinquent principal and/or interest in respect of which
such P&I Advances were made). If, as of 3:00 p.m., New York City time, on any
Master P&I Advance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee and the Certificate Administrator the requisite
Officer's Certificate and documentation related to a determination of
nonrecoverability of a P&I Advance pursuant to Section 4.03(c)) or shall not
have remitted any portion of the Master Servicer Remittance Amount required to
be remitted on such date, then the Certificate Administrator shall provide
notice of such failure to the Trustee and the Master Servicer, before 5:00 p.m.,
New York City time, on such P&I Advance Date. If, after such
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notice, the Certificate Administrator does not receive the full amount of such
P&I Advances by 11:00 a.m. (New York City time) on the related Distribution
Date, then the Certificate Administrator shall promptly notify the Trustee and,
unless the Trustee determines that such Advance would be a Nonrecoverable P&I
Advance if made, the Trustee shall make the portion of such P&I Advances that
was required to be, but was not, made by the Master Servicer on such P&I Advance
Date.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer in respect of any Distribution Date, subject to Section 4.03(c) below,
shall equal the aggregate of all Monthly Payments (other than Balloon Payments)
and any Assumed Monthly Payments, in each case net of any related Master
Servicing Fees and Workout Fees, due or deemed due, as the case may be, in
respect of the Mortgage Loans (including Balloon Mortgage Loans delinquent as to
their respective Balloon Payments) and any REO Mortgage Loans on their
respective Due Dates during the related Collection Period, in each case to the
extent such amount was not paid by or on behalf of the related Borrower or
otherwise collected as of the close of business on the related Determination
Date; provided that, if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, then the interest portion of any P&I Advance required
to be made in respect of such Required Appraisal Loan for the related
Distribution Date shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such P&I Advance) to equal the
product of (i) the amount of the interest portion of such P&I Advance that would
otherwise be required to be made in respect of such Required Appraisal Loan for
such Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which shall equal the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date, net of the related Appraisal Reduction Amount, and the
denominator of which shall equal the Stated Principal Balance of such Required
Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer (or, if applicable, the Trustee or any Fiscal Agent) that it has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
reasonable, good faith judgment and shall be evidenced by an Officer's
Certificate delivered to the Depositor, to the Special Servicer, to the
Controlling Class Representative and, if made by the Master Servicer, to the
Trustee (on or before the related P&I Advance Date in the case of a proposed P&I
Advance), setting forth the basis for such determination, accompanied by a copy
of an Appraisal of the related Mortgaged Property or REO Property performed
within the 12 months preceding such determination by a Qualified Appraiser, if
available, and further accompanied by any other information, including
engineers' reports, environmental surveys or similar reports, that the Person
making such determination may have obtained and that support such determination.
The Trustee and any Fiscal Agent shall be entitled to conclusively rely on any
nonrecoverability determination made by the Master Servicer with respect to a
particular P&I Advance. The Special Servicer shall promptly furnish any party
required to make P&I Advances hereunder with any information in its possession
regarding the Specially Serviced Mortgage Loans and REO Properties as such party
required to make P&I Advances may reasonably request.
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(d) The Master Servicer, the Trustee and any Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each P&I Advance made thereby (with its own
funds), for so long as such P&I Advance is outstanding. Such interest with
respect to any P&I Advance shall be payable during the Collection Period in
which such Advance is reimbursed: (i) first, out of any Default Charges
collected with respect to the entire Mortgage Pool during such Collection
Period; and (ii) then, after such Advance is reimbursed, but only if and to the
extent that such Default Charges are insufficient to cover such Advance
Interest, out of general collections on the Mortgage Loans and REO Properties on
deposit in the Collection Account. As and to the extent provided in Section
3.05(a), the Master Servicer shall reimburse itself, the Trustee or any Fiscal
Agent, as applicable, for any outstanding P&I Advance made thereby as soon as
practicable after funds available for such purpose are deposited in the
Collection Account, and in no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the corresponding Late
Collection was received as of the related P&I Advance Date. The Master Servicer
shall not be entitled to Advance Interest to the extent a payment is received
but is being held by the Master Servicer in suspense.
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Sections 4.01(a) and
4.01(b), the Certificate Administrator shall determine the amount, if any, by
which (i) the then aggregate of the Class Principal Balances of all the Classes
of Principal Balance Certificates, exceeds (ii) the aggregate Stated Principal
Balance of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then the Class Principal Balances
of the Class P, Class N, Class M, Class L, Class K, Class J, Class H, Class G,
Class F, Class E, Class D, Class C and Class B Certificates shall be reduced
sequentially, in that order, until such excess is reduced to zero; provided
that, no such Class of Certificates shall have its Class Principal Balance
reduced unless and until the Class Principal Balance of each other Class of
Certificates, if any, listed in front of it has been reduced to zero; and
provided, further, that if after the foregoing reductions, the amount described
in clause (i) of the preceding sentence still exceeds the amount described in
clause (ii) of such sentence, then the respective Class Principal Balances of
the Class A-1 and Class A-2 Certificates shall be reduced on a pro rata basis in
accordance with the relative sizes of such Class Principal Balances, until any
such remaining excess is reduced to zero. All such reductions in the Class
Principal Balances of the respective Classes of the Principal Balance
Certificates shall constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(k), the Certificate Administrator shall determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests, exceeds (ii) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then the Uncertificated Principal
Balances of REMIC II Regular Interest P, REMIC II Regular Interest N, REMIC II
Regular Interest M, REMIC II Regular Interest L, REMIC II Regular Interest K,
REMIC II Regular Interest J, REMIC II Regular Interest H, REMIC II Regular
Interest G, REMIC II Regular Interest F, REMIC II Regular Interest E, REMIC II
Regular Interest D, REMIC II Regular Interest C and REMIC II Regular Interest B,
shall be
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reduced sequentially, in that order, until such excess is reduced to zero;
provided that, no such REMIC II Regular Interest shall have its Uncertificated
Principal Balance reduced unless and until the Uncertificated Principal Balance
of each other REMIC II Regular Interest, if any, listed in front of it has been
reduced to zero; and provided, further, that if after the foregoing reductions,
the amount described in clause (i) of the preceding sentence still exceeds the
amount described in clause (ii) of such sentence, then the respective
Uncertificated Principal Balances of REMIC II Regular Interest A-1 and REMIC II
Regular Interest A-2 shall be reduced on a pro rata basis in accordance with the
relative sizes of such Uncertificated Principal Balances, until any such
remaining excess is reduced to zero. All such reductions in the Uncertificated
Principal Balances of the respective REMIC II Regular Interests shall be deemed
to constitute allocations of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(l),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to the extent
necessary to equal the Stated Principal Balance of the related Mortgage Loan or
REO Mortgage Loan, as the case may be, that will be outstanding immediately
following such Distribution Date. All such reductions in the Uncertificated
Principal Balances of the respective REMIC I Regular Interests shall be deemed
to constitute allocations of Realized Losses and Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
The Certificate Administrator shall, provided it receives the
necessary information from the Master Servicer and/or Special Servicer, be
responsible for performing all calculations necessary in connection with the
actual and deemed distributions to be made pursuant to Section 4.01, the
preparation of the Distribution Date Statements pursuant to Section 4.02(a) and
the actual and deemed allocations of Realized Losses and Additional Trust Fund
Expenses to be made pursuant to Section 4.04. The Certificate Administrator
shall calculate the Standard Available Distribution Amount for each Distribution
Date and shall allocate such amount among Certificateholders in accordance with
this Agreement. Absent actual knowledge of an error therein, the Certificate
Administrator shall have no obligation to recompute, recalculate or otherwise
verify any information provided to it by the Master Servicer. The calculations
by the Certificate Administrator contemplated by this Section 4.05 shall, in the
absence of manifest error, be presumptively deemed to be correct for all
purposes hereunder.
SECTION 4.06. Appointment of Certificate Administrator.
The Trustee may, at its own expense, appoint any Person with
appropriate experience as a paying agent and securities administrator to act as
Certificate Administrator hereunder; provided that, in the absence of any other
Person appointed in accordance herewith acting as Certificate Administrator, the
Trustee agrees to act in such capacity in accordance with the terms hereof. The
appointment of a Certificate Administrator shall not relieve the Trustee from
any of its obligations hereunder, and the Trustee shall remain responsible for
all acts and omissions of the Certificate Administrator. The Trustee shall cause
any such Certificate Administrator appointed by it to execute and deliver to the
Trustee an instrument in which such Certificate Administrator shall agree to act
in such capacity in accordance with the obligations and responsibilities
provided
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for herein. The Certificate Administrator shall be subject to the same standards
of care, limitations on liability and rights to indemnity as the Trustee, and
the provisions of Sections 8.01, 8.02, 8.03, 8.04, 8.05(b), 8.05(c), 8.05(d) and
8.05(e) shall apply to the Certificate Administrator to the same extent that
they apply to the Trustee. Any Certificate Administrator appointed in accordance
with this Section 4.06 may at any time resign by giving at least 30 days'
advance written notice of resignation to the Trustee, the Master Servicer, the
Special Servicer and the Depositor. The Trustee may at any time terminate the
agency of any Certificate Administrator appointed in accordance with this
Section 4.06 by giving written notice of termination to such Certificate
Administrator, the Master Servicer, the Special Servicer and the Depositor.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-6; provided, however, that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Class X, Class A, Class B,
Class C, Class D, Class E, Class F and Class G Certificates shall initially be
held and transferred through the book-entry facilities of the Depository. The
REMIC III Regular Interest Certificates will be issuable only in denominations
corresponding to initial Certificate Principal Balances (or, in the case of the
Class X Certificates, initial Certificate Notional Amounts) as of the Closing
Date of: (i) in the case of the Class X Certificates, $1,000,000 and any whole
dollar denomination in excess thereof; (ii) in the case of the Class A-1, Class
A-2, Class B, Class C, Class D, Class E, Class F and Class G Certificates,
$10,000 and any whole dollar denomination in excess thereof; and (iii) in the
case of the other REMIC III Regular Interest Certificates, $100,000 and any
whole dollar denomination in excess thereof. The Class R Certificates and the
Class Y Certificates will be issuable only in denominations representing
Percentage Interests in the related Class of not less than 10.0%.
(b) The Certificates shall be executed by manual or facsimile signature
by an authorized officer of the Certificate Registrar on behalf of the Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized officers of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee may, at its own expense, appoint any Person with
appropriate experience as a securities registrar to act as Certificate Registrar
hereunder; provided that, in the absence of any other Person appointed in
accordance herewith acting as Certificate Registrar, the Trustee agrees to act
in such capacity in accordance with the terms hereof. The appointment of a
Certificate Registrar shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of the Certificate Registrar. The Trustee
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shall cause any such Certificate Registrar appointed by it to execute and
deliver to the Trustee an instrument in which such Certificate Registrar shall
agree to act in such capacity in accordance with the obligations and
responsibilities provided for herein. The Certificate Registrar shall be subject
to the same standards of care, limitations on liability and rights to indemnity
as the Trustee, and the provisions of Sections 8.01, 8.02, 8.03, 8.04, 8.05(b),
8.05(c), 8.05(d) and 8.05(e) shall apply to the Certificate Registrar to the
same extent that they apply to the Trustee. Any Certificate Registrar appointed
in accordance with this Section 5.02(a) may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the Master
Servicer, the Special Servicer and the Depositor. The Trustee may at any time
terminate the agency of any Certificate Registrar appointed in accordance with
this Section 5.02(a) by giving written notice of termination to such Certificate
Registrar the Master Servicer, the Special Servicer and the Depositor.
At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Tax Administrator shall have the right to inspect the Certificate Register or to
obtain a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register.
If any Certificateholder makes written request to the Certificate
Registrar, and such request states that such Certificateholders desires to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication that such Certificateholder proposes to transmit, then the
Certificate Registrar shall, within 30 days after the receipt of such request,
afford the requesting Certificateholder access during normal business hours to,
or deliver to the requesting Certificateholder a copy of, the most recent list
of Certificateholders held by the Certificate Registrar (which list shall be
current as of a date no earlier than 30 days prior to the Certificate
Registrar's receipt of such request). Every Certificateholder, by receiving such
access, acknowledges that neither the Certificate Registrar nor the Trustee will
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of any Certificateholder regardless of the source
from which such information was derived.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a transfer of any Non-Registered Certificate that constitutes a
Definitive Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any Non-Registered Certificate by the Depositor or an Affiliate of
the Depositor or a transfer of a global Class X Certificate to a successor
Depository as contemplated by Section 5.03(c)), then the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form
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attached hereto as Exhibit F-1A; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached hereto as Exhibit F-1B and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or as Exhibit F-2B; or (iii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Tax Administrator, the Certificate Administrator, the Trustee, any
Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based.
If a transfer of an interest in any Class X Certificate that
constitutes a Book-Entry Certificate is to be made without registration under
the Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of an interest in a Class X Certificate by the
Depositor or an Affiliate of the Depositor), then the Certificate Owner desiring
to effect such transfer shall require from its prospective Transferee: (i) a
certificate substantially in the form attached either as Exhibit F-2C hereto or
as Exhibit F-2D hereto; or (ii) an Opinion of Counsel to the effect that such
transfer may be made without registration under the Securities Act.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer, sale, pledge or other disposition of any Non-Registered Certificate or
interest therein shall, and does hereby agree to, indemnify the Depositor, SSB,
PWI, the Trustee, any Fiscal Agent, the Master Servicer, the Special Servicer,
the Tax Administrator, Certificate Administrator and the Certificate Registrar
against any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
(c) No transfer of a Certificate or any interest therein shall be made
(A) to any retirement plan or other employee benefit plan, including individual
retirement accounts and annuities, Keogh plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan, if the purchase and holding of such Certificate or
interest therein by the prospective Transferee would result in a violation of
Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code.
Except in connection with the initial issuance of the Certificates or
any transfer of a Subordinate, Class X or Class Y Certificate by the Depositor
or an Affiliate of the Depositor or any transfer of a Class B, Class C, Class D,
Class E, Class F, Class G or Class X Certificate to a successor Depository as
contemplated by Section 5.03(c), the Certificate Registrar shall refuse to
register the transfer of a Subordinate, Class X or Class Y Certificate that
constitutes a Definitive
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Certificate unless it has received from the prospective Transferee, either (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) a certification to the effect that the purchase and continued holding of
such Certificate by such prospective Transferee is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60; or
(iii) in the case of a Class X Certificate that is being acquired by or on
behalf of a Plan in reliance on Prohibited Transaction Exemption 91-23, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer or any Borrower with respect to Mortgage Loans constituting 5%
of the aggregate amortized principal of all the Mortgage Loans determined as of
the Closing Date, or by any Affiliate of such Person, and (Z) agrees that it
will obtain from each of its Transferees a written representation that such
Transferee, if a Plan, satisfies the requirements of the immediately preceding
clauses (iii)(X) and (iii)(Y), together with a written agreement that such
Transferee will obtain from each of its Transferees that are Plans a similar
written representation regarding satisfaction of the requirements of the
immediately preceding clauses (iii)(X) and (iii)(Y); or (iv) a certification of
facts and an Opinion of Counsel (which Opinion of Counsel shall not be an
expense of the Trustee, the Certificate Registrar or the Trust) which otherwise
establish to the reasonable satisfaction of the Certificate Registrar that such
transfer will not result in a violation of Section 406 of ERISA or Section 4975
of the Code or result in the imposition of an excise tax under Section 4975 of
the Code. It is hereby acknowledged that the form of certification attached
hereto as Exhibit G-1 is acceptable for purposes of the preceding sentence.
Except in connection with the initial issuance of the Certificates or
any transfer of an interest in a Class X Certificate by the Depositor or an
Affiliate of the Depositor, the Certificate Owner desiring to effect a transfer
of an interest in a Class X Certificate shall obtain from its prospective
Transferee either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
interest in such Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) if such interest in such Certificate is being
acquired by or on behalf of a Plan in reliance on Prohibited Transaction
Exemption 91-23, a certification to the effect that such Plan (X) is an
accredited investor as defined in Rule 501(a) of Regulation D of the Securities
Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by
the Trustee, the Depositor, any Mortgage Loan Seller, the Master Servicer, the
Special Servicer, any Sub-Servicer or any Borrower with respect to Mortgage
Loans constituting 5% of the aggregate amortized principal of all the Mortgage
Loans determined as of the Closing Date, or by any Affiliate of such Person, and
(Z) agrees that it will obtain from each of its Transferees a written
representation that such Transferee, if a Plan, satisfies the requirements of
the immediately preceding clauses (ii)(X) and (ii)(Y); together with a written
agreement that such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (ii)(X) and (ii)(Y); or (iii)
a certification of facts and an Opinion of Counsel to the effect that such
transfer will not result in a violation of Section 406 of ERISA or Section 4975
of the Code or result in the imposition of an excise tax under Section 4975 of
the Code. It is hereby acknowledged that the form of certification attached
hereto as Exhibit G-2 is acceptable for purposes of the preceding sentence.
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(d) (i) Each Person who has or who acquires any Ownership Interest in
a Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (ii)(A) below to deliver or
cause the delivery of payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) below to negotiate the
terms of any mandatory disposition and to execute all instruments of Transfer
and to do all other things necessary in connection with any such disposition.
The rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Tax Administrator and the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
Class R Certificate until its receipt, of an affidavit and agreement
substantially in the form attached hereto as Exhibit H-1 (a "Transfer
Affidavit and Agreement"), from the proposed Transferee, representing
and warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the
Class R Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in a
Class R Certificate it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of this Section 5.02(d) and
agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate Registrar
has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Class R
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom such Person attempts
to transfer its Ownership Interest in such Class R Certificate and (2)
not to transfer its Ownership Interest in such Class R Certificate
unless it provides to the Certificate Registrar and the Trustee a
certificate substantially in the form attached hereto as Exhibit H-2
stating that, among other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Class R Certificate, by purchasing such Ownership Interest, agrees to
give the Tax Administrator and the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Class R
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Certificate if it is, or is holding an Ownership Interest in a Class R
Certificate on behalf of, a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Class R Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Class R Certificate
that was in compliance with the provisions of this Section 5.02(d)
shall be restored, to the extent permitted by law, to all rights as
Holder thereof retroactive to the date of registration of such Transfer
of such Class R Certificate. None of the Depositor, the Trustee or the
Certificate Registrar, shall be under any liability to any Person for
any registration of Transfer of a Class R Certificate that is in fact
not permitted by this Section 5.02(d) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the restrictions in this Section 5.02(d),
then, to the extent that retroactive restoration of the rights of the
preceding Holder of such Class R Certificate as described in clause
(ii) (A) above shall be invalid, illegal or unenforceable, the Trustee
shall have the right but not the obligation, to cause the transfer of
such Class R Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and the Trustee shall
not be liable to any Person having an Ownership Interest in such Class
R Certificate or any other Person as a result of its exercise of such
discretion. Such purported Transferee shall promptly endorse and
deliver such Class R Certificate in accordance with the instructions of
the Trustee. Such Permitted Transferee may be the Trustee itself or any
Affiliate of the Trustee.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished to it
by the other parties hereto necessary to compute any tax imposed (A) as a result
of the Transfer of an Ownership Interest in a Class R Certificate to any Person
who is a Disqualified Organization, including the information described in
Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to
the "excess inclusions" of the REMIC I Residual Interest, the REMIC II Residual
Interest and the REMIC III Residual Interest and (B) as a result of any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Class R Certificate having as among its
record holders at any time any Person which is a Disqualified Organization, and
each of the other parties hereto shall furnish to the Tax Administrator all
information in its possession necessary for the Tax Administrator to discharge
such obligation. The Person holding such Ownership Interest shall be responsible
for the reasonable compensation of the Tax Administrator for providing such
information.
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there shall
have been delivered to the Trustee and the Tax Administrator the following:
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(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such provisions
will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Trustee and the Tax Administrator, obtained at the expense of the
party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trustee, the Tax
Administrator or the Trust), to the effect that doing so will not (1)
cause any REMIC Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of any Class R Certificate to a
Person which is not a Permitted Transferee or (2) cause a Person other
than the prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Class R Certificate to a Person that is not
a Permitted Transferee.
(e) The Trust has not been registered as an investment company under
the Investment Company Act. Accordingly, no transfer of any Class H, Class J,
Class K, Class L, Class M, Class N, Class P or Class Y Certificate shall be made
to any Person other than an Institutional Accredited Investor or a Qualified
Institutional Buyer, and no transfer of any Class R Certificate shall be made to
any Person other than a Qualified Institutional Buyer. If a transfer of any such
Certificate is to be made, then the Certificate Registrar shall require, in
order to assure compliance with the foregoing, that the prospective transferee
of such Certificate (or the transferor on its behalf) certify in writing that
the prospective transferee is a Qualified Institutional Buyer or, alternatively,
but solely in the case of a Class H, Class J, Class K, Class L, Class M, Class
N, Class P or Class Y Certificate, an Institutional Accredited Investor.
(f) If a Person is acquiring any Subordinate or Class Y Certificate as
a fiduciary or agent for one or more accounts, such Person shall be required to
deliver to the Certificate Registrar a certification to the effect that, and
such other evidence as may be reasonably required by the Certificate Registrar
to confirm that, it has (i) sole investment discretion with respect to each such
account and (ii) full power to make the applicable foregoing acknowledgments,
representations, warranties, certifications and/or agreements with respect to
each such account as set forth in subsections (b), (c), (d) and/or (e), as
appropriate, of this Section 5.02.
(g) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(h) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class evidencing a
like aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute, authenticate and deliver the Certificates
which the Certificateholder making the exchange is entitled to receive.
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(i) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(j) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(k) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(l) The Certificate Registrar shall provide to each of the other
parties hereto, upon reasonable written request and at the expense of the
requesting party, an updated copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) The Class X, Class A, Class B, Class C, Class D, Class E, Class F
and Class G Certificates shall, in the case of each Class thereof, initially be
issued as one or more Certificates registered in the name of the Depository or
its nominee and, except as provided in Section 5.03(c), transfer of such
Certificates may not be registered by the Certificate Registrar unless such
transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and, subject to Section 5.02(c), transfer their
respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in Section
5.03(c) below, shall not be entitled to fully registered, physical Certificates
("Definitive Certificates") in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner. Each Depository Participant shall only transfer the
Ownership Interests in the Book-Entry Certificates of Certificate Owners it
represents or of indirect participating brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
(b) The Depositor, the Master Servicer, the Special Servicer, the
Certificate Administrator, the Tax Administrator, the Trustee, any Fiscal Agent
and the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and indirect
participating brokerage firms representing such Certificate Owners. Multiple
requests and directions from, and votes of, the Depository as Holder of the
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
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solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Certificate
Administrator and the Certificate Registrar in writing that the Depository is no
longer willing or able to discharge properly its responsibilities as depository
with respect to any Class of Book-Entry Certificates, and (B) the Depositor is
unable to locate a qualified successor, or (ii) the Depositor at its option
advises the Trustee, the Certificate Administrator and the Certificate Registrar
in writing that it elects to terminate the book-entry system through the
Depository with respect to any Class of Book-Entry Certificates (or any portion
of any Class thereof), the Certificate Registrar shall notify all affected
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to such Certificate Owners
requesting the same. Upon surrender to the Certificate Registrar of any Class of
Book-Entry Certificates (or any portion of any Class thereof) by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Certificate Registrar shall execute, authenticate and deliver, the
Definitive Certificates in respect of such Class (or portion thereof) to the
Certificate Owners identified in such instructions. None of the Depositor, the
Master Servicer, the Special Servicer, the Certificate Administrator, the Tax
Administrator, the Trustee or the Certificate Registrar shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Book-Entry
Certificates, the registered holders of such Definitive Certificates shall be
recognized as Certificateholders hereunder and, accordingly, shall be entitled
directly to receive payments on, to exercise Voting Rights with respect to, and
to transfer and exchange such Definitive Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
the same Class and like Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee and the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the reasonable fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor,
the Master Servicer, the Special Servicer, the Certificate Administrator, the
Tax Administrator, the Trustee, any Fiscal Agent, the Certificate Registrar and
any agent of any of them may treat the Person in whose
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name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever, and none of the Depositor, the Master Servicer, the Special
Servicer, the Certificate Administrator, the Tax Administrator, the Trustee, any
Fiscal Agent, the Certificate Registrar or any agent of any of them shall be
affected by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the transfer requirements of Section 5.02(c).
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the
Certificate Administrator shall make such determination based on a certificate
of such Person which shall be substantially in the form of paragraph 1 of
Exhibit L-1 hereto (or such other form as shall be reasonably acceptable to the
Certificate Administrator) and shall specify the Class and Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of the Book-Entry
Certificate beneficially owned; provided, however, that none of the Trustee, the
Certificate Administrator or the Certificate Registrar shall knowingly recognize
such Person as a Certificate Owner if such Person, to the actual knowledge of a
Responsible Officer of the Trustee, the Certificate Administrator or the
Certificate Registrar, as the case may be, acquired its Ownership Interest in a
Book-Entry Certificate in violation of Section 5.02(c), or if such Person's
certification that it is a Certificate Owner is in direct conflict with
information obtained by the Trustee, the Certificate Administrator or the
Certificate Registrar from the Depository, Depository Participants and/or
indirect participating brokerage firms for which Depository Participants act as
agents, with respect to the identity of a Certificate Owner. The Trustee, the
Certificate Administrator and the Certificate Registrar shall each exercise its
reasonable discretion in making any determination under this Section 5.06(b) and
shall afford any Person providing information with respect to its beneficial
ownership of any Book-Entry Certificate an opportunity to resolve any
discrepancies between the information provided and any other information
available to the Trustee, the Certificate Administrator or the Certificate
Registrar, as the case may be.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER
AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer and the
Special Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the
Master Servicer or the Special Servicer.
Subject to the following paragraph, each of the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a corporation, bank, trust company, partnership,
limited liability company, association or other legal entity under the laws of
the jurisdiction wherein it was organized, and each shall obtain and preserve
its qualification to do business as a foreign entity in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Each of the Depositor, the Master Servicer and the Special Servicer may
be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets to any Person, in which case, any Person
resulting from any merger or consolidation to which the Depositor, the Master
Servicer or the Special Servicer shall be a party, or any Person succeeding to
the business of the Depositor, the Master Servicer or the Special Servicer,
shall be the successor of the Depositor, the Master Servicer or the Special
Servicer, as the case may be, hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that no successor or
surviving Person shall succeed to the rights of the Master Servicer or the
Special Servicer unless such succession will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, and the Special Servicer.
None of the Depositor, the Master Servicer, the Special Servicer or any
director, manager, member, officer, employee or agent of any of the foregoing
shall be under any liability to the Trust or the Certificateholders for any
action taken, or not taken, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer, the Special Servicer or any such other Person
against any breach of a representation or warranty made herein, or against any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof, or against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
obligations
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or duties hereunder, or by reason of negligent disregard of such obligations and
duties. The Depositor, the Master Servicer, the Special Servicer and any
director, officer, manager, member, employee or agent of any of the foregoing
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, the Special Servicer and any
director, officer, manager, member, employee or agent of any of the foregoing
shall be indemnified and held harmless by the Trust out of the Collection
Account against any loss, liability or reasonable out-of-pocket expense incurred
in connection with any claim or legal, equitable or administrative action
relating to this Agreement, the Certificates or any asset of the Trust, other
than any such loss, liability or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof, including Section 10.01(f); (ii) that
constitutes a Servicing Advance and is otherwise reimbursable pursuant to this
Agreement (provided that this clause (ii) is not intended to limit the Master
Servicer's or Special Servicer's right of recovery of liabilities and expenses
incurred as a result of being the defendant, or participating in a proceeding to
which another indemnified party under this Section 6.03 is a defendant, in legal
action relating to this Agreement); or (iii) which was incurred in connection
with claims against such party resulting from (A) any breach of a representation
or warranty made herein by such party, or (B) willful misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder by such party,
or from negligent disregard of such obligations or duties. None of the
Depositor, the Master Servicer or the Special Servicer shall be under any
obligation to appear in, prosecute or defend any legal, equitable or
administrative action unless such action is related to its respective duties
under this Agreement and, except in the case of a legal action contemplated by
Section 3.22, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Depositor, the Master Servicer or the
Special Servicer may in its discretion undertake any such action which it may
reasonably deem necessary or desirable with respect to the enforcement and/or
protection of the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. In such event, the legal expenses and costs of
such action, and any liability resulting therefrom, shall be expenses, costs and
liabilities of the Trust, and the Depositor, the Master Servicer and the Special
Servicer each shall be entitled to the direct payment of such expenses or to be
reimbursed therefor from the Collection Account as provided in Section 3.05(a).
SECTION 6.04. Master Servicer and Special Servicer Not to Resign.
The Master Servicer and the Special Servicer may each resign from the
obligations and duties hereby imposed on it, upon a determination that its
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it (the other activities of the Master Servicer or the Special Servicer,
as the case may be, so causing such a conflict being of a type and nature
carried on by the Master Servicer or the Special Servicer, as the case may be,
at the date of this Agreement). Any such determination requiring the resignation
of the Master Servicer or the Special Servicer, as applicable, shall be
evidenced by an Opinion of Counsel to such effect which shall be delivered to
the Trustee, with a copy to the Certificate Administrator. Unless applicable law
requires the Master Servicer's or the Special Servicer's (as the case may be)
resignation to be effective immediately, and the Opinion of Counsel delivered
pursuant to the prior sentence so states, no such resignation shall become
effective until the Trustee or other successor shall have assumed the
responsibilities and obligations of the resigning party in accordance with
Section 6.06 or Section 7.02 hereof; provided that, if no successor master
servicer or special servicer, as applicable, shall have been so appointed
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and have accepted appointment within 90 days after the Master Servicer or
Special Servicer, as the case may be, has given notice of such resignation, the
resigning Master Servicer or Special Servicer, as applicable, may petition any
court of competent jurisdiction for the appointment of a successor master
servicer or special servicer, as applicable.
In addition, the Master Servicer and the Special Servicer shall each
have the right to resign or assign its servicing rights at any other time
provided that (i) a willing successor thereto (including any such successor
proposed by the resigning party) acceptable to the Depositor has been found,
(ii) each of the Rating Agencies confirms in writing that the successor's
appointment will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates, (iii) the resigning party pays all costs and expenses in
connection with such transfer, and (iv) the successor accepts appointment prior
to the effectiveness of such resignation or assignment.
Neither the Master Servicer nor the Special Servicer shall be permitted
to resign except as contemplated above in this Section 6.04. Consistent with the
foregoing, none of the Master Servicer or the Special Servicer shall (except in
connection with any resignation thereby permitted pursuant to the prior
paragraph or as otherwise expressly provided herein, including the provisions of
Section 3.22 and/or Section 6.02) assign or transfer any of its rights, benefits
or privileges hereunder to any other Person.
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Master Servicer and the Special Servicer.
Upon reasonable request, the Master Servicer and the Special Servicer
shall each furnish the Depositor and the Trustee with its most recent publicly
available annual audited financial statements (or, if not available, the most
recent publicly available audited annual financial statements of its corporate
parent, on a consolidated basis) and such other information as is publicly
available regarding its business, affairs, property and condition, financial or
otherwise; provided that none of the Depositor, the Certificate Administrator or
the Trustee may disclose the contents of such financial statements or other
information to non-affiliated third parties (other than accountants, attorneys,
financial advisors and other representatives retained to help it evaluate such
financial statements or other information), unless it is required to do so under
applicable securities laws or is otherwise compelled to do so as a matter of
law. The Master Servicer and the Special Servicer may each affix to any such
information described in this Section 6.05 provided by it any disclaimer it
deems appropriate in its reasonable discretion. The Depositor may, but is not
obligated to, enforce the obligations of the Master Servicer and the Special
Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer or the
Special Servicer hereunder or exercise the rights of the Master Servicer or the
Special Servicer hereunder; provided, however, that none of the Master Servicer
or the Special Servicer shall be relieved of any of its obligations hereunder by
virtue of such performance by the Depositor or its designee. The Depositor shall
not have any responsibility or liability for any action or failure to act by the
Master Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
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SECTION 6.06. Designation of Special Servicer by the Controlling Class.
The Holder or Holders of Certificates representing more than 50% of the
Class Principal Balance of the Controlling Class may at any time and from time
to time designate a Person (other than the Trustee) to replace any existing
Special Servicer or any Special Servicer that has resigned or otherwise ceased
to serve as Special Servicer. Such Holder or Holders shall so designate a Person
to so serve as successor Special Servicer by the delivery to the Trustee, the
Certificate Administrator, the Master Servicer and the existing Special Servicer
of a written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, deliver to the Rating Agencies an executed Notice and
Acknowledgment in the form attached hereto as Exhibit I-1. The designated Person
shall become the Special Servicer on the date as of which the Trustee shall have
received: (i) written confirmation from each of the Rating Agencies that the
appointment of such Person will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates; (ii) an Acknowledgment of Proposed
Special Servicer in the form attached hereto as Exhibit I-2, executed by the
designated Person; and (iii) an Opinion of Counsel (which shall not be an
expense of the Trustee or the Trust) substantially to the effect that (A) the
designation of such Person to serve as Special Servicer is in compliance with
this Section 6.06, (B) the designated Person is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (C)
the Acknowledgment of Proposed Special Servicer has been duly authorized,
executed and delivered by the designated Person and (D) upon the execution and
delivery of the Acknowledgment of Proposed Special Servicer, the designated
Person shall be bound by the terms of this Agreement and, subject to customary
bankruptcy and insolvency exceptions and customary equity exceptions, that this
Agreement shall be enforceable against the designated Person in accordance with
its terms. Any existing Special Servicer shall be deemed to have been terminated
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided that (i) the terminated Special Servicer shall be entitled
to receive, in connection with its termination, payment out of the Certificate
Account of all of its accrued and unpaid Special Servicing Fees and
reimbursement from the successor Special Servicer of all outstanding Servicing
Advances made by the terminated Special Servicer and all unpaid Advance Interest
accrued on such outstanding Servicing Advances (in which case the successor
Special Servicer shall be deemed to have made such Servicing Advances at the
same time that the terminated Special Servicer had actually made them), (ii) the
resigning or terminated Special Servicer shall be entitled to any Workout Fees
thereafter received on any Mortgage Loans that were Corrected Mortgage Loans at
the time of the termination (but only if and to the extent permitted by Section
3.11(c)), and (iii) such Special Servicer shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such resignation or termination;
and provided, further, that the terminated Special Servicer shall continue to be
obligated to pay and entitled to receive all other amounts accrued or owing by
or to it under this Agreement on or prior to the effective date of such
termination. Such terminated Special Servicer shall cooperate with the Trustee
and the replacement Special Servicer in effecting the transfer of the terminated
Special Servicer's responsibilities and rights hereunder to its successor,
including the transfer within two Business Days to the replacement Special
Servicer for administration by it of all cash amounts that at the time are or
should have been credited by the Special Servicer to the REO Account or to any
Servicing Account or Reserve Account or should have been delivered to the Master
Servicer or that are thereafter received by or on behalf of it with respect to
any Mortgage Loan or REO Property. If the termination of the Special Servicer
was without cause, the reasonable out-of-pocket costs and expenses of any such
transfer shall in no event be paid out of the Trust Fund, and instead shall be
paid by the successor Special Servicer or
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the Holders of the Controlling Class that voted to remove the Special Servicer,
as such parties may agree. If the Controlling Class of Certificates are
Book-Entry Certificates, then the rights set forth in this Section 6.06 with
respect to replacing the Special Servicer may be exercised by the related
Certificate Owners holding beneficial ownership of Certificates representing
more than 50% of the Class Principal Balance of the Controlling Class.
SECTION 6.07. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as otherwise set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take any action (including
for this purpose, omitting to take a particular action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, be considered by other
Persons to violate the Servicing Standard, then the Master Servicer or the
Special Servicer may (but need not) seek the approval of the Certificateholders
to such action by delivering to the Certificate Administrator (with a copy to
the Trustee) a written notice that (a) states that it is delivered pursuant to
this Section 6.07, (b) identifies the Percentage Interest in each Class of
Certificates beneficially owned by the Master Servicer or the Special Servicer,
as the case may be, or by an Affiliate thereof and (c) describes in reasonable
detail the action that the Master Servicer or the Special Servicer, as the case
may be, proposes to take. The Certificate Administrator, upon receipt of such
notice, shall forward it to the Certificateholders (other than the Master
Servicer and its Affiliates or the Special Servicer and its Affiliates, as
appropriate), together with a request for approval by the Certificateholders of
each such proposed action. If at any time Certificateholders holding greater
than 50% of the Voting Rights of all Certificateholders (calculated without
regard to the Certificates beneficially owned by the Master Servicer or its
Affiliates or the Special Servicer or its Affiliates, as the case may be) shall
have consented in writing to the proposal described in the written notice, and
if the Master Servicer or the Special Servicer, as the case may be, shall act as
proposed in the written notice, such action shall be deemed to comply with the
Servicing Standard. The Certificate Administrator shall be entitled to
reimbursement from the Master Servicer or the Special Servicer, as applicable,
for the reasonable expenses of the Certificate Administrator incurred pursuant
to this paragraph. It is not the intent of the foregoing provision that the
Master Servicer or the Special Servicer be permitted to invoke the procedure set
forth herein with respect to routine servicing matters arising hereunder, but
rather in the case of unusual circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Collection Account any amount required to be so deposited under this
Agreement, which failure continues unremedied for one Business Day
following the date on which such deposit was first required to be made;
or
(ii) any failure by the Special Servicer to deposit into the REO
Account or the Collection Account, or to remit to the Master Servicer
for deposit into the Collection Account, any amount required to be so
deposited or remitted under this Agreement, which failure continues
unremedied for one Business Day following the date on which such
deposit or remittance, as the case may be, was first required to be
made; or
(iii) any failure by the Master Servicer to remit to the
Certificate Administrator for deposit into the Distribution Account, on
any P&I Advance Date, the full amount of P&I Advances required to be
made on such date or, on any Master Servicer Remittance Date, the full
amount of the Master Servicer Remittance Amount required to be remitted
on such date, which failure continues unremedied until 11:00 a.m. (New
York City time) on the relevant Distribution Date; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of three Business Days following
the date on which notice shall have been given to the Master Servicer
by the Trustee as provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely make (or request
the Master Servicer to make) any Servicing Advance required to be made
by it hereunder, which Servicing Advance remains unmade for a period of
three Business Days following the date on which notice has been given
to the Special Servicer by the Trustee as provided in Section 3.11(f);
or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other
of the covenants or agreements on the part of the Master Servicer or
the Special Servicer, as the case may be, contained in this Agreement,
which failure continues unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to the
Master Servicer or the Special Servicer, as the case may be, (with a
copy to each other party hereto) by the Holders of Certificates
entitled to at least 25% of the Voting Rights, provided, however, that
with respect to any such breach which is not curable within
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such 30-day period, the Master Servicer or the Special Servicer, as the
case may be, shall have an additional cure period of 30 days to effect
such cure so long as the Master Servicer or the Special Servicer, as
the case may be, has commenced to cure such failure within the initial
30-day period and has provided the Trustee with an Officer's
Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(vii) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement
that materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 60
days after the date on which notice of such breach, requiring the same
to be remedied, shall have been given to the Master Servicer or the
Special Servicer, as the case may be, by any other party hereto or to
the Master Servicer or the Special Servicer, as the case may be, (with
a copy to each other party hereto) by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(viii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Master Servicer or the Special Servicer and such
decree or order shall have remained in force undischarged, undismissed
or unstayed for a period of 60 days; or
(ix) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to it or of or relating to all or substantially all of its
property; or
(x) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(xi) the Trustee shall have received written notice from either
Rating Agency that, the continuation of the Master Servicer or the
Special Servicer in such capacity would result or has resulted in a
qualification, downgrade or withdrawal of any rating assigned thereby
to any Class of Certificates; or
(xii) the Master Servicer or the Special Servicer is no longer
rated by Fitch at least CMS3 or CSS3, as applicable, and the ratings of
any of the Certificates by Fitch are downgraded, qualified or
withdrawn, or placed on "negative credit watch", in connection with
such removal.
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When a single entity acts as Master Servicer and Special Servicer,
or in any two of the foregoing capacities, an Event of Default (other than an
event described in clauses (xi) and (xii) above) in one capacity shall
constitute an Event of Default in both such capacities.
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor and Trustee each may, and at the written direction of the Holders of
Certificates entitled to not less than 51% of the Voting Rights or if the
relevant Event of Default is one described in any of clauses (iii) and (viii)
through (xii) of Section 7.01(a), the Trustee shall (subject to applicable
bankruptcy or insolvency law in the case of clauses (viii) through (x) of
Section 7.01(a)), terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Trust Fund (other than as a Holder of any
Certificate). From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Each of the Master
Servicer and the Special Servicer agrees that, if it is terminated pursuant to
this Section 7.01(b), it shall promptly (and in any event no later than ten
Business Days subsequent to its receipt of the notice of termination) provide
the Trustee or its designee with all documents and records requested thereby to
enable the Trustee to assume the Master Servicer's or Special Servicer's, as the
case may be, functions hereunder, and shall otherwise cooperate with the Trustee
in effecting the termination of the Master Servicer's or Special Servicer's, as
the case may be, responsibilities and rights hereunder, including the transfer
within two Business Days to the Trustee or its designee for administration by it
of all cash amounts that at the time are or should have been credited by the
Master Servicer to the Collection Account, the Distribution Account or any
Servicing Account or Reserve Account held by it (if it is the Defaulting Party)
or by the Special Servicer to the REO Account, the Collection Account or any
Servicing Account or Reserve Account held by it (if it is the Defaulting Party)
or that are thereafter received by or on behalf of it with respect to any
Mortgage Loan or REO Property (provided, however, that the Master Servicer and
the Special Servicer each shall, if terminated pursuant to this Section 7.01(b),
continue to be obligated to pay and entitled to receive all amounts accrued or
owing by or to it under this Agreement on or prior to the date of such
termination, whether in respect of Advances or otherwise, and it and its
directors, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination). Any costs or
expenses (including those of any other party hereto) incurred in connection with
any actions to be taken by the Master Servicer or Special Servicer pursuant to
this paragraph shall be borne by the Master Servicer or Special Servicer, as the
case may be (and, in the case of the Trustee's costs and expenses, if not paid
within a reasonable time, shall be borne by the Trust out of the Collection
Account).
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SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to the first paragraph of Section 6.04 or receives a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to Section
6.06, be the successor in all respects to the Master Servicer or the Special
Servicer, as the case may be, in its capacity as such under this Agreement and
the transactions set forth or provided for herein and shall be subject to all
the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer or the Special Servicer, as the case
may be, by the terms and provisions hereof, including, if the Master Servicer is
the resigning or terminated party, the Master Servicer's obligation to make P&I
Advances; provided, however, that any failure to perform such duties or
responsibilities caused by the Master Servicer's or the Special Servicer's, as
the case may be, failure to cooperate or to provide information or monies as
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation which the resigning or
terminated party would have been entitled to for future services rendered if the
resigning or terminated party had continued to act hereunder. Notwithstanding
the above, if it is unwilling to so act, the Trustee may (and, if it is unable
to so act, or if the Trustee is not approved as an acceptable master servicer or
special servicer, as the case may be, by each Rating Agency, or if the Holders
of Certificates entitled to 51% of all the Voting Rights so request in writing),
the Trustee shall, subject to Section 6.06 (if applicable), promptly appoint, or
petition a court of competent jurisdiction to appoint, any established and
qualified institution with a net worth of at least $10 million as the successor
to the Master Servicer or the Special Servicer, as the case may be, hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer or the Special Servicer, as the case may be, hereunder;
provided, however, that such appointment does not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency). No appointment of a successor to the
Master Servicer or the Special Servicer hereunder shall be effective until the
assumption by such successor of all its responsibilities, duties and liabilities
hereunder, and pending such appointment and assumption, the Trustee shall act in
such capacity as hereinabove provided. In connection with any such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 6.04 or 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to
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Section 6.06, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of (i) 60 days after the occurrence
of any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default; provided, that an Event of
Default under clause (i), clause (ii), clause (iii), clause (xi) or clause (xii)
of Section 7.01(a) may be waived only by all of the Certificateholders; and
provided, further, that if the Trustee was required to expend any monies in
connection with any Event of Default, then such Event of Default may not be
waived unless and until those monies have been reimbursed to the Trustee (with
interest) by the Defaulting Party. Upon any such waiver of an Event of Default,
such Event of Default shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if registered in the name
of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right (exercisable subject to
Section 8.01(a)), in its own name and as trustee of an express trust, to take
all actions now or hereafter existing at law, in equity or by statute to enforce
its rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
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ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee or the Certificate Administrator, as applicable, which are specifically
required to be furnished pursuant to any provision of this Agreement (other than
the Mortgage Files, the review of which is specifically governed by the terms of
Article II), the Trustee or the Certificate Administrator, as applicable, shall
examine them to determine whether they conform to the requirements of this
Agreement. If any such instrument is found not to conform to the requirements of
this Agreement in a material manner, the Trustee or the Certificate
Administrator, as applicable, shall take such action as it deems appropriate to
have the instrument corrected. The Trustee or the Certificate Administrator, as
applicable, shall not be responsible or liable for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Depositor, the Master Servicer, the Special
Servicer, any actual or prospective Certificateholder or Certificate Owner or
either Rating Agency, and accepted by the Trustee in good faith, pursuant to
this Agreement.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement.
(ii) The Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
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(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% (or, as to any particular matter, any higher percentage as
may be specifically provided for hereunder) of the Voting Rights
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement.
(iv) The Trustee shall not be required to take action with respect
to, or be deemed to have notice or knowledge of, any default or Event
of Default or the Master Servicer's failure to deliver any monies,
including P&I Advances, or to provide any report, certificate or
statement, to the Trustee when required pursuant to this Agreement)
unless a Responsible Officer of the Trustee shall have received written
notice or otherwise have actual knowledge thereof. Otherwise, the
Trustee may conclusively assume that there is no such default or Event
of Default.
(v) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty, except as expressly provided in Section 2.01(c) or Section
2.01(e) or in its capacity as successor Master Servicer or successor
Special Servicer, (A) to cause any recording, filing, or depositing of
this Agreement or any agreement referred to herein or any financing
statement or continuation statement evidencing a security interest, or
to cause the maintenance of any such recording or filing or depositing
or to any rerecording, refiling or redepositing of any thereof, (B) to
cause the maintenance of any insurance, (C) to confirm or verify the
truth, accuracy or contents of any reports or certificates of the
Master Servicer, the Special Servicer, any actual or prospective or any
Certificateholder or Certificate Owner or either Rating Agency,
delivered to the Trustee pursuant to this Agreement reasonably believed
by the Trustee to be genuine and without error and to have been signed
or presented by the proper party or parties, (D) subject to Section
10.01(f), to see to the payment or discharge of any tax levied against
any part of the Trust Fund other than from Funds available in the
Collection Account or the Distribution Account, and (E) to see to the
payment of any assessment or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available in
the Collection Account or Distribution Account (provided that such
assessment, charge, lien or encumbrance did not arise out of the
Trustee's willful misfeasance, bad faith or negligence).
(vi) For as long as the Person that serves as Trustee hereunder
also serves as Custodian, Certificate Registrar, Certificate
Administrator and/or Tax Administrator, the protections, immunities and
indemnities afforded to the Trustee hereunder shall also be afforded to
such Person in its capacity as Custodian, Certificate Registrar,
Certificate Administrator and/or Tax Administrator, as the case may be.
(vii) If the entity that is acting as Custodian, Certificate
Registrar, Certificate Administrator, and/or Tax Administrator is the
same entity that is acting as the Trustee hereunder, then no notices
shall be required to be delivered by such entity to the Trustee, or by
the Trustee to such entity, pursuant to the terms of this Agreement.
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SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and without error and to have been signed or presented by
the proper party or parties;
(ii) the Trustee may consult with counsel and any written advice
or opinion of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, unless such
Certificateholders shall have provided to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby satisfactory to the Trustee in its
reasonable discretion; the Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it; provided,
however, that nothing contained herein shall relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not
been waived or cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill
in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) neither the Trustee nor any Fiscal Agent appointed thereby
shall be personally liable for any action reasonably taken, suffered or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(v) prior to the occurrence of an Event of Default and after the
waiver or curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by
Holders of Certificates entitled to at least 25% of the Voting Rights;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Agreement, the Trustee may require an
indemnity satisfactory to the Trustee in its reasonable discretion,
against such expense or liability as a condition to taking any such
action;
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(vi) except as contemplated by Section 8.06 and/or Section 8.14,
the Trustee shall not be required to give any bond or surety in respect
of the execution of the trusts created hereby or the powers granted
hereunder;
(vii) the Trustee may execute any of the trusts or powers vested
in it by this Agreement or perform any of its duties hereunder either
directly or by or through agents or attorneys-in-fact, provided that
the use of agents or attorneys-in-fact shall not be deemed to relieve
the Trustee of any of its duties and obligations hereunder (except as
expressly set forth herein);
(viii) neither the Trustee nor any Fiscal Agent appointed thereby
shall be responsible for any act or omission of the Master Servicer or
the Special Servicer (unless the Trustee is acting as Master Servicer
or Special Servicer, as the case may be) or of the Depositor.
(ix) neither the Trustee nor the Certificate Registrar shall have
any obligation or duty to monitor, determine or inquire as to
compliance with any restriction on transfer imposed under Article V
under this Agreement or under applicable law with respect to any
transfer of any Certificate or any interest therein, other than to
require delivery of the certification(s) and/or Opinions of Counsel
described in said Article applicable with respect to changes in
registration or record ownership of Certificates in the Certificate
Register and to examine the same to determine substantial compliance
with the express requirements of this Agreement; and the Trustee and
Certificate Registrar shall have no liability for transfers, including
transfers made through the book-entry facilities of the Depository or
between or among Depository Participants or beneficial owners of the
Certificates, made in violation of applicable restrictions except for
its failure to perform its express duties in connection with changes in
registration or record ownership in the Certificate Register.
SECTION 8.03. Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than
the statements attributed to, and the representations and warranties of, the
Trustee and/or any Fiscal Agent in Article II, and the signature of the Trustee
set forth on each outstanding Certificate) shall not be taken as the statements
of the Trustee or any Fiscal Agent, and neither the Trustee nor any Fiscal Agent
assumes any responsibility for their correctness. Neither the Trustee nor any
Fiscal Agent makes any representation as to the validity or sufficiency of this
Agreement (except as regards the enforceability of this Agreement against it) or
of any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. Neither the Trustee nor
any Fiscal Agent shall be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust, or any funds
deposited in or withdrawn from the Collection Account or any other account by or
on behalf of the Depositor, the Master Servicer or the Special Servicer (in each
case, unless the Trustee is acting in such capacity). Neither the Trustee nor
any Fiscal Agent shall be responsible for the legality or validity of this
Agreement (other than insofar as it relates to the obligations of the Trustee or
such Fiscal Agent, as the case may be, hereunder) or the validity, priority,
perfection or
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sufficiency of any security, lien or security interest granted to it hereunder
or the filing of any financing statements or continuation statements, except to
the extent set forth in Section 2.01(c) and Section 2.01(e) or to the extent the
Trustee is acting as Master Servicer or Special Servicer and the Master Servicer
or Special Servicer, as the case may be, would be so responsible hereunder. The
Trustee shall not be required to record this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee (in its individual or any other capacity), any Fiscal
Agent or any Affiliate of either of them may become the owner or pledgee of
Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
such Fiscal Agent or an Affiliate of either of them, as the case may be.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and
by Trustee and Fiscal Agent.
(a) On each Distribution Date, the Certificate Administrator shall
withdraw from the Distribution Account, out of general collections on the
Mortgage Loans and REO Properties on deposit therein, prior to any distributions
to be made therefrom to Certificateholders on such date, and pay to the Trustee
all Trustee's Fees earned in respect of the Mortgage Loans and any REO Mortgage
Loans for such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates, as compensation for all services rendered by the
Trustee in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties of the Trustee hereunder. As to each
Mortgage Loan and REO Mortgage Loan, the Trustee's Fee payable in respect of any
Distribution Date shall accrue at the Trustee's Fee Rate on the Stated Principal
Balance of each Mortgage Loan or REO Mortgage Loan, as the case may be,
outstanding as of the Due Date in the Collection Period most recently ended
prior to such Distribution Date (that is, without any reductions in such Stated
Principal Balance that would occur on such Distribution Date) and for the same
number of days respecting which any related interest payment due on such
Mortgage Loan or deemed to be due on such REO Mortgage Loan, as the case may be,
is computed under the terms of the related Mortgage Note (as such terms may be
changed or modified at any time following the Closing Date) and applicable law.
As to each Mortgage Loan and REO Mortgage Loan, the Trustee's Fee shall be
payable whether or not interest is actually collected on such Mortgage Loan or
REO Mortgage Loan, as the case may be. The Trustee's Fees (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) shall constitute the Trustee's sole compensation for such
services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent of
the Trustee shall be entitled to be indemnified and held harmless out of Trust
Fund for and against any loss, liability, claim or expense (including costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
this Agreement, the Certificates, the Mortgage Loans (unless it incurs any such
expense or liability in the capacity of successor Master Servicer or Special
Servicer, in which case such expense or liability will be reimbursable thereto
in the same manner as it would be for any other Master Servicer or Special
Servicer, as the case may be) or any act or omission of the Trustee relating to
the exercise and performance of any of the powers and duties of the Trustee
hereunder; provided, however, that neither the Trustee nor any of the other
above specified Persons shall be entitled to
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indemnification pursuant to this Section 8.05(b) for (1) allocable overhead,
such as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
(2) any expense or liability specifically required to be borne thereby pursuant
to the terms hereof or (3) any loss, liability, claim or expense incurred by
reason of any breach on the part of the Trustee of any of its representations,
warranties or covenants contained herein or any willful misfeasance, bad faith
or negligence in the performance of, or reckless disregard of, the Trustee's
obligations and duties hereunder.
(c) Each of the Master Servicer and the Special Servicer shall
indemnify the Trustee and any Fiscal Agent for and hold each of them harmless
against any loss, liability, claim or expense that is a result of the Master
Servicer's or the Special Servicer's, as the case may be, negligent acts or
omissions in connection with this Agreement, including the negligent use by the
Master Servicer or the Special Servicer, as the case may be, of any powers of
attorney delivered to it by the Trustee pursuant to the provisions hereof and
the Mortgage Loans serviced by the Master Servicer or the Special Servicer, as
the case may be; provided, however, that, if the Trustee has been reimbursed for
such loss, liability, claim or expense pursuant to Section 8.05(b), or any
Fiscal Agent has been reimbursed for such loss, liability, claim or expense
pursuant to Section 8.13, then the indemnity in favor of such Person provided
for in this Section 8.05(c) with respect to such loss, liability, claim or
expense shall be for the benefit of the Trust.
(d) Each of the Trustee and any Fiscal Agent shall indemnify the
Master Servicer and the Special Servicer for and hold each of them harmless
against any loss, liability, claim or expense that is a result of the Trustee's
or such Fiscal Agent's, as the case may be, negligent acts or omissions in
connection with this Agreement; provided, however, that if the Master Servicer
or the Special Servicer has been reimbursed for such loss, liability, claim or
expense pursuant to Section 6.03, then the indemnity in favor of such Person
provided for in this Section 8.05(d) with respect to such loss, liability, claim
or expense shall be for the benefit of the Trust.
(e) This Section 8.05 shall survive the termination of this
Agreement or the resignation or removal of the Trustee, any Fiscal Agent, the
Master Servicer or the Special Servicer as regards rights and obligations prior
to such termination, resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, bank,
trust company or association organized and doing business under the laws of the
United States of America or any State thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation, bank, trust company or
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
corporation, bank, trust company or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In addition, the Trustee shall at all times meet the requirements
of Section 26(a)(1) of the Investment Company Act. Furthermore, the Trustee
shall at all times maintain a long-term unsecured debt rating of no less than
"Aa3" from Moody's and "AA" from Fitch (or, in the case of either Rating Agency,
such lower rating as will not result in an Adverse Rating Event with respect to
any Class of
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Rated Certificates (as confirmed in writing to the Trustee and the Depositor by
such Rating Agency)); provided that the Trustee shall not cease to be eligible
to serve as such based on a failure to satisfy such rating requirements so long
as either: (i) the Trustee maintains a long-term unsecured debt rating of no
less than "Baa2" from Moody's and "BBB" from Fitch (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by such Rating Agency)) and a Fiscal Agent meeting the
requirements of Section 8.13 has been appointed by the Trustee and is then
currently serving in such capacity; or (ii) the Trustee maintains a long-term
unsecured debt rating of no less than "A1" from Moody's and "A" from Fitch (or,
in the case of either Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee and the Depositor by such Rating Agency))
and an Advance Security Arrangement meeting the requirements of Section 8.14 has
been established by the Trustee and is then currently being maintained. In case
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07. The corporation, bank,
trust company or association serving as Trustee may have normal banking and
trust relationships with the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer and their respective Affiliates; provided,
however, that none of (i) the Depositor, (ii) any Person involved in the
organization or operation of the Depositor or the Trust, (iii) any Mortgage Loan
Seller or (iv) any Affiliate of any of them, may be the Trustee hereunder.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and all the Certificateholders. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor trustee meeting the eligibility requirements of Section 8.06 by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument shall
be delivered to other parties hereto and to the Certificateholders by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's continuing to act in such capacity would (as
confirmed in writing to the Depositor by either Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates), then the
Depositor may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument shall be
delivered to the other parties hereto and to the Certificateholders by the
Depositor.
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(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee so removed
and one complete set to the successor so appointed. All expenses incurred by the
Trustee in connection with its transfer of the Mortgages Files to a successor
trustee following the removal of the Trustee without cause pursuant to this
Section 8.07(c), shall be reimbursed to the removed Trustee within 30 days of
demand therefor, such reimbursement to be made by the Certificateholders that
terminated the Trustee. A copy of such instrument shall be delivered to the
other parties hereto and to the remaining Certificateholders by the successor so
appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until (i) acceptance of appointment by the successor
trustee as provided in Section 8.08 and (ii) if neither the successor trustee
nor any Fiscal Agent appointed by it has a long-term unsecured debt rating of at
least "Aa3" from Moody's and "AA" from Fitch, the Trustee and the Depositor have
received written confirmation from each Rating Agency that has not so assigned
such a rating, to the effect that the appointment of such successor trustee
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates. Notwithstanding anything herein to the contrary, any resignation
or removal of any Trustee shall also result in the resignation or removal of the
Tax Administrator for such Trustee.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a Custodian, which Custodian shall become the agent of the
successor trustee), and the Depositor, the Master Servicer, the Special Servicer
and the predecessor trustee shall execute and deliver such instruments and do
such other things as may reasonably be required to more fully and certainly vest
and confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
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SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or
with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such entity shall be eligible under
the provisions of Section 8.06, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06, and no notice to Holders of Certificates
of the appointment of co-trustee(s) or separate trustee(s) shall be required
under Section 8.08.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or when acting as Master Servicer, Special Servicer, Certificate
Administrator or Tax Administrator hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
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(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint
at the Trustee's own expense one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee; provided that if the Custodian is
an Affiliate of the Trustee such consent of the Master Servicer need not be
obtained and the Trustee shall inform the Master Servicer of such appointment.
Each Custodian shall be a depository institution supervised and regulated by a
federal or state banking authority, shall have combined capital and surplus of
at least $10,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File, shall not be the Depositor, any Mortgage Loan
Seller or any Affiliate of the Depositor or any Mortgage Loan Seller, and shall
have in place a fidelity bond and errors and omissions policy, each in such form
and amount as is customarily required of custodians acting on behalf of Freddie
Mac or Fannie Mae. Each Custodian shall be subject to the same obligations,
standard of care, protection and indemnities as would be imposed on, or would
protect, the Trustee hereunder in connection with the retention of Mortgage
Files directly by the Trustee, and the provisions of Sections 8.01, 8.02, 8.03,
8.04, 8.05(b), 8.05(c), 8.05(d) and 8.05(e) shall apply to the Custodian to the
same extent as such Sections apply to the Trustee. The appointment of one or
more Custodians shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of any Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee and the Certificate Administrator shall each
afford to the Depositor, the Underwriters, the Master Servicer, the Special
Servicer, the Controlling Class Representative and each Rating Agency and to the
OTS, the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, access to
any documentation regarding the Mortgage Loans or the other assets of the Trust
Fund that are in its possession or within its control. Such access shall be
afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Trustee or the Certificate
Administrator, as the case may be, designated by it.
(b) Certificate Administrator shall maintain at its offices or the
offices of a Custodian and, upon reasonable prior written request and during
normal business hours, shall make available, or cause to be made available, for
review by the Depositor, the Underwriters, the Mortgage Loan Sellers, the Rating
Agencies, the Controlling Class Representative and, subject to the succeeding
paragraph, any Certificateholder, Certificate Owner or Person identified to the
Certificate Administrator as a prospective Transferee of a Certificate or an
interest therein, originals
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and/or copies of the following items (to the extent such items were prepared by
or delivered to the Certificate Administrator): (i) the Prospectus, the
Memorandum and any other disclosure document relating to the Certificates, in
the form most recently provided to the Certificate Administrator by the
Depositor or by any Person designated by the Depositor; (ii) this Agreement,
each Sub-Servicing Agreement delivered to the Certificate Administrator since
the Closing Date and any amendments and exhibits hereto or thereto; (iii) all
Distribution Date Statements and any files and reports comprising the CMSA
Investor Reporting Package actually delivered or otherwise made available to
Certificateholders pursuant to Section 4.02(a) since the Closing Date; (iv) all
Annual Performance Certifications delivered by the Master Servicer and the
Special Servicer, respectively, to the Certificate Administrator since the
Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the
Master Servicer and the Special Servicer, respectively, to the Certificate
Administrator since the Closing Date; (vi) the most recent inspection report
prepared by the Master Servicer or the Special Servicer and delivered to the
Certificate Administrator in respect of each Mortgaged Property pursuant to
Section 3.12(a); (vii) the most recent quarterly and annual operating statement
and rent roll of each related Mortgaged Property and financial statements of the
related Borrower collected by the Master Servicer or the Special Servicer and
delivered to the Certificate Administrator pursuant to Section 3.12(b); (viii)
any and all notices and reports delivered to the Certificate Administrator with
respect to any Mortgaged Property as to which the environmental testing
contemplated by Section 3.09(c) revealed that neither of the conditions set
forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (ix)
all files and reports comprising the CMSA Investor Reporting Package delivered
to the Certificate Administrator since the Closing Date pursuant to Sections
4.02(b); (x) each of the Mortgage Files, including any and all modifications,
waivers and amendments of the terms of a Mortgage Loan entered into or consented
to by the Master Servicer or the Special Servicer and delivered to the Trustee
or any Custodian pursuant to Section 3.20; (xi) the most recent Appraisal for
each Mortgage Loan and REO Property that has been delivered to the Certificate
Administrator (all Appraisals of Mortgaged Properties and/or REO Properties
shall be delivered to the Certificate Administrator by the Master Servicer or
Special Servicer, as applicable, promptly following their having been obtained
or formulated); (xii) any and all Officer's Certificates and other evidence
delivered to or by the Trustee to support its, the Master Servicer's, the
Special Servicer's or any Fiscal Agent's, as the case may be, determination that
any Advance was (or, if made, would be) a Nonrecoverable Advance; and (xiii) any
other information that may be necessary to satisfy the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act. The Certificate
Administrator shall provide, or cause to be provided, copies of any and all of
the foregoing items upon request of any of the parties set forth in the previous
sentence; however, except in the case of the Rating Agencies, the Certificate
Administrator, the Certificate Administrator or any Custodian shall be permitted
to require payment of a sum sufficient to cover the reasonable costs and
expenses of providing such copies.
In connection with providing, or causing to be provided, access to
or copies of the items described in the preceding paragraph pursuant to this
Section 8.12(b), the Certificate Administrator or Custodian, as the case may be,
shall require: (a) in the case of Certificate Owners, a written confirmation
executed by the requesting Person substantially in the form of Exhibit L-1
hereto (or such other form as may be reasonably acceptable to the Certificate
Administrator or Custodian, as the case may be) generally to the effect that
such Person is a beneficial holder of Book-Entry Certificates and, subject to
the last sentence of this paragraph, will keep such information confidential
(except that such Certificate Owner may provide such information to its
auditors, legal counsel and regulators and to any other Person that holds or is
contemplating the
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purchase of any Certificate or interest therein (provided that such other Person
confirms in writing such ownership interest or prospective ownership interest
and agrees to keep such information confidential)); and (b) in the case of a
prospective purchaser of a Certificate or an interest therein, confirmation
executed by the requesting Person substantially in the form of Exhibit L-2
hereto (or such other form as may be reasonably acceptable to the Certificate
Administrator or Custodian, as the case may be) generally to the effect that
such Person is a prospective purchaser of a Certificate or an interest therein,
is requesting the information for use in evaluating a possible investment in
Certificates and, subject to the last sentence of this paragraph, will otherwise
keep such information confidential. The Holders of the Certificates, by their
acceptance thereof, will be deemed to have agreed, subject to the last sentence
of this paragraph, to keep such information confidential (except that any Holder
may provide any such information obtained by it to its auditors, legal counsel
and regulators and to any other Person that holds or is contemplating the
purchase of any Certificate or interest therein (provided that such other Person
confirms in writing such ownership interest or prospective ownership interest
and agrees to keep such information confidential)). Notwithstanding the
foregoing, no Certificateholder, Certificate Owner or prospective
Certificateholder or Certificate Owner need keep confidential any information
received from the Certificate Administrator or Custodian, as the case may be,
pursuant to this Section 8.12(b) that has previously been filed with the
Commission, and the Certificate Administrator or Custodian, as the case may be,
shall not require either of the certifications contemplated by the second
preceding sentence in connection with providing any information pursuant to this
Section 8.12(b) that has previously been filed with the Commission.
(c) None of the Trustee, the Certificate Administrator or the
Master Servicer shall be liable for providing or disseminating information in
accordance with the terms of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Moody's and "AA" from Fitch (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)). Any Person so appointed by the Trustee pursuant to this
Section 8.13(a) shall become the Fiscal Agent on the date as of which the
Trustee and the Depositor have received: (i) if the long-term unsecured debt of
the designated Person is not rated as least "Aa3" from Moody's and "AA" from
Fitch, written confirmation from each Rating Agency that the appointment of such
designated Person will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates; (ii) a written agreement whereby the designated
Person is appointed as, and agrees to assume and perform the duties of, Fiscal
Agent hereunder, executed by such designated Person and the Trustee (such
agreement, the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which
shall be paid for by the designated Person or the Trustee) substantially to the
effect that (A) the appointment of the designated Person to serve as Fiscal
Agent is in compliance with this Section 8.13, (B) the designated Person is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (C) the related Fiscal Agent Agreement has
been duly authorized, executed and delivered by the designated
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Person and (D) upon execution and delivery of the related Fiscal Agent
Agreement, the designated Person shall be bound by the terms of this Agreement
and, subject to customary bankruptcy and insolvency exceptions and customary
equity exceptions, that this Agreement shall be enforceable against the
designated Person in accordance with its terms. Any Person that acts as Fiscal
Agent shall, for so long as it so acts, be deemed a party to this Agreement for
all purposes hereof. Pursuant to the related Fiscal Agent Agreement, each Fiscal
Agent, if any, shall make representations and warranties with respect to itself
that are comparable to those made by the Trustee pursuant to Section 2.07.
Notwithstanding anything contained in this Agreement to the contrary, any Fiscal
Agent shall be entitled to all limitations on liability, rights of reimbursement
and indemnities to which the Trustee is entitled hereunder (including pursuant
to Sections 8.05(b) and 8.05(c)) as if it were the Trustee.
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor Master
Servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent (if any) shall make such Advance when and as required
by the terms of this Agreement on behalf the Trustee as if such Fiscal Agent
were the Trustee hereunder. To the extent that the Fiscal Agent (if any) makes
an Advance pursuant to this Section 8.13 or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities to which the Trustee is entitled
hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it were the
Trustee, except that all fees and expenses of any Fiscal Agent (other than
interest owed to such Fiscal Agent in respect of unreimbursed Advances) incurred
by such Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor such Fiscal
Agent shall be entitled to reimbursement therefor from any of the Trust, the
Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this Section
8.13 or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. Any Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that any Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent in accordance with this Section 8.13(a) shall belong to
the successor Trustee insofar as such appointment is necessary for such
successor Trustee to satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto and
the Certificateholders in writing of the appointment, resignation or removal of
any Fiscal Agent.
SECTION 8.14. Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may, at is own expense with the
approval of the Depositor, arrange for the pledging of collateral, the
establishment of a reserve fund or the delivery of a letter of credit, surety
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bond or other comparable instrument or for any other security or financial
arrangement (any or all of the foregoing, individually and collectively, an
"Advance Security Arrangement") for purposes of supporting its back-up advancing
obligations hereunder; provided that any Advance Security Arrangement shall be
in such form and amount, and shall be maintained in such manner, as (i) would
permit the Trustee to act in such capacity without an Adverse Rating Event in
respect of any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by each Rating Agency) and (ii) would not result in an
Adverse REMIC Event (as evidenced by an Opinion of Counsel addressed and
delivered to the Trustee, the Depositor and the Tax Administrator). The Trustee
may terminate any Advance Security Arrangement established by it only if and
when (i) the existence of such Advance Security Arrangement is no longer
necessary for the Trustee to satisfy the eligibility requirements of Section
8.06 or (ii) when such Trustee resigns or is removed as Trustee hereunder.
SECTION 8.15. Filings with the Securities and Exchange Commission.
(a) With respect to the Trust's fiscal year 2000 (and, if as of
the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository), the Certificate
Administrator shall:
(i) during such fiscal year, in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable
"no-action letters" issued by the Commission, prepare for filing,
execute and properly file with the Commission monthly, with respect to
the Trust, a Current Report on Form 8-K with copies of the Distribution
Date Statements and the Unrestricted Servicer Reports attached as
exhibits;
(ii) during such fiscal year, (A) monitor for and promptly notify
the Depositor of the occurrence or existence of any of the matters
identified in Section 11.09(a) and/or Section 8.15(b) (in each case to
the extent that a Responsible Officer of the Certificate Administrator
has actual knowledge thereof), (B) cooperate with the Depositor in
obtaining all necessary information in order to enable the Depositor to
prepare a Current Report on Form 8-K reporting any such matter in
accordance with the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission,
and (C) execute and promptly file with the Commission any such Current
Report on Form 8-K prepared by or on behalf of the Depositor and
delivered to the Trustee; and
(iii) within 90 days following the end of such fiscal year,
prepare, execute and properly file with the Commission, with respect to
the Trust, an Annual Report on Form 10-K which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission;
provided that (x) the Certificate Administrator shall not have any
responsibility to file any items (other than those generated by it) that have
not been received in a format suitable for (or readily convertible to a format
suitable for) electronic filing via the EDGAR system (including "ASCII,"
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"Microsoft Word," "Microsoft Excel," or another format reasonably acceptable to
the Certificate Administrator) and shall not have any responsibility to convert
any such items (other than those generated by it) to such format and (y) the
Depositor shall be responsible for preparing, executing and filing (via the
EDGAR system within 15 days following the Closing Date) a Current Report on Form
8-K reporting the establishment of the Trust and whereby this Agreement is filed
as an exhibit. Each of the other parties to this Agreement shall deliver to the
Certificate Administrator in the format required for (or readily convertible to
a format suitable for) electronic filing via the EDGAR system (including
"ASCII," "Microsoft Word," "Microsoft Excel," or another format reasonably
acceptable to the Certificate Administrator) any and all items (including, in
the case of the Master Servicer and the Special Servicer, Unrestricted Servicer
Reports) contemplated to be filed with the Commission pursuant to this Section
8.15(a).
(b) At all times during the Trust's fiscal year 2000 (and, if as
of the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, at all times during
such other fiscal year), the Certificate Administrator shall monitor for and
promptly notify the Depositor of the occurrence or existence of any of the
following matters of which a Responsible Officer of the Certificate
Administrator has actual knowledge:
(i) any failure of the Certificate Administrator to make any
monthly distributions to the Holders of any Class of Certificates,
which failure is not otherwise reflected in the Certificateholder
Reports filed with the Commission or has not otherwise been reported to
the Depositor pursuant to any other Section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage
Loan or an REO Property, which acquisition or disposition has not
otherwise been reflected in the Certificateholder Reports filed with
the Commission or has not otherwise been reported to the Depositor
pursuant to any other Section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments,
Mortgage Loans and REO Properties), other than in the normal course of
business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust
(or any party to this Agreement on behalf of the Trust) is a party or
of which any property included in the Trust Fund is subject, or any
threat by a governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in
respect of or pertaining to the Trust or any party to this Agreement,
or any actions by or on behalf of the Trust or any party to this
Agreement indicating its bankruptcy, insolvency or inability to pay its
obligations; and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Certificateholder Reports
filed with the Commission;
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provided that (x) the actual knowledge of a Responsible Officer of either the
Trustee or the Certificate Administrator of any material legal proceedings of
which property included in the Trust Fund is subject or of any material legal
proceedings threatened by a governmental authority is limited to circumstances
where it would be reasonable for the Certificate Administrator to identify such
property as an asset of, or as securing an asset of, the Trust or such
threatened proceedings as concerning the Trust and (y) no Responsible Officer of
the Certificate Administrator or the Trustee shall be deemed to have actual
knowledge of the matters described in clauses (vi) and (vii) of this Section
8.15(b) unless such Responsible Officer was notified in writing.
(c) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 2000), the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Certificate Administrator shall, in accordance
with the Exchange Act and the rules and regulations promulgated thereunder,
timely file a Form 15 with respect to the Trust.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the parties hereto (other than the
obligations of the Certificate Administrator to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Certificate Administrator and required hereunder to be so paid on
the Distribution Date following the earlier to occur of: (i) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders of all
Mortgage Loans and each REO Property remaining in the Trust Fund at a price (the
"Termination Price") equal to (A) the aggregate Purchase Price of all the
Mortgage Loans remaining in the Trust Fund (exclusive of any REO Mortgage
Loan(s)), plus (B) the appraised value of each REO Property, if any, included in
the Trust Fund, such appraisal to be conducted by a Qualified Appraiser selected
by the Special Servicer and approved by the Trustee and the Master Servicer,
minus (C) if the purchaser is the Master Servicer or the Special Servicer, the
aggregate amount of unreimbursed Advances made by such Person, together with any
unpaid Advance Interest in respect of such unreimbursed Advances and any unpaid
servicing compensation payable to such Person (which items shall be deemed to
have been paid or reimbursed to the Master Servicer or the Special Servicer, as
the case may be, in connection with such purchase); provided however, that any
such purchase shall be subject to the rights of any affected Designated
Sub-Servicer to continue to sub-service the Mortgage Loans covered by the
applicable Designated Sub-Servicer Agreement, (ii) the exchange by the Sole
Certificateholder of all the Certificates for all the Mortgage Loans and each
REO Property remaining in the Trust Fund, and (iii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in the Trust Fund; provided, however, that in no event
shall the Trust continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Joseph P. Kennedy, the late ambassador of
the United States to the Court of St. James, living on the date hereof.
The Master Servicer, the Special Servicer or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders, in that order of preference, may at its option elect to
purchase all the Mortgage Loans and each REO Property remaining in the Trust
Fund as contemplated by clause (i) of the preceding paragraph by giving written
notice to the other parties hereto (and, in the case of an election by the
Master Servicer or Special Servicer, to the Holders of the Controlling Class) no
later than 60 days prior to the anticipated date of purchase; provided, however,
that the aggregate Stated Principal Balance of the Mortgage Pool at the time of
such election is less than 1.0% of the Initial Pool Balance; and provided,
further, that within 30 days after written notice of such election is so given,
no Person with a higher right of priority to make such an election does so; and
provided, further, that if more than one Controlling Class Certificateholder or
group of Controlling Class Certificateholders desire to purchase all of the
Mortgage Loans and any REO Properties, preference shall be given to the
Controlling Class
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Certificateholder or group of Controlling Class Certificateholders with the
largest Percentage Interest in the Controlling Class. If the Trust is to be
terminated in connection with the purchase of all the Mortgage Loans and each
REO Property remaining in the Trust Fund by the Master Servicer, the Special
Servicer or any Controlling Class Certificateholder(s), such Person(s) shall
deliver to the Master Servicer for deposit (or, if the Master Servicer is the
purchaser, it shall deposit) in the Collection Account (after the Determination
Date, and prior to the Master Servicer Remittance Date, relating to the
anticipated Final Distribution Date) an amount in immediately available funds
equal to the Termination Price and shall reimburse all of the parties hereto
(other than itself, if applicable) for all reasonable out-of-pocket costs and
expenses incurred by such parties in connection with such purchase. On the
Master Servicer Remittance Date for the Final Distribution Date, the Master
Servicer shall transfer to the Distribution Account all amounts required to be
transferred thereto on such Master Servicer Remittance Date from the Collection
Account pursuant to the first paragraph of Section 3.04(b), together with any
other amounts on deposit in the Collection Account that would otherwise be held
for future distribution. Upon confirmation that the deposit of the Termination
Price has been made to the Collection Account and the reimbursement contemplated
by the second preceding sentence has been made to the parties hereto, the
Trustee shall release or cause to be released to the purchasing party (or its
designee) the Mortgage Files for the remaining Mortgage Loans and shall execute
all assignments, endorsements and other instruments furnished to it by the
purchasing party as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties to the purchasing party (or its designee).
The Sole Certificateholder shall have the right to exchange all of
the Certificates for all of the Mortgage Loans and each REO Property remaining
in the Trust Fund as contemplated by clause (ii) of the second preceding
paragraph by giving written notice to all the parties hereto no later than 60
days prior to the anticipated date of exchange. In the event that the Sole
Certificateholder elects to exchange all of the Certificates for all of the
Mortgage Loans and each REO Property remaining in REMIC I in accordance with the
preceding sentence, the Sole Certificateholder, not later than the Master
Servicer Remittance Date relating to the Distribution Date on which the final
distribution on the Certificates is to occur, shall deposit in the Collection
Account an amount in immediately available funds equal to all amounts then due
and owing to the Master Servicer, the Special Servicer, any Fiscal Agent, the
Certificate Administrator and/or the Tax Administrator hereunder that may be
withdrawn from the Collection Account pursuant to Section 3.05(a) or that may be
withdrawn from the Distribution Account pursuant to Section 3.05(b). In
addition, the Master Servicer shall transfer all amounts required to be
transferred to the Distribution Account on such Master Servicer Remittance Date
from the Collection Account pursuant to the first paragraph of Section 3.04(b).
Upon confirmation that such final deposits have been made and following the
surrender of all the Certificates on the Final Distribution Date, the Trustee
shall release or cause to be released to the Sole Certificateholder or its
designee, the Mortgage Files for the remaining Mortgage Loans and shall execute
all assignments, endorsements and other instruments furnished to it by the Sole
Certificateholder, as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in the Trust Fund. Such transfer shall be
subject to the rights of the Master Servicer and the Designated Sub-Servicers to
primary service (or to perform select servicing functions with respect to) the
Mortgage Loans.
Notice of any termination shall be given promptly by the
Certificate Administrator by letter to Certificateholders mailed (x) if such
notice is given in connection with the purchase of all the Mortgage Loans and
each REO Property remaining in the Trust Fund by the Master Servicer,
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the Special Servicer or any Controlling Class Certificateholder(s), not earlier
than the 15th day and not later than the 25th day of the month next preceding
the month of the final distribution on the Certificates and (y) otherwise during
the month of such final distribution on or before the Master Servicer Remittance
Date in such month, in any event specifying (i) the Distribution Date upon which
the Trust Fund will terminate and final payment on the Certificates will be
made, (ii) the amount of any such final payment in respect of each Class of
Certificates and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office or agency of the Certificate
Administrator therein designated. The Certificate Administrator shall give such
notice to the parties hereto at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Certificate Administrator
shall distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts on deposit in the Distribution Account that is allocable to payments on
the relevant Class in accordance with Section 4.01.
Any funds not distributed to any Holder or Holders of Certificates
of any Class on the Final Distribution Date because of the failure of such
Holder or Holders to tender their Certificates shall, on such date, be set aside
and held uninvested in trust and credited to the account or accounts of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Certificate Administrator shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Certificate Administrator, directly or
through an agent, shall take such reasonable steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders following the first anniversary
of the delivery of such second notice to the non-tendering Certificateholders
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust hereunder. If by the second
anniversary of the delivery of such second notice, all of the Certificates shall
not have been surrendered for cancellation, then, subject to applicable escheat
laws, the Certificate Administrator shall distribute to the Class R
Certificateholders all unclaimed funds and other assets which remain subject
hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or a Controlling
Class Certificateholder purchases, or the Sole Certificateholder exchanges all
the Certificates for, all the Mortgage Loans and each REO Property remaining in
the Trust Fund as provided in Section 9.01, the Trust and each REMIC Pool shall
be terminated in accordance with the following additional requirements, unless
the purchasing party obtains at its own expense and delivers to the Trustee and
the Tax Administrator an Opinion of Counsel, addressed to the Trustee and the
Tax Administrator, to the effect that the failure of the Trust to comply with
the requirements of this Section 9.02 will not result in an Adverse REMIC Event
with respect to any REMIC Pool:
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(i) the Tax Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each REMIC Pool, pursuant to Treasury regulation Section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder (as
evidenced by an Opinion of Counsel to such effect delivered on behalf
and at the expense of the purchasing party);
(ii) during such 90-day liquidation period and at or prior to the
time of making the final payment on the Certificates, the Trustee shall
sell/transfer all the Mortgage Loans and each REO Property to the
Master Servicer, the Special Servicer, the applicable Controlling Class
Certificateholder(s) or the Sole Certificateholder, as the case may be,
in exchange for cash and/or Certificates in accordance with Section
9.01; and
(iii) immediately following the making of the final payment on the
Certificates, the Certificate Administrator shall distribute or credit,
or cause to be distributed or credited, to the Holders of the Class R
Certificates all remaining cash on hand (other than cash retained to
meet claims), and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders hereby
authorize the Tax Administrator to prepare and adopt, on behalf of the Trust, a
plan of complete liquidation of each REMIC Pool in accordance with the terms and
conditions of this Agreement, which authorization shall be binding upon all
successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool as
a REMIC under the Code and, if necessary, under applicable state law. Each such
election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state Tax Returns for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued.
(b) The Plurality Class R Certificateholder is hereby designated
as the Tax Matters Person of each REMIC Pool and, in such capacity, shall be
responsible to act on behalf of such REMIC Pool in relation to any tax matter or
controversy, to represent such REMIC Pool in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority, to request an administrative adjustment as to any taxable year of
such REMIC Pool, to enter into settlement agreements with any governmental
taxing agency with respect to such REMIC Pool, to extend any statute of
limitations relating to any tax item of such REMIC Pool and otherwise to act on
behalf of such REMIC Pool in relation to any tax matter or controversy involving
such REMIC Pool; provided that the Tax Administrator is hereby irrevocably
appointed and agrees to act (in consultation with the Tax Matters Person for
each REMIC Pool) as agent and attorney-in-fact for the Tax Matters Person for
each REMIC Pool in the performance of its duties as such. The legal expenses and
costs of any action described in this Section 10.01(b) and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust
payable out of amounts on deposit in the Distribution Account as provided by
Section 3.05(b) unless such legal expenses and costs are incurred by reason of a
Tax Matters Person's or the Tax Administrator's misfeasance, bad faith or
negligence in the performance of, or such Person's reckless disregard of, its
obligations or are expressly provided by this Agreement to be borne by any party
hereto.
(c) The Tax Administrator shall prepare or cause to be prepared
and file, and the Trustee shall sign, all of the Tax Returns in respect of each
REMIC Pool and all of the applicable income tax and other information returns
for each Grantor Trust Pool. The expenses of preparing and filing such returns
shall be borne by the Tax Administrator without any right of reimbursement
therefor.
(d) The Tax Administrator shall perform on behalf of each REMIC
Pool all reporting and other tax compliance duties that are the responsibility
of such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide: (i) to any Transferor of
a Class R Certificate, such information as is necessary for the application of
any tax relating to the transfer of a Class R Certificate to any Person who is
not a Permitted Transferee; (ii) to the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption as required); and (iii) to the IRS, the name,
title, address and telephone number of the Person who will serve as the
representative of each REMIC Pool.
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(e) The Tax Administrator shall take such action and shall cause
each REMIC Pool to take such action as shall be necessary to create or maintain
the status thereof as a REMIC under the REMIC Provisions (and the other parties
hereto shall assist it, to the extent reasonably requested by the Tax
Administrator), to the extent that the Tax Administrator has actual knowledge
that any particular action is required; provided that the Tax Administrator
shall be deemed to have knowledge of relevant tax laws. Except as contemplated
by Section 3.17(a), the Tax Administrator shall not knowingly take or fail to
take any action, or cause any REMIC Pool to take or fail to take any action,
that under the REMIC Provisions, if taken or not taken, as the case may be,
could result in an Adverse REMIC Event in respect of any REMIC Pool, unless the
Tax Administrator has received an Opinion of Counsel (at the expense of the
person requesting such action or non-action) to the effect that the contemplated
action or non-action, as the case may be, will not result in an Adverse REMIC
Event. Except as contemplated by Section 3.17(a), none of the other parties
hereto shall take or fail to take any action (whether or not authorized
hereunder) as to which the Tax Administrator has advised it in writing that it
has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action. In addition, prior to taking any action
with respect to any REMIC Pool or the assets thereof, or causing any REMIC Pool
to take any action, which is not contemplated by the terms of this Agreement,
each of the other parties hereto will consult with the Tax Administrator, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur, and no such other party shall take any such action or cause any REMIC
Pool to take any such action as to which the Tax Administrator has advised it in
writing that an Adverse REMIC Event could occur. The Tax Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement.
(f) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer on behalf of the Trust pursuant
to Section 3.17(a)), such tax, together with all incidental costs and expenses
(including penalties and reasonable attorneys' fees), shall be charged to and
paid by: (i) the Trustee, if such tax arises out of or results from a breach of
any of its, the Tax Administrator's or the Certificate Administrator's
obligations under Article IV, Article VIII or this Article X; (iii) any Fiscal
Agent, if such tax arises out of or results from a breach of any of its
obligations under Article IV or this Article X; (iii) the Master Servicer, if
such tax arises out of or results from a breach by the Master Servicer of any of
its obligations under Article III or this Article X; (iv) the Special Servicer,
if such tax arises out of or results from a breach by the Special Servicer of
any of its obligations under Article III or this Article X; or (v) the Trust,
out of the Trust Fund (exclusive of Grantor Trust Pools), in all other
instances. If any tax is imposed on either Grantor Trust Pool, such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Tax Administrator, if such tax arises out of or results from a breach by the
Tax Administrator of any of its obligations under this Article X; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Trustee, if such tax arises out of or results from a breach by the
Trustee or the Certificate
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Administrator of any of its obligations under Article IV, Article VIII or this
Article X; or (v) the Trust, out of the portion of the Trust Fund constituting
such Grantor Trust Pool, in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee at the direction of the Tax Administrator out of
amounts on deposit in the Distribution Account.
(g) The Tax Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each REMIC Pool and each Grantor Trust Pool on a
calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee
shall not (except as contemplated by Section 3.06) accept any contributions of
assets to any REMIC Pool unless it shall have received an Opinion of Counsel (at
the expense of the party seeking to cause such contribution) to the effect that
the inclusion of such assets in such REMIC Pool will not result in an Adverse
REMIC Event in respect of such REMIC Pool.
(i) None of the Tax Administrator, the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent shall consent to or, to the
extent it is within the control of such Person, permit: (i) the sale or
disposition of any Mortgage Loan (except in connection with (A) a breach of any
representation or warranty regarding any Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase Agreement, (B) the foreclosure,
default or reasonably foreseeable material default of a Mortgage Loan, including
the sale or other disposition of a Mortgaged Property acquired by foreclosure,
deed in lieu of foreclosure or otherwise, (C) the bankruptcy of any REMIC Pool,
or (D) the termination of the Trust pursuant to Article IX of this Agreement);
(ii) the sale or disposition of any investments in the Collection Account or the
REO Account for gain; or (iii) the acquisition of any assets for the Trust
(other than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan, other than
Permitted Investments acquired in connection with the investment of funds in the
Collection Account or the REO Account); in any event unless it has received an
Opinion of Counsel (at the expense of the party seeking to cause such sale,
disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not result in an Adverse REMIC Event in respect of any REMIC
Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the
Tax Administrator, the Certificate Administrator, the Master Servicer, the
Special Servicer or the Trustee shall enter into any arrangement by which any
REMIC Pool will receive a fee or other compensation for services or, to the
extent it is within the control of such Person, permit any REMIC Pool to receive
any income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code. At all times as may be required by the Code, each of the
respective parties hereto (to the extent it is within its control) shall ensure
that substantially all of the assets of each REMIC Pool will consist of
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
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(k) Within 30 days after the related Startup Day, the Tax
Administrator shall prepare and file with the IRS, with respect to each REMIC
Pool, Form 8811 "Information Return for Real Estate Mortgage Investment Conduits
(REMICs) and Issuers of Collateralized Debt Obligations".
(l) On or before April 15 of each calendar year, commencing April
15, 2001, unless the Tax Administrator and the Trustee are the same Person, the
Tax Administrator shall deliver to the Trustee an Officer's Certificate from a
Responsible Officer of the Tax Administrator confirming the Tax Administrator's
compliance with its obligations under this Agreement during the prior calendar
year.
(m) The parties intend that the portion of the Trust Fund
consisting of Post-ARD Additional Interest on the ARD Loans and the Class Y
Sub-Account shall constitute, and that the affairs of such portion of the Trust
Fund shall be conducted so as to qualify as, a Grantor Trust, and the provisions
hereof shall be interpreted consistently with this intention. In addition, the
parties intend that the portion of the Trust Fund consisting of the REMIC I
Residual Interest, the REMIC II Residual Interest, the REMIC III Residual
Interest and the Loan REMIC Residual Interests shall constitute, and the affairs
of such portion of the Trust Fund shall be conducted so as to qualify as, a
Grantor Trust, and the provisions hereof shall be interpreted consistently with
this intention. The Tax Administrator shall perform on behalf of each Grantor
Trust Pool all reporting and other tax compliance duties that are the
responsibility of such Grantor Trust Pool under the Code or any compliance
guidance issued by the IRS or any state or local taxing authorities. The
expenses of preparing and filing such returns shall be borne by the Tax
Administrator.
(n) The Trustee, the Tax Administrator and the Certificate
Administrator shall comply with the terms of each Loan REMIC Declaration to the
extent that such Loan REMIC Declaration is not inconsistent with the provisions
of this Agreement.
SECTION 10.02. Depositor, Master Servicer, Special Servicer,
Trustee and Fiscal Agent to Cooperate with Tax
Administrator.
(a) The Depositor shall provide or cause to be provided to the Tax
Administrator, within 10 days after the Closing Date, all information or data
that the Tax Administrator reasonably determines to be relevant for tax purposes
as to the valuations and issue prices of the Certificates, including the price,
yield, prepayment assumption and projected cash flow of the Certificates.
(b) Each of the Master Servicer, the Special Servicer, the Trustee
and any Fiscal Agent shall furnish such reports, certifications and information
in its possession, and access to such books and records maintained thereby, as
may relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the Tax Administrator in order to enable it to perform its duties
hereunder.
SECTION 10.03. Appointment of Tax Administrator.
The Trustee may, at its own expense, appoint any Person with
appropriate tax-related experience to act as Tax Administrator hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Tax Administrator, the Trustee agrees to act in such capacity
in accordance with the terms hereof. The appointment of a Tax Administrator
shall not
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relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible for all acts and omissions of the Tax Administrator. The
Trustee shall cause any such Tax Administrator appointed by it to execute and
deliver to the Trustee an instrument in which such Tax Administrator shall agree
to act in such capacity in accordance with the obligations and responsibilities
provided for herein. The Tax Administrator shall be subject to the same
standards of care, limitations on liability and rights to indemnity as the
Trustee, and the provisions of Sections 8.01, 8.02, 8.03, 8.04, 8.05(b),
8.05(c), 8.05(d) and 8.05(e) shall apply to the Tax Administrator to the same
extent that they apply to the Trustee. Any Tax Administrator appointed in
accordance with this Section 10.03 may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee, the Master Servicer,
the Special Servicer and the Depositor. The Trustee may at any time terminate
the agency of any Tax Administrator appointed in accordance with this Section
10.03 by giving written notice of termination to such Tax Administrator, the
Master Servicer, and the Depositor.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add any other provisions with respect to matters or
questions arising hereunder which shall not be inconsistent with the already
existing provisions hereof, (iv) as evidenced by an Opinion of Counsel delivered
to the Trustee and the Tax Administrator, either (A) to comply with any
requirements imposed by the Code or any successor or amendatory statute or any
temporary or final regulation, revenue ruling, revenue procedure or other
written official announcement or interpretation relating to federal income tax
laws or any such proposed action which, if made effective, would apply
retroactively to any REMIC Pool or either Grantor Trust Pool at least from the
effective date of such amendment, or (B) to avoid the occurrence of a prohibited
transaction or to reduce the incidence of any tax that would arise from any
actions taken with respect to the operation of any REMIC Pool or either Grantor
Trust Pool, or (v) as provided in Section 5.02(d)(iv), to modify, add to or
eliminate any of the provisions of Section 5.02(d)(i), (ii) or (iii); provided
that such amendment (other than any amendment for any of the specific purposes
described in clauses (iv) and (v) above) shall not adversely affect in any
material respect the interests of any Certificateholder, as evidenced by an
Opinion of Counsel obtained by or delivered to the Trustee to such effect.
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to not less than 51% of the Voting Rights allocated to all
of the affected Classes, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments received or advanced on Mortgage Loans and/or REO
Properties which are required to be distributed on any Certificate, without the
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (i) above, without the consent of the Holders
of all Certificates of such Class, or (iii) modify the provisions of this
Section 11.01 or the definition of "Servicing Standard", without the consent of
the Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to the matters described above as they would if
registered in the name of any other Person.
(c) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the Tax Administrator shall consent to any amendment to
this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that neither such amendment nor the exercise of
any power granted to any party hereto in accordance with such amendment will
result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
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Grantor Trust Event with respect to either Grantor Trust Pool. In addition,
prior to the execution of any amendment to this Agreement, the Trustee shall be
entitled to receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement.
(d) Promptly after the execution and delivery of any amendment by
all parties thereto, the Trustee shall send a copy thereof to each
Certificateholder and to each Rating Agency.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section 11.01 that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
that it reasonably believes protects or is in furtherance of the rights and
interests of Certificateholders, the cost of any Opinion of Counsel required in
connection therewith pursuant to Section 11.01(a) or (c) shall be payable out of
the Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust (payable out of the
Collection Account), but only upon written direction of the Depositor
accompanied by an Opinion of Counsel (the cost of which may be paid out of the
Collection Account) to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
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(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of any other Holders of Certificates (except as expressly
permitted by this Agreement), or to obtain or seek to obtain priority over or
preference to any other such Holder (which priority or preference is not
otherwise provided for herein), or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in
accordance with the substantive laws of the State of New York applicable to
agreements made and to be performed entirely in said State, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws. The parties hereto intend that the provisions of Section 5-1401
of the New York General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing (including by telecopy) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given when delivered to or, in the case of
telecopy notice, when received: (i) in the case of the Depositor, Salomon
Brothers Mortgage Securities VII, Inc., 388 Greenwich Street, New York, New York
10013, Attention: Angela Hutzel, telecopy number: (212) 816-8306; (ii) in the
case of the Master Servicer and the Special Servicer, ORIX Real Estate Capital
Markets, LLC, 1717 Main Street, 14th Floor, Dallas, Texas 75201, Attention:
Edgar L. Smith II, telecopy number: (214)
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237-2037, with a copy to ORIX Real Estate Capital Markets, LLC, 1717 Main
Street, 12th Floor, Dallas, Texas 75201, Attention: Paul Smyth, telecopy number:
(214) 237-2040; (iii) in the case of the Trustee, Wells Fargo Bank Minnesota,
N.A., 11000 Broken Land Parkway, Columbia, Maryland 21044-3562, Attention:
Corporate Trust Administration (CMBS), Salomon Brothers Mortgage Securities VII,
Inc., Series 2000-C2, telecopy number: (410) 884-2360 (iv) in the case of the
Rating Agencies, (A) Moody's Investors Service, Inc., 99 Church Street, New
York, New York 10007, Attention: Commercial MBS Monitoring Department, telecopy
number: (212) 553-0300; and (B) Fitch, Inc. One State Street Plaza, New York,
New York 10004, Attention: Commercial Mortgage Surveillance, telecopy number:
(212) 635-0294; (v) in the case of any Mortgage Loan Seller, the address for
notices to it under the related Mortgage Loan Purchase Agreement; and (vi) in
the case of the Certificate Administrator, the Tax Administrator, the Custodian
and the Certificate Registrar, The Chase Manhattan Bank, 450 West 33rd Street,
14th Floor, New York, New York 10001, Attention: Capital Markets Fiduciary
Services (CMFS) Salomon Brothers 2000-C2, telecopy number: (212) 946-8302; or as
to each such Person such other address and/or telecopy number as may hereafter
be furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenant(s), agreement(s), provision(s) or term(s) shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto, their respective successors and assigns
and, as third party beneficiaries (with all right to enforce the obligations
hereunder intended for their benefit as if a party hereto), the Underwriters and
the non-parties referred to in Sections 6.03, 8.05 and 3.22(g), and all such
provisions shall inure to the benefit of the Certificateholders. No other
person, including any Borrower, shall be entitled to any benefit or equitable
right, remedy or claim under this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to and from the Rating Agencies, the
Depositor and Underwriters.
(a) The Trustee (or, with respect to items (v) and (vii) below,
the Certificate Administrator) shall promptly provide notice to each Rating
Agency, the Depositor and Underwriters with respect to each of the following of
which a Responsible Officer of the Trustee has actual knowledge:
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(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation, termination, merger or consolidation of the
Master Servicer, the Special Servicer or the Tax Administrator and the
appointment of a successor;
(iv) the appointment, resignation or removal of a Fiscal Agent;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Gain on Sale Reserve Fund;
(vi) any repurchase of a Mortgage Loan by a Mortgage Loan Seller
as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency and the Depositor with respect to each of the following of which
it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment
of a successor; and
(ii) any change in the location of the Collection Account.
(c) Each of the Master Servicer and the Special Servicer, as the
case may be, shall furnish each Rating Agency such information with respect to
the Mortgage Loans as such Rating Agency shall reasonably request and which the
Master Servicer or the Special Servicer, as the case may be, can reasonably
provide to the extent consistent with applicable law and the related Mortgage
Loan documents. In any event, the Master Servicer and the Special Servicer shall
notify each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) any change in the lien priority of the Mortgage securing any
Mortgage Loan;
(ii) any change in the identity of the anchor tenant (i.e., a
tenant representing more than 20% of the total net rentable square feet
of space) at any Mortgaged Property used for retail purposes or any
change in the term of the lease for an anchor tenant at any such
Mortgaged Property; and
(iii) any assumption of, or release or substitution of collateral
for, a Mortgage Loan that represents greater than 2% of the then
aggregate Stated Principal Balance of the Mortgage Pool;
(iv) any defeasance of or material damage to a Mortgaged Property.
(d) Each of the Master Servicer and the Special Servicer, as the
case may be, shall promptly furnish to each Rating Agency copies of the
following items (in each case, at or about the same time that it delivers or
causes the delivery of such item to the Trustee):
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(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) upon request, to the extent not already delivered, through
hard copy format or electronic format, each report prepared pursuant to
Section 3.09(e).
(e) The Certificate Administrator shall promptly deliver to each
Rating Agency (in hard copy format or through use of the Certificate
Administrator's Internet Website for Moody's) a copy of each Distribution Date
Statement, Unrestricted Servicer Report and Restricted Servicer Report forwarded
to the Holders of the Certificates (in each case, at or about the same time that
it delivers such Certificateholder Report to such Holders). Any Restricted
Servicer Reports delivered electronically as aforesaid shall be accessible on
the Certificate Administrator 's Internet Website only with the use of a
password, which shall be provided by the Certificate Administrator to each
Rating Agency.
(f) The parties intend that each Rating Agency provide to the
Trustee any Certificate Administrator, upon request, a listing of the
then-current rating (if any) assigned by such Rating Agency to each Class of
Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
Upon request, including a one-time standby request, the Trustee,
Certificate Administrator, the Master Servicer or the Special Servicer, as the
case may be, shall deliver to the Controlling Class Representative a copy of
each notice or other item of information such Person is required to deliver to
the Rating Agencies pursuant to Section 11.09, in each case simultaneously with
the delivery thereof to the Rating Agencies.
SECTION 11.11. Complete Agreement.
This Agreement embodies the complete agreement among the parties
and may not be varied or terminated except by a written agreement conforming to
the provisions of Section 11.01. All prior negotiations or representations of
the parties are merged into this Agreement and shall have no force or effect
unless expressly stated herein.
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IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
as Depositor
By: /s/ Angela Hutzel
---------------------------------------
Name: Angela Hutzel
Title: Assistant Vice President
ORIX REAL ESTATE CAPITAL MARKETS, LLC
as Master Servicer and Special Servicer
By: /s/ Edgar L. Smith
---------------------------------------
Name: Edgar L. Smith
Title: C. O. O.
WELLS FARGO BANK MINNESOTA, N.A.
Solely in its capacity as Trustee
By: /s/ Leslie A. Gaskill
--------------------------------------
Name: Leslie A. Gaskill
Title: Vice President
Wells Fargo Bank Minnesota,N.A.
its capacity as Trustee, hereby appoints The Chase
Manhattan Bank to act as Custodian, Certificate
Administrator, Tax Administrator and Certificate
Registrar under the terms of this Agreement.
WELLS FARGO BANK MINNESOTA, N.A.
Solely in its capacity as Trustee
By: /s/ Leslie A. Gaskill
---------------------------------
Name: Leslie A. Gaskill
Title: Vice President
The Chase Manhattan Bank hereby accepts its
appointment as Custodian, Certificate
Administrator, Tax Administrator and Certificate
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Registrar and agrees to act in such capacities in
accordance with the terms of this Agreement.
THE CHASE MANHATTAN BANK
By: /s/ Jennifer Bohannon
----------------------------------
Name: Jennifer Bohannon
Title: Assistant Vice President
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 15th day of August 2000, before me, a notary public in and
for said State, personally appeared Angela Hutzel, personally known to me to
be a Assistant Vice President of SALOMON BROTHERS MORTGAGE SECURITIES VII,
INC., one of the entities that executed the within instrument, and also known
to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Angela Testagrossa
------------------
Notary Public
[Notarial Seal]
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STATE OF Texas )
) ss.:
COUNTY OF Dallas )
On the 23rd day of August 2000, before me, a notary public in and
for said State, personally appeared Edgar L. Smith, known to me to be a C. O.
O. of ORIX REAL ESTATE CAPITAL MARKETS, LLC, one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Joni Maxwell
------------
Notary Public
[Notarial Seal]
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STATE OF New York )
) ss.:
COUNTY OF New York )
On the 24th day of August 2000, before me, a notary public in and
for said State, personally appeared Leslie A. Gaskill, known to me to be a Vice
President of WELLS FARGO BANK MINNESOTA, N.A., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Jack A. Aini
------------
Notary Public
[Notarial Seal]
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EXHIBIT A-1
FORM OF CLASS X CERTIFICATES
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
Pass-Through Rate: Variable Class Notional Amount of the Class X
Certificates as of the Closing Date:
$________________
Cut-off Date: August 1, 2000
Closing Date: August 24, 2000 Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
$________________
First Distribution Date: Aggregate Stated Principal Balance of the
September 18, 2000 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $781,523,168
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, Wells Fargo Bank Minnesota, N.A.
LLC
Special Servicer: Certificate Administrator:
ORIX Real Estate Capital Markets, The Chase Manhattan Bank
LLC
Certificate No. X-___ CUSIP No.: ________________
<PAGE> 223
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX
REAL ESTATE CAPITAL MARKETS, LLC, THE CHASE MANHATTAN BANK OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
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<PAGE> 224
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional amount of this Certificate (its "Certificate Notional Amount") as of
the Closing Date by the aggregate notional amount of all the Class X
Certificates (their "Class Notional Amount") as of the Closing Date) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class X Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off
Date specified above (the "Agreement"), among Salomon Brothers Mortgage
Securities VII, Inc., as depositor (the "Depositor", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC, as
master servicer (in such capacity, the "Master Servicer", which term includes
any successor entity under the Agreement) and as special servicer (in such
capacity, the "Special Servicer", which term includes any successor entity under
the Agreement), and Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein have the respective
meanings assigned thereto in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date"), to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class X Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Trustee by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes
3
<PAGE> 225
including the reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans and the payment of interest on such advances and
expenses.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or
any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor or an Affiliate
of the Depositor, then the Certificate Registrar shall refuse to register such
transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If a transfer of an interest in this Certificate, while it constitutes a
Book-Entry Certificate, is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of this Certificate by the Depositor or an Affiliate of the Depositor),
then the Certificate Owner desiring to effect such transfer must obtain either:
(i) a certificate from the prospective Transferee substantially in the form
attached either as Exhibit F-2C or as Exhibit F-2D to the Agreement; or (ii) an
Opinion of Counsel to the effect that such transfer may be made without
registration under the Securities Act. Any Certificateholder or Certificate
Owner desiring to effect a transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Salomon Smith Barney Inc., PaineWebber Incorporated, the Trustee,
any Fiscal Agent, the Master Servicer, the Special Servicer and the Certificate
Registrar against any liability that may result if such transfer, sale, pledge
or other disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named
4
<PAGE> 226
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in limited circumstances, the Certificate Registrar
shall refuse to register the transfer of this Certificate (and, if applicable,
any Certificate Owner shall refuse to transfer an interest in this Certificate),
unless it has received from the prospective Transferee either (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) if this Certificate is
being acquired by, on behalf of or with assets of a Plan in reliance upon
Prohibited Transaction Exemption 91-23, a certification to the effect that such
Plan (X) is an accredited investor as defined in Rule 501(a) of Regulation D of
the Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B)
of ERISA) by the Trustee, the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer or any Borrower with respect to
Mortgage Loans constituting 5% of the aggregate amortized principal of all the
Mortgage Loans determined as of the Closing Date, or by an Affiliate of any such
Person, and (Z) agrees that it will obtain from each of its Transferees a
written representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Certificate Registrar
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for
one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Registrar to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as described in the two preceding paragraphs.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
5
<PAGE> 227
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, any Fiscal Agent, the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Administrator, any Fiscal Agent or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator, any
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund, and (iii) the exchange by any Sole
Certificateholder of all the Certificates for all the Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 51% of the Voting Rights allocated to all of the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of any
REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
6
<PAGE> 228
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive
laws of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
7
<PAGE> 229
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as Certificate Registrar
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated:
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as Certificate Registrar
By:______________________________________
Authorized Officer
8
<PAGE> 230
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________
__________________________________________ for the account of
___________________________________________________.
Distributions made by check (such check to be made payable to
___________________) and all applicable statements and notices should be mailed
to __________. This information is provided by ________________________, the
Assignee named above, or ____________________, as its agent.
9
<PAGE> 231
EXHIBIT A-2
FORM OF CLASS A-1 AND A-2 CERTIFICATES
CLASS [A-1] [A-2] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class [A-1]
[A-2] Certificates as of the Closing Date:
$_______________
Cut-off Date: August 1, 2000
Closing Date: August 24, 2000 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
$_______________
First Distribution Date: Aggregate Stated Principal Balance of the
September 18, 2000 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $781,523,168
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, Wells Fargo Bank Minnesota, N.A.
LLC
Special Servicer: Certificate Administrator:
ORIX Real Estate Capital Markets, The Chase Manhattan Bank
LLC
Certificate No. [A-1] [A-2]-___ CUSIP No.:________________
<PAGE> 232
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX
REAL ESTATE CAPITAL MARKETS, LLC, THE CHASE MANHATTAN BANK OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [A-1] [A-2]
Certificates (their "Class Principal Balance") as of the Closing Date) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class [A-1] [A-2] Certificates. The Trust Fund was created and the Certificates
were issued pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among Salomon Brothers Mortgage
Securities VII, Inc., as depositor (the "Depositor", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC, as
master servicer (in such capacity, the "Master Servicer", which term includes
any successor entity under the Agreement) and as the special servicer (in such
capacity, the "Special Servicer", which term includes any successor entity under
the Agreement), and Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein have the respective
meanings assigned thereto in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
2
<PAGE> 233
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date") to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class [A-1] [A-2] Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on this
Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no later than the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of an Unfunded Principal Balance Reduction in respect of this Certificate) will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to
3
<PAGE> 234
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of this Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
any Fiscal Agent, the Certificate Administrator, the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the Certificate Administrator or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator, any
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund, and (iii) the exchange by any Sole
Certificateholder of all the Certificates for all the Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 51% of the Voting Rights allocated to all of the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of any
REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
4
<PAGE> 235
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive
laws of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
5
<PAGE> 236
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as Certificate Registrar
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] Certificates referred to in the
within-mentioned Agreement.
Dated:
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as Certificate Registrar
By:______________________________________
Authorized Officer
6
<PAGE> 237
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________ for the
account of ________________________________________.
Distributions made by check (such check to be made payable to
___________________________________________) and all applicable statements and
notices should be mailed to _________________________________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________, as its agent.
7
<PAGE> 238
EXHIBIT A-3
FORM OF CLASS B, C, D, E, F AND G CERTIFICATES
CLASS [B] [C] [D] [E] [F] [G] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
<TABLE>
<S> <C>
Pass-Through Rate: Variable Class Principal Balance of the Class [B][C] [D] [E] [F] [G]
Certificates as of the Closing Date: $_________
Cut-off Date: August 1, 2000
Closing Date: August 24, 2000 Initial Certificate Principal Balance of this Certificate
as of the Closing Date: $___________
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage Loans as
September 18, 2000 of the Closing Date ("Initial Pool Balance"): $781,523,168
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Wells Fargo Bank Minnesota, N.A.
Special Servicer: Certificate Administrator:
ORIX Real Estate Capital Markets, LLC The Chase Manhattan Bank
Certificate No. [B][C] [D] [E] [F] [G]-_______ CUSIP No.: _________________
</TABLE>
<PAGE> 239
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX
REAL ESTATE CAPITAL MARKETS, LLC, THE CHASE MANHATTAN BANK OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the
2
<PAGE> 240
Class [B] [C] [D] [E] [F] [G] Certificates (their "Class Principal Balance") as
of the Closing Date) in that certain beneficial ownership interest in the Trust
Fund evidenced by all the Class [B] [C] [D] [E] [F] [G] Certificates. The Trust
Fund was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among Salomon Brothers Mortgage Securities VII, Inc., as depositor
(the "Depositor", which term includes any successor entity under the Agreement),
ORIX Real Estate Capital Markets, LLC, as master servicer (in such capacity, the
"Master Servicer", which term includes any successor entity under the Agreement)
and as special servicer (in such capacity, the "Special Servicer", which term
includes any successor entity under the Agreement), and Wells Fargo Bank
Minnesota, N.A., as trustee (the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned thereto in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month, or if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date"), to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class [B] [C] [D] [E] [F] [G] Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
this Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no later than the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of an Unfunded Principal Balance Reduction in respect of this Certificate) will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
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<PAGE> 241
This Certificate is issuable in fully registered form only
without coupons. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate or any interest herein shall
be made (A) to any retirement plan or other employee benefit plan or
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that is subject to ERISA or Section 4975 of the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing this Certificate
or any interest herein on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan, if the purchase and holding of this Certificate or such
interest herein by the prospective Transferee would result in a violation of
Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code. Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this Certificate unless it has received from the prospective Transferee
either (i) a certification to the effect that such prospective Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Certificate Registrar that such transfer will not result in
a violation of Section 406 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code. For so long as this
Certificate constitutes a Book-Entry Certificate, each such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transactions Class Exemption 95-60.
If a Person is acquiring this Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Registrar to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as described in the preceding paragraph.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
4
<PAGE> 242
No service charge will be imposed for any registration of
transfer or exchange of this Certificate, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Administrator, any Fiscal Agent, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Administrator, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Certificate
Administrator, any Fiscal Agent, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, (ii) the purchase by the Master Servicer, the Special Servicer or
any single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund, and (iii)
the exchange by any Sole Certificateholder of all the Certificates for all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Master Servicer, the Special Servicer or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and any Fiscal Agent with the consent of the Holders of
Certificates entitled to not less than 51% of the Voting Rights allocated to all
of the affected Classes. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
5
<PAGE> 243
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
6
<PAGE> 244
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on its behalf by the Certificate Registrar.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B] [C] [D] [E] [F] [G] Certificates
referred to in the within-mentioned Agreement.
Dated:
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Certificate Registrar
By:_____________________________________
Authorized Officer
7
<PAGE> 245
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of __________________________________.
Distributions made by check (such check to be made payable to
_____________) and all applicable statements and notices should be mailed to
__________________________.
This information is provided by _____________________, the
Assignee named above, or ____________________, as its agent.
8
<PAGE> 246
EXHIBIT A-4
FORM OF CLASS H, J, K, L, M, N AND P CERTIFICATES
CLASS [H] [J] [K] [L] [M] [N] [P] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
<TABLE>
<S> <C>
Pass-Through Rate: ___% per annum Class Principal Balance of the Class [H] [J] [K] [L] [L] [M]
[N] [P] Certificates as of the Closing Date:
$____________
Cut-off Date: August 1, 2000
Closing Date: August 24, 2000 Initial Certificate Principal Balance of this Certificate
as of the Closing Date: $__________
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage Loans
September 18, 2000 as of the Closing Date ("Initial Pool Balance"):
$781,523,168
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Wells Fargo Bank Minnesota, N.A.
Special Servicer: Certificate Administrator:
ORIX Real Estate Capital Markets, LLC The Chase Manhattan Bank
Certificate No. [H] [J] [K] [L] [M] [N] [P]-____ CUSIP No.: ___________
</TABLE>
<PAGE> 247
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX
REAL ESTATE CAPITAL MARKETS, LLC, THE CHASE MANHATTAN BANK OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
2
<PAGE> 248
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the principal amount of this Certificate (its "Certificate Principal Balance")
as of the Closing Date by the aggregate principal amount of all the Class [H]
[J] [K] [L] [M] [N] [P] Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Class [H] [J] [K] [L] [M] [N] [P] Certificates. The Trust
Fund was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among Salomon Brothers Mortgage Securities VII, Inc., as depositor
(the "Depositor", which term includes any successor entity under the Agreement),
ORIX Real Estate Capital Markets, LLC, as master servicer (in such capacity, the
"Master Servicer", which term includes any successor entity under the Agreement)
and as special servicer (in such capacity, the "Special Servicer", which term
includes any successor entity under the Agreement), and Wells Fargo Bank
Minnesota, N.A., as trustee (the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned thereto in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date"), to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class [H] [J] [K] [L] [M] [N] [P] Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Certificate will be made by the Trustee by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
later than the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any portion of an Unfunded Principal Balance Reduction in respect of this
Certificate) will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the
3
<PAGE> 249
Agreement. As provided in the Agreement, withdrawals from the Distribution
Account, the Collection Account and, if established, the REO Account may be made
from time to time for purposes other than, and, in certain cases, prior to,
distributions to Certificateholders, such purposes including the reimbursement
of advances made, or certain expenses incurred, with respect to the Mortgage
Loans and the payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only
without coupons. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a transfer of this Certificate by the Depositor,
then the Certificate Registrar shall refuse to register such transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Salomon Smith Barney Inc., PaineWebber
Incorporated, the Trustee, any Fiscal Agent, the Master Servicer, the Special
Servicer and the Certificate Registrar against any liability that may result if
such transfer, sale, pledge or other disposition is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No transfer of this Certificate or any interest herein shall
be made except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification, substantially in the form attached as Annex 1 or Annex 2 to
Exhibit F-2A to the Agreement, to the effect that such prospective Transferee is
a Qualified Institutional Buyer or
4
<PAGE> 250
a certification from the prospective Transferee to the effect that such
prospective Transferee is an Institutional Accredited Investor.
No transfer of this Certificate or any interest herein shall
be made (A) to any retirement plan or other employee benefit plan or
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that is subject to ERISA or Section 4975 of the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing this Certificate
or any interest herein on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan, if the purchase and holding of this Certificate or such
interest herein by the prospective Transferee would result in a violation of
Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code. Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this Certificate unless it has received from the prospective Transferee
either (i) a certification to the effect that such prospective Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Certificate Registrar that such transfer will not result in
a violation of Section 406 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Registrar to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as described in the three preceding paragraphs.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of this Certificate, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Administrator, any Fiscal Agent, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Administrator, any Fiscal Agent or the
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<PAGE> 251
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Certificate
Administrator, any Fiscal Agent, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, (ii) the purchase by the Master Servicer, the Special Servicer or
any single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund, and (iii)
the exchange by any Sole Certificateholder of all the Certificates for all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Master Servicer, the Special Servicer or the
any single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and any Fiscal Agent with the consent of the Holders of
Certificates entitled to not less than 51% of the Voting Rights allocated to all
of the affected Classes. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
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<PAGE> 252
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on its behalf by the Certificate Registrar.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Certificate Registrar
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [H] [J] [K] [L] [M] [N] [P]
Certificates referred to in the within-mentioned Agreement.
Dated:
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Certificate Registrar
By:______________________________________
Authorized Officer
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<PAGE> 253
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_____________) and all applicable statements and notices should be mailed to
_____________________________.
This information is provided by ____________________________,
the Assignee named above, or ____________________, as its agent.
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<PAGE> 254
EXHIBIT A-5
FORM OF CLASS Y CERTIFICATES
CLASS Y COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
<TABLE>
<S> <C>
Cut-off Date: August 1, 2000 Percentage Interest evidenced by this Class Y
Certificate: ______%
Closing Date: August 24, 2000
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage Loans
September 18, 2000 as of the Closing Date ("Initial Pool Balance"):
$781,523,168
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Wells Fargo Bank Minnesota, N.A.
Special Servicer: Certificate Administrator:
ORIX Real Estate Capital Markets, LLC The Chase Manhattan Bank
Certificate No. Y-___ CUSIP No.: ________________
</TABLE>
<PAGE> 255
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX
REAL ESTATE CAPITAL MARKETS, LLC, THE CHASE MANHATTAN BANK OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that __________________ is the registered owner
of the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership
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<PAGE> 256
interest in the Trust Fund evidenced by all the Class Y Certificates. The Trust
Fund was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among Salomon Brothers Mortgage Securities VII, Inc., as depositor
(the "Depositor", which term includes any successor entity under the Agreement),
ORIX Real Estate Capital Markets, LLC, as master servicer (in such capacity, the
"Master Servicer", which term includes any successor entity under the Agreement)
and as special servicer (in such capacity, the "Special Servicer", which term
includes any successor entity under the Agreement), and Wells Fargo Bank
Minnesota, N.A, as trustee (the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned thereto in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date"), to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class Y Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Trustee by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only
without coupons. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration
3
<PAGE> 257
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of this Certificate is to be made
without registration under the Securities Act (other than in connection with the
initial issuance of the Certificates or a transfer of this Certificate by the
Depositor), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Salomon Smith Barney Inc., PaineWebber
Incorporated, the Trustee, any Fiscal Agent, the Master Servicer, the Special
Servicer and the Certificate Registrar against any liability that may result if
such transfer, sale, pledge or other disposition is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No transfer of this Certificate or any interest herein shall
be made except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification, substantially in the form attached as Annex 1 or Annex 2 to
Exhibit F-2A to the Agreement, to the effect that such prospective Transferee is
a Qualified Institutional Buyer or a certification from the prospective
Transferee to the effect that such prospective Transferee is an Institutional
Accredited Investor.
No transfer of this Certificate or any interest herein shall
be made (A) to any retirement plan or other employee benefit plan or
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that is subject to ERISA or Section 4975 of the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing this Certificate
or any interest herein on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan, if the purchase and holding of this Certificate or such
interest herein by the prospective Transferee would result in a violation of
Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code. Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this Certificate unless it has received from the prospective Transferee
either (i) a certification to the effect that such prospective Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Section 406 of
4
<PAGE> 258
ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Certificate Registrar that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Registrar to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as described in the three preceding paragraphs.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of this Certificate, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Administrator, any Fiscal Agent, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Administrator, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Certificate
Administrator, any Fiscal Agent, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, (ii) the purchase by the Master Servicer, the Special Servicer or
any single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund, and (iii)
the exchange by any Sole Certificateholder of all the Certificates for all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Master Servicer, the Special Servicer or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The
5
<PAGE> 259
exercise of such right may effect early retirement of the Certificates; however,
such right to purchase is subject to the aggregate Stated Principal Balance of
the Mortgage Pool at the time of purchase being less than 1.0% of the Initial
Pool Balance.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and any Fiscal Agent with the consent of the Holders of
Certificates entitled to not less than 51% of the Voting Rights allocated to all
of the affected Classes. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
6
<PAGE> 260
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on its behalf by the Certificate Registrar.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Certificate Registrar
By: _____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class Y Certificates referred to in the
within-mentioned Agreement.
Dated:
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Certificate Registrar
By: _____________________________________
Authorized Officer
7
<PAGE> 261
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _____________________________________________________ .
Distributions made by check (such check to be made payable to
____________) and all applicable statements and notices should be mailed to
_____________________________.
This information is provided by ______________________, the
Assignee named above, or ____________________, as its agent.
8
<PAGE> 262
EXHIBIT A-6
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
<TABLE>
<S> <C>
Cut-off Date: August 1, 2000 Percentage Interest evidenced by this Class R
Certificate: ___%
Closing Date: August 24, 2000
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage Loans
September 18, 2000 as of the Closing Date ("Initial Pool Balance"):
$781,523,168
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Wells Fargo Bank Minnesota, N.A
Special Servicer: Certificate Administrator:
ORIX Real Estate Capital Markets, LLC The Chase Manhattan Bank
Certificate No. R-__ CUSIP No.: _______________
</TABLE>
<PAGE> 263
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX
REAL ESTATE CAPITAL MARKETS, LLC, THE CHASE MANHATTAN BANK OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS
DESCRIBED HEREIN.
2
<PAGE> 264
IF ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS, IF ANY, ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner
of the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class R Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off
Date specified above (the "Agreement"), among Salomon Brothers Mortgage
Securities VII, Inc., as depositor (the "Depositor", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC, as
master servicer (in such capacity, the "Master Servicer", which term includes
any successor entity under the Agreement) and as special servicer (in such
capacity, the "Special Servicer", which term includes any successor entity under
the Agreement), and Wells Fargo Bank Minnesota, N.A, as trustee (the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein have the respective
meanings assigned thereto in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date") to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class R Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Trustee by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes
3
<PAGE> 265
including the reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans and the payment of interest on such advances and
expenses.
This Certificate is issuable in fully registered form only
without coupons. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a transfer of this Certificate by the
Depositor), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached as Exhibit F-2A to the Agreement; or (iii) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Salomon Smith Barney Inc., PaineWebber
Incorporated, the Trustee, any Fiscal Agent, the Master Servicer, the Special
Servicer and the Certificate Registrar against any liability that may result if
such transfer, sale, pledge or other disposition is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No transfer of this Certificate or any interest herein shall
be made except to a Qualified Institutional Buyer. The Certificate Registrar
shall refuse to register the transfer of this Certificate unless it has received
from the prospective Transferee a certification, substantially in the form
attached as Annex 1 or Annex 2 to Exhibit F-2A to the Agreement, to the effect
that such prospective Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall
be made (A) to any retirement plan or other employee benefit plan or
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that is subject to ERISA or Section 4975 of the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing this Certificate
or any interest herein on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan, if the purchase and holding of this Certificate or
4
<PAGE> 266
such interest herein by the prospective Transferee would result in a violation
of Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code. Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this Certificate unless it has received from the prospective Transferee
either: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) a certification to the effect that the purchase and holding of this
Certificate by such prospective Transferee is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60; or
(iii) a certification of facts and an Opinion of Counsel which otherwise
establish to the reasonable satisfaction of the Certificate Registrar that such
transfer will not result in a violation of Section 406 of ERISA or Section 4975
of the Code or result in the imposition of an excise tax under Section 4975 of
the Code.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by its acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee to deliver payments to a Person other
than such Person and to have irrevocably authorized the Trustee to negotiate the
terms of any mandatory disposition and to execute all instruments of Transfer
and to do all other things necessary in connection with any such disposition.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and shall promptly notify the Trustee and the Tax
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit H-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed Transferee,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in this
Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership Interest in
this Certificate, it will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of either the
Certificate Registrar or Trustee has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in this Certificate to such proposed Transferee shall be effected. In connection
therewith, the Certificate Registrar shall not register the transfer of an
Ownership Interest in this Certificate to any entity classified as a partnership
under the Code unless at the time of transfer, all of its beneficial owners are
United States Persons.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any other Person to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest herein unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit H-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
Each Person holding or acquiring an Ownership Interest in this Certificate, by
purchasing such Ownership Interest herein, agrees to give the Trustee and the
5
<PAGE> 267
Tax Administrator written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
If a Person is acquiring this Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Registrar to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as described in the five preceding paragraphs.
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee and the Tax Administrator the following: (a) written confirmation
from each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates; and (b) an Opinion of Counsel, in
form and substance satisfactory to the Trustee and the Tax Administrator, to the
effect that such modification of, addition to or elimination of such provisions
will not cause any REMIC Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of a Class R Certificate to a Person
that is not a Permitted Transferee, or cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the Transfer of a
Class R Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" and a "Non-United States Person". In addition, if
such Transferee is classified as a partnership under the Code, such Transferee
can only be a "Permitted Transferee" if all of its beneficial owners are United
States Persons.
A "Disqualified Organization" is any of (i) the United States
or a possession thereof, any State or political subdivision thereof or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for Freddie Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the Tax Administrator based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Class R Certificate by such Person may
cause the Trust or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
6
<PAGE> 268
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of this Certificate, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Administrator, any Fiscal Agent, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Administrator, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Certificate
Administrator, any Fiscal Agent, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, (ii) the purchase by the Master Servicer, the Special Servicer or
any single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund, and (iii)
the exchange by any Sole Certificateholder of all the Certificates for all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Master Servicer, the Special Servicer or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
7
<PAGE> 269
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and any Fiscal Agent with the consent of the Holders of
Certificates entitled to not less than 51% of the Voting Rights allocated to all
of the affected Classes. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
8
<PAGE> 270
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on its behalf by the Certificate Registrar.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Certificate Registrar
By: _____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
Dated:
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Certificate Registrar
By: _____________________________________
Authorized Officer
9
<PAGE> 271
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________for the
account of _______________________________________________.
Distributions made by check (such check to be made payable to
____________) and all applicable statements and notices should be mailed to
_____________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
10
<PAGE> 272
EXHIBIT B-1A
SCHEDULE OF SBRC MORTGAGE LOANS
[See Attached Schedule]
<PAGE> 273
Schedule of SBRC Mortgage Loans
<TABLE>
<CAPTION>
Mortgage Loan /
Control Loan Loan Property Property Zip
Number Number Seller Name Address City State Code
<S> <C> <C> <C> <C> <C> <C> <C>
1 6603043 SBRC Northpointe Plaza 9604-10220 North Spokane WA 99218
Newport Highway
6 6603071 SBRC Western Plaza II State Road No. Mayaguez PR 00680
Shopping Center 2, Kilometer
149.5
7 6602507 SBRC Metatec Building 7001 Metatec Dublin OH 43017
Boulevard
8 6605032 SBRC Red Lion 9898 Roosevelt Philadelphia PA 19115
Shopping Center Boulevard
20 6603488 SBRC Fountain Oaks 3603-3697 West Tampa FL 33614
Waters Avenue
21 6603311 SBRC Park Central 6551-6601 Park Boca Raton FL 33487
Office Of Commerce
Development Boulevard
22 6604217 SBRC McCormick Place 8125 North Scottsdale AZ 85258
Office Park Hayden Road
23 6604332 SBRC One Michigan 120 North Lansing MI 48933
Avenue Washington Square
25 6603150 SBRC St. Joseph 2000 Crawford Houston TX 77002
Professional Street
Building
26 6603774 SBRC Penns Plaza 2 Penns Way New Castle DE 19720
Hundred
27 6603051 SBRC Airport Plaza 1754 Technology San Jose CA 95110
Office Center - Drive
Phase 1
29 6602253 SBRC Hampton Inn - 4280 Columbus OH 43219
Columbus International
Gateway
30 7000000 SBRC Comfort Suites 4270 Sawyer Road Columbus OH 43219
Hotel
31 6604495 SBRC Raintree 15300 North 90th Scottsdale AZ 85260
Corporate Center Street
- Phase I
32 6604157 SBRC For Eyes Optical
Portfolio
32A 6604157A SBRC For Eyes Optical 285 West 74th Hialeah FL 33014
- Hialeah Place
32B 6604157B SBRC For Eyes Optical 7535 West 4th Hialeah FL 33014
- Hialeah 2 Avenue
32C 6604157C SBRC For Eyes Optical 1630 Walnut Philadelphia PA 19103
- Philadelphia 2 Street
32D 6604157D SBRC For Eyes Optical 5251 North Lauderhill FL 33351
- Lauderhill University Drive
32E 6604157E SBRC For Eyes Optical 3405 US Highway Casselberry FL 32707
- Casselberry 17-92 South
32F 6604157F SBRC For Eyes Optical 3542-3544 Coral Miami FL 33145
- Coral Gables Way
32G 6604157G SBRC For Eyes Optical 8107-8111 Richmond VA 23235
- Richmond Midlothian
Turnpike
32H 6604157H SBRC For Eyes Optical 1213 Lancaster Rosemont PA 19010
- Rosemont Avenue
32I 6604157I SBRC For Eyes Optical 2144 South Broad Philadelphia PA 19145
- Philadelphia Street
36 6603019 SBRC 2265 Ralph Avenue 2265 Ralph Avenue Brooklyn NY 11234
44 6603305 SBRC Brookwood Square 2140 Peachtree Atlanta GA 30309
Shopping Center Road
47 6604369 SBRC Sorrento Glen 11189 & 11199 San Diego CA 92121
Sorrento Valley
Road
48 6603691 SBRC Melrose Plaza 7500-7516 Los Angeles CA 90046
Melrose Avenue
</TABLE>
<TABLE>
<CAPTION>
Monthly Original
Mort- Cut-off Debt Term to
Control Loan Original gage Note Date Service Maturity /
Number Number Balance Rate Date Balance Payment ARD (months)
<S> <C> <C> <C> <C> <C> <C> <C>
1 6603043 31,700,000 7.8000% 08/13/99 31,483,555 228,198.95 120
6 6603071 19,200,000 8.1700% 06/15/99 19,063,254 143,164.79 120
7 6602507 19,000,000 8.2000% 07/28/99 18,874,391 142,073.35 120
8 6605032 17,000,000 8.8600% 02/08/00 16,949,946 135,076.86 120
20 6603488 11,500,000 8.0600% 08/30/99 11,426,513 84,864.43 120
21 6603311 11,150,000 8.0300% 08/23/99 11,078,196 82,048.06 120
22 6604217 10,512,000 8.4400% 03/02/00 10,490,896 80,381.61 120
23 6604332 9,850,000 8.2300% 12/28/99 9,811,784 73,861.31 120
25 6603150 8,500,000 8.2500% 08/06/99 8,448,309 63,857.66 120
26 6603774 8,172,000 8.3800% 12/03/99 8,141,517 62,141.95 120
27 6603051 8,100,000 7.8500% 07/15/99 8,041,261 58,590.13 120
29 6602253 6,000,000 7.2600% 09/04/98 5,795,196 45,570.91 240
30 7000000 2,080,000 7.2600% 09/04/98 2,009,001 15,797.92 240
31 6604495 7,300,000 8.5300% 01/07/00 7,276,618 56,285.96 120
32 6604157 6,950,000 8.9300% 02/29/00 6,935,696 55,571.58 120
32A 6604157A
32B 6604157B
32C 6604157C
32D 6604157D
32E 6604157E
32F 6604157F
32G 6604157G
32H 6604157H
32I 6604157I
36 6603019 6,375,000 7.7500% 05/07/99 6,319,280 45,671.28 120
44 6603305 5,700,000 8.1600% 07/28/99 5,635,265 44,599.38 120
47 6604369 5,425,000 8.4100% 03/20/00 5,414,017 41,368.02 120
48 6603691 5,350,000 8.0300% 10/04/99 5,321,889 39,368.35 120
</TABLE>
<TABLE>
<CAPTION>
Stated Calculated Calculated
Remaining Original Original Remaining
Term to Scheduled Amortization Amortization Amortization Loan Balance
Control Loan Maturity / Maturity Term Term Term at
Number Number ARD (months) Date (months) (months) (months) Maturity / ARD
<S> <C> <C> <C> <C> <C> <C> <C>
1 6603043 109 09/01/29 360 360 349 28,217,084
6 6603071 107 07/01/29 360 360 347 17,248,976
7 6602507 108 08/01/09 360 360 348 17,078,006
8 6605032 114 02/01/10 360 360 354 15,501,558
20 6603488 109 09/01/09 360 360 349 10,300,660
21 6603311 109 09/01/09 360 360 349 9,980,047
22 6604217 116 04/01/10 360 360 356 9,497,275
23 6604332 113 01/01/10 360 360 353 8,857,314
25 6603150 109 09/01/09 360 360 349 7,647,567
26 6603774 113 01/01/10 360 360 353 7,373,916
27 6603051 108 08/01/09 360 360 348 7,220,108
29 6602253 218 10/01/18 264 264 242 1,239,045
30 7000000 218 10/01/18 264 264 242 429,533
31 6604495 114 02/01/10 360 360 354 6,608,151
32 6604157 115 03/01/10 360 360 355 6,349,276
32A 6604157A
32B 6604157B
32C 6604157C
32D 6604157D
32E 6604157E
32F 6604157F
32G 6604157G
32H 6604157H
32I 6604157I
36 6603019 106 06/01/09 360 360 346 5,668,830
44 6603305 108 08/01/09 300 300 288 4,721,444
47 6604369 116 04/01/10 360 360 356 4,897,973
48 6603691 111 11/01/09 360 360 351 4,788,443
</TABLE>
<TABLE>
<CAPTION>
Cross Antici-
Collater- pated
alized Repay- Defease Defease Interest
Control Loan (Mortgage ment Start End Ownership Accrual
Number Number Loan Group) Date Date Date Interest Method
<S> <C> <C> <C> <C> <C> <C> <C>
1 6603043 No 09/01/09 09/01/02 07/31/09 Fee Simple Actual/360
6 6603071 No 07/01/09 09/01/02 04/30/09 Fee Simple Actual/360
7 6602507 No NAP 09/01/02 05/31/09 Fee Simple Actual/360
8 6605032 No NAP NAP NAP Fee Simple Actual/360
20 6603488 No NAP 09/01/02 06/30/09 Fee Simple Actual/360
21 6603311 No NAP 09/01/02 06/30/09 Fee Simple Actual/360
22 6604217 No NAP 09/01/02 01/31/10 Fee Simple Actual/360
23 6604332 No NAP 09/01/02 09/30/09 Fee Simple Actual/360
25 6603150 No NAP 09/01/02 04/30/09 Fee Simple Actual/360
26 6603774 No NAP 09/01/02 09/30/09 Fee Simple Actual/360
27 6603051 No NAP 09/01/02 05/31/09 Fee Simple Actual/360
29 6602253 Yes (c) NAP 10/01/01 06/30/18 Leasehold Actual/360
30 7000000 Yes (c) NAP 10/01/01 06/30/18 Leasehold Actual/360
31 6604495 No NAP 09/01/02 11/30/09 Fee Simple Actual/360
32 6604157 No NAP 09/01/02 11/30/09 Actual/360
32A 6604157A Fee Simple
32B 6604157B Fee Simple
32C 6604157C Fee Simple
32D 6604157D Fee Simple
32E 6604157E Fee Simple
32F 6604157F Fee Simple
32G 6604157G Fee Simple
32H 6604157H Fee Simple
32I 6604157I Fee Simple
36 6603019 No NAP 09/01/02 02/28/09 Fee Simple Actual/360
44 6603305 No NAP 09/01/02 04/30/09 Fee Simple Actual/360
47 6604369 No NAP 09/01/02 01/31/10 Fee Simple Actual/360
48 6603691 No NAP 09/01/02 08/31/09 Fee Simple Actual/360
</TABLE>
<TABLE>
<CAPTION>
Yield
Master Maintenance
Control Loan Servicing Calculation
Number Number Fee Rate Method
<S> <C> <C> <C>
1 6603043 0.0600% NAP
6 6603071 0.0500% NAP
7 6602507 0.0600% NAP
8 6605032 0.0500% Present Value
Type 1
20 6603488 0.0950% NAP
21 6603311 0.0900% NAP
22 6604217 0.0500% NAP
23 6604332 0.0500% NAP
25 6603150 0.1100% NAP
26 6603774 0.0500% NAP
27 6603051 0.1100% NAP
29 6602253 0.0500% NAP
30 7000000 0.0500% NAP
31 6604495 0.1100% NAP
32 6604157 0.1450% NAP
32A 6604157A
32B 6604157B
32C 6604157C
32D 6604157D
32E 6604157E
32F 6604157F
32G 6604157G
32H 6604157H
32I 6604157I
36 6603019 0.0500% NAP
44 6603305 0.0500% NAP
47 6604369 0.0900% NAP
48 6603691 0.0500% NAP
</TABLE>
<PAGE> 274
Schedule of SBRC Mortgage Loans
<TABLE>
<CAPTION>
Mortgage Loan /
Control Loan Loan Property Property Zip Original
Number Number Seller Name Address City State Code Balance
<S> <C> <C> <C> <C> <C> <C> <C> <C>
50 6603952 SBRC Gates Park 150 Peyton Atlanta GA 30311 5,250,000
Crossing Place, S.W.
Apartments
54 6603153 SBRC Fairgrounds 2525 Flosden Road American CA 94589 5,080,000
Mobile Estates Canyon
56 6604346 SBRC The Market at 4500 Summer Memphis TN 38112 5,000,000
Summer Oaks Avenue
57 6603590 SBRC Cambridge 12945 South Post Houston TX 77045 4,965,000
Village Oak Road
Apartments
59 6603771 SBRC Princess Anne 2052-2076 South Virginia Beach VA 23456 4,400,000
Marketplace Independence
Boulevard
60 6603263 SBRC Pinon Trails 1501 Lomaland El Paso TX 79935 4,300,000
Apartments Drive
62 6604264 SBRC 500 South Salina 500 South Salina Syracuse NY 13202 4,200,000
Street Street
63 6603487 SBRC Kerman Shopping 15040 West Kerman CA 93630 4,150,000
Center Whitesbridge
Avenue
67 6603452 SBRC Beverly Westside 7122 Beverly Los Angeles CA 90036 3,725,000
Boulevard
68 6603174 SBRC Balboa Palms 8441 Balboa Northridge CA 91325 2,000,000
Apartments Boulevard
69 6603178 SBRC Tarzana Palms 5725 Reseda Los Angeles CA 91356 1,680,000
Apartments Boulevard
71 6603021 SBRC 1445 Hempstead 1445 Hempstead Elmont NY 11003 3,650,000
Turnpike Turnpike
73 6602817 SBRC Campbell Hill 308-330 Campbell Bowling Green OH 43402 3,570,000
Apartments Hill Road
75 6603419 SBRC Lamar Crossing 3945-4045 Lamar Paris TX 75462 3,330,000
Shopping Center Street
79 6603491 SBRC Vacaville Town 741-791 East Vacaville CA 95688 3,185,000
Center Monte Vista
Avenue
83 6603938 SBRC 411-423 East 411-423 East New York NY 10029 3,000,000
114th Street 114th Street
87 6603175 SBRC Independence 7255 Canoga Park CA 91303 2,800,000
Court Apartments Independence
Avenue
88 6603020 SBRC 5601 Merrick Road 5601 Merrick Road Massapequa NY 11758 2,718,000
89 6603887 SBRC Pinnacle 2242 & 2272 Twinsburg OH 44087 2,696,000
Warehouse Pinnacle Parkway
90 6603769 SBRC 300 Wildwood 300 Wildwood Woburn MA 01810 2,700,000
Avenue Avenue
95 6603246 SBRC Spartacus 4401 Spartacus Huntsville AL 35805 2,640,000
Apartments Drive
96 6604046 SBRC Storage Depot I 276 Mt. Hermon Scotts Valley CA 95066 2,612,000
Road
97 6603225 SBRC Village Place 7701-7739 West Houston TX 77071 2,596,528(@)
Shopping Center Bellfort Avenue
99 6602382 SBRC Tivoli Square 1820 Whitley Los Angeles CA 90028 2,535,000
Apartments Avenue
101 6604473 SBRC McBee Apartments 1 Merritt Circle Greenville SC 29601 2,500,000
102 6603238 SBRC Golden Sands 15930 Nisqualli Victorville CA 92392 2,500,000
Apartments Road
107 6603149 SBRC Boardwalk at 304 - 321 Quincy MA 02171 2,334,500
Marina Bay Victory Road
115 6603511 SBRC Crosstown Self 950 Crosstown Peachtree City GA 30269 2,000,000
Storage Drive
120 6602692 SBRC One Centennial One Centennial Peabody MA 01960 1,925,000
Drive Drive
121 6602379 SBRC Diplomat 1837 Whitley Los Angeles CA 90028 1,910,000
Apartments Avenue
136 6602380 SBRC Monaco Apartments 1823 Grace Avenue Los Angeles CA 90028 1,550,000
</TABLE>
<TABLE>
<CAPTION>
Monthly Original Remaining
Mort- Cut-off Debt Term to Term to
Control Loan gage Note Date Service Maturity / Maturity /
Number Number Rate Date Balance Payment ARD (months) ARD (months)
<S> <C> <C> <C> <C> <C> <C> <C>
50 6603952 8.2800% 10/14/99 5,224,150 39,552.28 120 111
54 6603153 7.6000% 05/25/99 5,033,877 35,868.60 120 106
56 6604346 8.4700% 02/25/00 4,988,120 38,339.42 120 115
57 6603590 8.0200% 09/10/99 4,936,494 36,500.66 120 110
59 6603771 8.3400% 10/19/99 4,378,676 33,334.53 120 111
60 6603263 7.9400% 08/25/99 4,271,663 31,372.21 120 109
62 6604264 8.4400% 03/29/00 4,191,568 32,115.94 120 116
63 6603487 8.2000% 09/10/99 4,127,294 31,031.81 120 110
67 6603452 8.6500% 09/14/99 3,707,014 29,038.95 120 110
68 6603174 7.8300% 12/09/99 1,991,407 14,438.97 120 113
69 6603178 7.8300% 12/09/99 1,672,782 12,128.74 120 113
71 6603021 7.7500% 05/07/99 3,618,098 26,149.05 120 106
73 6602817 8.4300% 10/27/99 3,553,108 27,273.30 120 111
75 6603419 8.5100% 11/03/99 3,316,711 25,628.42 120 112
79 6603491 8.0400% 08/17/99 3,164,542 23,459.28 120 109
83 6603938 8.9800% 01/21/00 2,991,439 24,095.52 120 114
87 6603175 7.8300% 12/09/99 2,787,969 20,214.56 120 113
88 6603020 8.2500% 08/05/99 2,701,471 20,419.43 120 109
89 6603887 8.3800% 12/15/99 2,685,943 20,501.06 120 113
90 6603769 8.1000% 09/29/99 2,684,825 20,000.19 120 110
95 6603246 7.4900% 06/01/99 2,617,493 18,441.19 120 107
96 6604046 8.8700% 12/14/99 2,596,919 21,687.75 120 113
97 6603225@) 8.1500% 05/21/99 2,579,991 19,353.44 117 106
99 6602382 8.1000% 08/02/99 2,520,752 18,777.95 120 110
101 6604473 8.4900% 02/28/00 2,494,096 19,205.12 120 115
102 6603238 7.4200% 05/14/99 2,476,260 17,343.62 120 106
107 6603149 8.4400% 08/05/99 2,311,282 18,703.73 120 109
115 6603511 8.4300% 07/30/99 1,978,457 16,010.31 120 108
120 6602692 8.8500% 12/14/99 1,918,678 15,281.68 120 113
121 6602379 8.2300% 08/02/99 1,900,471 14,322.35 120 111
136 6602380 8.1000% 08/02/99 1,541,288 11,481.59 120 110
</TABLE>
<TABLE>
<CAPTION>
Stated Calculated Calculated Cross
Original Original Remaining Collater-
Scheduled Amortization Amortization Amortization Loan Balance alized
Control Loan Maturity Term Term Term at (Mortgage
Number Number Date (months) (months) (months) Maturity/ARD Loan Group)
<S> <C> <C> <C> <C> <C> <C> <C>
50 6603952 11/01/09 360 360 351 4,726,586 No
54 6603153 06/01/09 360 360 346 4,500,543 No
56 6604346 03/01/10 360 360 355 4,521,387 No
57 6603590 10/01/09 360 360 350 4,443,632 No
59 6603771 11/01/09 360 360 351 3,966,822 No
60 6603263 09/01/09 360 360 349 3,840,538 No
62 6604264 04/01/10 360 360 356 3,794,573 No
63 6603487 10/01/09 360 360 350 3,730,043 No
67 6603452 10/01/09 360 360 350 3,382,677 No
68 6603174 01/01/10 360 360 353 1,781,422 Yes (e)
69 6603178 01/01/10 360 360 353 1,496,394 Yes (e)
71 6603021 06/01/09 360 360 346 3,245,683 No
73 6602817 11/01/09 360 360 351 3,225,177 No
75 6603419 12/01/09 360 360 352 3,014,332 No
79 6603491 09/01/09 360 360 349 2,851,480 No
83 6603938 02/01/10 360 360 354 2,742,669 No
87 6603175 01/01/10 360 360 353 2,493,991 No
88 6603020 09/01/09 360 360 349 2,445,421 No
89 6603887 01/01/10 360 360 353 2,432,707 No
90 6603769 10/01/09 360 360 350 2,421,072 No
95 6603246 07/01/09 360 360 347 2,332,725 No
96 6604046 01/01/10 300 300 293 2,205,776 No
97 6603225 06/01/09 357 358 347 2,334,827 No
99 6602382 10/01/09 360 360 350 2,273,119 No
101 6604473 03/01/10 360 360 355 2,261,721 No
102 6603238 06/01/09 360 360 346 2,204,819 No
107 6603149 09/01/09 300 300 289 1,948,586 No
115 6603511 08/01/09 300 300 288 1,669,310 No
120 6602692 01/01/10 360 360 353 1,755,349 No
121 6602379 11/01/09 360 360 351 1,717,581 No
136 6602380 10/01/09 360 360 350 1,389,875 No
</TABLE>
<TABLE>
<CAPTION>
Antici-
pated Yield
Repay- Defease Defease Interest Master Maintenance
Control Loan ment Start End Ownership Accrual Servicing Calculation
Number Number Date Date Date Interest Method Fee Rate Method
<S> <C> <C> <C> <C> <C> <C> <C> <C>
50 6603952 NAP 09/01/02 08/31/09 Fee Simple Actual/360 0.1000% NAP
54 6603153 NAP 09/01/02 03/31/09 Fee Simple Actual/360 0.0500% NAP
56 6604346 NAP 09/01/02 12/31/09 Fee Simple Actual/360 0.0500% NAP
57 6603590 NAP 09/01/02 06/30/09 Fee Simple Actual/360 0.1100% NAP
59 6603771 NAP 09/01/02 08/31/09 Fee Simple Actual/360 0.0500% NAP
60 6603263 NAP 09/01/02 06/30/09 Fee Simple Actual/360 0.1100% NAP
62 6604264 NAP 09/01/02 01/31/10 Fee Simple Actual/360 0.0500% NAP
63 6603487 NAP 09/01/02 07/31/09 Fee Simple Actual/360 0.0500% NAP
67 6603452 NAP 09/01/02 08/31/09 Fee Simple Actual/360 0.0500% NAP
68 6603174 NAP 09/01/02 10/31/09 Fee Simple Actual/360 0.1100% NAP
69 6603178 NAP 09/01/02 10/31/09 Fee Simple Actual/360 0.1100% NAP
71 6603021 NAP 09/01/02 02/28/09 Fee Simple Actual/360 0.0500% NAP
73 6602817 NAP 09/01/02 08/31/09 Fee Simple Actual/360 0.1100% NAP
75 6603419 NAP 09/01/02 09/30/09 Fee Simple Actual/360 0.1000% NAP
79 6603491 NAP 09/01/02 06/30/09 Fee Simple Actual/360 0.1100% NAP
83 6603938 NAP 09/01/02 11/30/09 Fee Simple Actual/360 0.0500% NAP
87 6603175 NAP 09/01/02 10/31/09 Fee Simple Actual/360 0.1100% NAP
88 6603020 NAP 09/01/02 06/30/09 Fee Simple Actual/360 0.0500% NAP
89 6603887 NAP 09/01/02 09/30/09 Fee Simple Actual/360 0.0500% NAP
90 6603769 NAP 09/01/02 07/31/09 Fee Simple Actual/360 0.0500% NAP
95 6603246 NAP 09/01/02 04/30/09 Fee Simple Actual/360 0.1000% NAP
96 6604046 NAP 09/01/02 10/31/09 Leasehold Actual/360 0.0500% NAP
97 6603225 NAP 06/01/03 03/31/09 Fee Simple Actual/360 0.1100% NAP
99 6602382 NAP 09/01/02 07/31/09 Fee Simple Actual/360 0.0500% NAP
101 6604473 NAP 09/01/02 12/31/09 Fee Simple Actual/360 0.0500% NAP
102 6603238 NAP 09/01/02 03/31/09 Fee Simple Actual/360 0.0900% NAP
107 6603149 NAP 09/01/02 05/31/09 Fee Simple Actual/360 0.0500% NAP
115 6603511 NAP 09/01/02 05/31/09 Fee Simple Actual/360 0.1000% NAP
120 6602692 NAP 09/01/02 09/30/09 Fee Simple Actual/360 0.0500% NAP
121 6602379 NAP 09/01/02 08/31/09 Fee Simple Actual/360 0.0500% NAP
136 6602380 NAP 09/01/02 07/31/09 Fee Simple Actual/360 0.0500% NAP
</TABLE>
2
<PAGE> 275
Schedule of SBRC Mortgage Loans
<TABLE>
<CAPTION>
Mortgage Loan /
Control Loan Loan Property Property Zip Original
Number Number Seller Name Address City State Code Balance
<S> <C> <C> <C> <C> <C> <C> <C> <C>
142 6603541 SBRC Bonhampton 15 & 25 South Edison NJ 08837 1,500,000
Corners Main Street
176 6603177 SBRC Parthenia Garden 15455 Parthenia North Hills CA 91343 1,000,000
Apartments Street
</TABLE>
<TABLE>
<CAPTION>
Monthly Original Remaining
Mort- Cut-off Debt Term to Term to Scheduled
Control Loan gage Note Date Service Maturity / Maturity / Maturity
Number Number Rate Date Balance Payment ARD (months) ARD (months) Date
<S> <C> <C> <C> <C> <C> <C> <C> <C>
142 6603541 7.7900% 07/16/99 1,447,064 14,153.53 120 108 08/01/09
176 6603177 7.8300% 12/09/99 995,703 7,219.49 120 113 01/01/10
</TABLE>
<TABLE>
<CAPTION>
Stated Calculated Calculated Cross Antici-
Original Original Remaining Collater- pated
Amortization Amortization Amortization Loan Balance alized Repay- Defease
Control Loan Term Term Term at (Mortgage ment Start
Number Number (months) (months) (months) Maturity / ARD Loan Group) Date Date
<S> <C> <C> <C> <C> <C> <C> <C> <C>
142 6603541 180 180 168 722,638 No NAP 09/01/02
176 6603177 360 360 353 890,710 No NAP 09/01/02
</TABLE>
<TABLE>
<CAPTION>
Yield
Defease Interest Master Maintenance
Control Loan End Ownership Accrual Servicing Calculation
Number Number Date Interest Method Fee Rate Method
<S> <C> <C> <C> <C> <C> <C>
142 6603541 03/31/09 Fee Simple Actual/360 0.0500% NAP
176 6603177 10/31/09 Fee Simple Actual/360 0.1100% NAP
</TABLE>
3
<PAGE> 276
EXHIBIT B-1B
SCHEDULE OF PWRES MORTGAGE LOANS
[See Attached Schedule]
<PAGE> 277
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER MORTGAGE LOAN / PROPERTY PROPERTY ADDRESS CITY STATE ZIP CODE
NUMBER LOAN SELLER NAME
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
2 10651 PW 1615 Poydras Street 1615 Poydras Street New Orleans LA 70112
5 10388 PW Diplomat Centre 820 Second Avenue New York NY 10017
9 11128 PW Diamond Point Plaza 8250 Eastern Avenue Baltimore MD 21224
10 11539 PW Mount Vernon 755 Mount Vernon Atlanta GA 30328
Medical Office Highway
Building
12 10124 PW 110 Greenwich Street 110 Greenwich New York NY 10006
Street
13 10959 PW San Fernando Profess
ional Buildings
Portfolio
13A 10959A PW 11155-11165 11155-11165 Mission Hills CA 91345
Sepulveda Boulevard Sepulveda Boulevard
13B 10959B PW 11211 Sepulveda 11211 Sepulveda Mission Hills CA 91345
Boulevard Boulevard
13C 10959C PW 17909 Soledad 17909 Soledad Santa Clarita CA 91351
Canyon Road Canyon Road
14 9913 PW 3200 Regatta 3200 Regatta Richmond CA 94804
Boulevard Boulevard
17 11233A PW Kmart Plaza 200 South Main West Lebanon NH 03784
Street
18 11233B PW Miracle Mile 422 Miracle Mile Lebanon NH 03766
Shopping Center
19 11233C PW North Country Plaza 267 Plainfield Road West Lebanon NH 03784
28 7217 PW 375 Ballardvale 375 Ballardvale Wilmington MA 01887
Street Street
33 8902 PW Gateway Mobile Home 10100 Gandy Blvd. St. Petersburg FL 33716
Park North
34 9529 PW Lake Cook Office 4201 Lake Cook Road Northbrook IL 60062
35 10216 PW Pine Terrace 838 Pine Avenue Long Beach CA 90813
Apartments
37 8997 PW Shoppers Food 1320 Carl D. Fredericksburg VA 22401
Warehouse Silver Parkway
42 9865 PW 400 Blair Road 400 Blair Road Carteret NJ 07008
43 7222 PW 14 Jewel Drive 14 Jewel Drive Wilmington MA 01887
45 7223 PW 87 Concord & 7 Lopez Portfolio
45A 7223A PW 87 Concord Road 87 Concord Road North Reading MA 01864
45B 7223B PW 7 Lopez Road 7 Lopez Road Wilmington MA 01887
51 4459A PW Days Inn Fort Wright 1945 Dixie Highway Fort Wright KY 41011
52 4459B PW Days Inn Frankfort 1051 US Highway Frankfort KY 40601
127 South
53 4459C PW Days Inn 120 South Lakeview Shepherdsville KY 40165
Shepherdsville Drive
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER ORIGINAL MORTGAGE RATE NOTE DATE CUT-OFF DATE MONTHLY DEBT ORIGINAL TERM
NUMBER BALANCE BALANCE SERVICE TO MATURITY
PAYMENT /ARD (MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
2 10651 29,200,000 8.4500% 04/07/00 29,159,803 223,488.84 120
5 10388 19,300,000 8.4500% 05/04/00 19,280,819 147,716.94 120
9 11128 15,300,000 8.8900% 06/02/00 15,295,228 121,898.23 120
10 11539 15,250,000 8.2400% 06/29/00 15,243,746 114,460.97 120
12 10124 14,400,000 8.4300% 05/12/00 14,385,472 110,077.61 119
13 10959 14,100,000 9.1000% 05/22/00 14,088,419 114,467.79 120
13A 10959A
13B 10959B
13C 10959C
14 9913 12,600,000 8.8000% 12/27/99 12,558,042 99,574.55 120
17 11233A 8,610,000 8.6400% 06/30/00 8,606,999 67,059.61 120
18 11233B 1,495,000 8.7700% 06/30/00 1,494,508 11,782.53 120
19 11233C 1,565,000 8.7400% 06/30/00 1,564,478 12,300.69 120
28 7217 7,920,000 8.5500% 11/12/99 7,888,749 61,178.82 120
33 8902 6,850,000 8.4500% 09/13/99 6,815,006 52,428.03 120
34 9529 6,700,000 9.0000% 05/17/00 6,694,327 53,909.72 120
35 10216 6,525,000 8.3500% 04/20/00 6,515,732 49,479.61 120
37 8997 6,300,000 8.5000% 12/01/99 6,274,789 48,441.55 120
42 9865 6,000,000 8.3800% 06/19/00 5,997,671 45,625.51 120
43 7222 5,760,000 8.5500% 11/12/99 5,737,272 44,493.69 120
45 7223 5,505,000 8.5500% 11/12/99 5,483,278 42,523.91 120
45A 7223A
45B 7223B
51 4459A 1,835,000 7.8000% 07/16/98 1,788,065 13,920.57 120
52 4459B 2,255,000 7.8000% 07/16/98 2,197,322 17,106.75 120
53 4459C 1,215,000 7.8000% 07/16/98 1,183,923 9,217.16 120
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER REMAINING TERM SCHEDULED STATED ORIGINAL CALCULATED CALCULATED LOAN
NUMBER TO MATURITY / MATURITY AMORTIZATION ORIGINAL REMAINING BALANCE AT
ARD (MONTHS) DATE TERM (MONTHS) AMORTIZATION AMORTIZATION MATURITY/ARD
TERM (MONTHS) TERM (MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
2 10651 117 05/01/30 360 360 357 26,391,631
5 10388 118 06/01/10 360 360 358 17,440,104
9 11128 119 07/01/10 360 360 359 13,963,921
10 11539 119 07/01/10 360 360 359 13,716,170
12 10124 117 05/01/10 359 359 357 13,009,262
13 10959 118 06/01/10 360 360 358 12,924,549
13A 10959A
13B 10959B
13C 10959C
14 9913 113 01/01/10 360 360 353 11,477,006
17 11233A 119 07/01/10 360 360 359 7,814,949
18 11233B 119 07/01/10 360 360 359 1,360,869
19 11233C 119 07/01/10 360 360 359 1,423,646
28 7217 112 12/01/09 360 360 352 7,175,706
33 8902 110 10/01/09 360 360 350 6,192,479
34 9529 118 06/01/10 360 360 358 6,128,349
35 10216 117 05/01/10 360 360 357 5,883,955
37 8997 112 12/01/29 360 360 352 5,701,497
42 9865 119 07/01/30 360 360 359 5,414,010
43 7222 112 12/01/09 360 360 352 5,218,695
45 7223 112 12/01/09 360 360 352 4,987,659
45A 7223A
45B 7223B
51 4459A 96 08/01/08 300 300 276 1,504,071
52 4459B 96 08/01/08 300 300 276 1,848,327
53 4459C 96 08/01/08 300 300 276 995,883
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN CROSS ANTICIPATED DEFEASE START DEFEASE END OWNER-SHIP INTEREST
NUMBER NUMBER COLLATERALIZED REPAYMENT DATE DATE DATE INTEREST Accrual
(MORTGAGE LOAN Method
GROUP)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
2 10651 No 05/01/10 05/01/04 04/30/10 Fee Simple Actual/360
5 10388 No NAP 06/01/04 05/31/10 Fee Simple Actual/360
9 11128 No NAP 07/01/04 03/31/10 Fee Simple Actual/360
10 11539 No NAP 09/01/02 06/30/10 Fee Simple Actual/360
12 10124 No NAP 06/01/04 04/30/10 Fee Simple Actual/360
13 10959 No NAP 09/01/02 05/31/10 Actual/360
13A 10959A Fee Simple
13B 10959B Fee Simple
13C 10959C Fee Simple
14 9913 No NAP 01/01/04 12/31/09 Fee Simple Actual/360
17 11233A Yes (b) NAP 09/01/02 06/30/10 Fee Simple Actual/360
18 11233B Yes (b) NAP 09/01/02 06/30/10 Fee Simple Actual/360
19 11233C Yes (b) NAP 09/01/02 06/30/10 Fee Simple Actual/360
28 7217 No NAP 12/01/03 11/30/09 Fee Simple Actual/360
33 8902 No NAP 10/01/03 09/30/09 Fee Simple Actual/360
34 9529 No NAP 06/01/04 05/31/10 Fee Simple Actual/360
35 10216 No NAP 05/01/04 04/30/10 Fee Simple Actual/360
37 8997 No 12/01/09 01/01/04 11/30/09 Fee Simple Actual/360
42 9865 No 07/01/10 07/01/04 03/31/10 Fee Simple Actual/360
43 7222 No NAP 12/01/03 11/30/09 Fee Simple Actual/360
45 7223 No NAP 12/01/03 11/30/09 Actual/360
45A 7223A Fee Simple
45B 7223B Fee Simple
51 4459A Yes (d) NAP 09/01/03 01/31/08 Fee Simple Actual/360
52 4459B Yes (d) NAP 09/01/03 01/31/08 Fee Simple Actual/360
53 4459C Yes (d) NAP 09/01/03 01/31/08 Fee Simple Actual/360
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER MASTER YIELD MAINTENANCE CTL LOAN RELATED CREDIT GUARANTOR RATED PARTY CTL LEASE
NUMBER SERVICING FEE CALCULATION METHOD TENANT ENHANCEMENT
RATE POLICY
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
2 10651 0.0500% NAP No
5 10388 0.0500% NAP No
9 11128 0.0500% NAP No
10 11539 0.0500% NAP No
12 10124 0.0500% NAP No
13 10959 0.0500% NAP No
13A 10959A
13B 10959B
13C 10959C
14 9913 0.0500% NAP No
17 11233A 0.0500% NAP No
18 11233B 0.0500% NAP No
19 11233C 0.0500% NAP No
28 7217 0.0500% NAP No
33 8902 0.0500% NAP No
34 9529 0.0500% NAP No
35 10216 0.0500% NAP No
37 8997 0.0500% NAP No
42 9865 0.0500% NAP No
43 7222 0.0500% NAP No
45 7223 0.0500% NAP No
45A 7223A
45B 7223B
51 4459A 0.0500% NAP No
52 4459B 0.0500% NAP No
53 4459C 0.0500% NAP No
</TABLE>
<PAGE> 278
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER MORTGAGE LOAN / PROPERTY PROPERTY ADDRESS CITY STATE ZIP CODE
NUMBER LOAN SELLER NAME
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Ville Drive
61 9430 PW Cayuga Village 9370 Niagara Falls Niagara Falls NY 14304
Mobile Home Park Boulevard
64 7220 PW 155 West Street 155 West Street Wilmington MA 01887
70 8686 PW 131 Spring Street 131-137 Spring New York NY 10012
Street
72 10142 PW Jackson Professional 209-211 Gibson Leesburg VA 20176
Street
74 7218 PW 377 Ballardvale &
315 New Boston Portfolio
74A 7218A PW 377 Ballardvale 377 Ballardvale Wilmington MA 01887
Street Street
74B 7218B PW 315 New Boston 315 New Boston Woburn MA 01801
Street Street
77 10593 PW Plimpton and Hills
Portfolio
77A 10593A PW 114-146 Kings 114-146 Kings Fairfield CT 06432
Highway East Highway East
77B 10593B PW 1 Maxim Road 1 Maxim Road Hartford CT 06146
78 9133 PW 4444 West Bristol 4444 West Bristol Flint MI 48507
Road Road
81 10851 PW RPM Warehouse 11150 N.W. 32nd Miami FL 33167
Avenue
82 9583 PW Deere Road 6392-6402-6412 Syracuse NY 13206
Warehouse Buildings Deere Road
84 10065 PW SunTrust Centre 1890 University Coral Springs FL 33071
Drive
91 10094 PW Congress 1620 S. Congress Palm Springs FL 33437
Professional Center Avenue
III
92 10105 PW Keystone Building 3520 Fifth Avenue Pittsburgh PA 15213
93 10939 PW 4621 W. Napoleon 4621 W. Napoleon Metairie LA 70001
94 10762 PW Balboa Pointe 6626 Hayvenhurst Van Nuys CA 91406
Apartments Avenue
98 7585 PW Burke Village Center 9570 Burke Road Burke VA 22015
103 9925 PW Eckerds - 178 North Main Gloversville NY 12078
Gloversville Street
109 10003 PW CVS - Murfreesboro 607 Southeast Murfreesboro TN 37130
Broad Street
110 7592 PW La Quinta Gardens 4505 Aldine Mail Houston TX 77039
Route
111 7042 PW Urban Outfitters 231-33 S. State Ann Arbor MI 48104
Ann Arbor Street
113 8988 PW South Meadows 9475 Double R Reno NV 89511
Boulevard
116 9998 PW Esquire Apartments 3102 Buford Highway Atlanta GA 30329
118 8574 PW Falcon Cove 13300 Biscayne Dr. Homestead FL 33033
Apartments
122 10193 PW Avenue J Warehouse 1201 Avenue J East Grand Prairie TX 75050
125 8696 PW Texas Tech Office 6901 Quaker Avenue Lubbock TX 79423
Building
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER ORIGINAL MORTGAGE RATE NOTE DATE CUT-OFF DATE MONTHLY DEBT ORIGINAL TERM
NUMBER BALANCE BALANCE SERVICE TO MATURITY
PAYMENT /ARD (MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
61 9430 4,250,000 8.8000% 12/30/99 4,235,847 33,586.65 120
64 7220 4,030,000 8.5500% 11/12/99 4,014,098 31,130.13 120
70 8686 3,651,000 7.8500% 12/15/99 3,635,391 26,408.96 120
72 10142 3,600,000 8.9000% 06/07/00 3,598,882 28,707.76 120
74 7218 3,415,000 8.5500% 11/12/99 3,401,525 26,379.50 120
74A 7218A
74B 7218B
77 10593 3,200,000 8.5000% 04/06/00 3,195,664 24,605.23 120
77A 10593A
77B 10593B
78 9133 3,200,000 9.1500% 01/28/00 3,191,269 26,094.05 120
81 10851 3,100,000 8.6400% 06/16/00 3,098,919 24,144.57 120
82 9583 3,040,000 9.1500% 02/24/00 3,034,181 24,789.34 120
84 10065 2,962,500 8.4500% 03/13/00 2,956,569 22,674.17 120
91 10094 2,650,000 8.5000% 05/10/00 2,647,403 20,376.21 120
92 10105 2,650,000 8.5000% 02/29/00 2,643,761 20,376.21 120
93 10939 2,636,000 8.7100% 05/30/00 2,633,568 20,662.16 120
94 10762 2,625,000 8.3500% 03/28/00 2,619,596 19,905.59 120
98 7585 2,565,000 8.7000% 03/14/00 2,556,523 21,000.92 120
103 9925 2,428,387 8.9300% 02/02/00 2,409,906 22,073.16 232
109 10003 2,187,876 8.7300% 03/08/00 2,178,865 18,409.00 238
110 7592 2,165,000 8.2500% 09/23/99 2,153,314 16,264.92 120
111 7042 2,100,000 8.9500% 11/01/99 2,091,391 16,821.58 120
113 8988 2,000,000 9.0000% 12/30/99 1,993,702 16,092.45 120
116 9998 1,982,000 8.6000% 02/10/00 1,977,474 15,380.55 120
118 8574 1,950,000 8.7000% 12/29/99 1,943,325 15,271.07 120
122 10193 1,900,000 8.3500% 03/28/00 1,896,089 14,407.86 120
125 8696 1,850,000 8.4500% 11/04/99 1,842,492 14,159.40 120
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER REMAINING TERM SCHEDULED STATED ORIGINAL CALCULATED CALCULATED LOAN
NUMBER TO MATURITY / MATURITY AMORTIZATION ORIGINAL REMAINING BALANCE AT
ARD (MONTHS) DATE TERM (MONTHS) AMORTIZATION AMORTIZATION MATURITY/ARD
TERM (MONTHS) TERM (MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
61 9430 113 01/01/10 360 360 353 3,871,212
64 7220 112 12/01/09 360 360 352 3,651,275
70 8686 113 01/01/10 360 360 353 3,253,564
72 10142 119 07/01/10 360 360 359 3,286,343
74 7218 112 12/01/09 360 360 352 3,094,070
74A 7218A
74B 7218B
77 10593 117 05/01/30 360 360 357 2,895,521
77A 10593A
77B 10593B
78 9133 114 02/01/30 360 360 354 2,936,114
81 10851 119 07/01/10 360 360 359 2,813,745
82 9583 115 03/01/10 360 360 355 2,790,375
84 10065 116 04/01/10 360 360 356 2,677,138
91 10094 118 06/01/10 360 360 358 2,397,342
92 10105 115 03/01/10 360 360 355 2,397,968
93 10939 118 06/01/10 360 360 358 2,395,903
94 10762 116 04/01/10 360 360 356 2,366,731
98 7585 116 04/01/10 300 300 296 2,155,923
103 9925 227 07/01/19 232 232 227 0
109 10003 234 02/01/20 238 238 234 0
110 7592 110 10/01/09 360 360 350 1,948,186
111 7042 111 11/01/09 360 360 351 1,919,184
113 8988 113 01/01/10 360 360 353 1,829,671
116 9998 115 03/01/10 360 360 355 1,797,550
118 8574 113 01/01/10 360 360 353 1,772,293
122 10193 116 04/01/10 360 360 356 1,713,063
125 8696 112 12/01/09 360 360 352 1,672,347
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN CROSS ANTICIPATED DEFEASE START DEFEASE END OWNER-SHIP INTEREST
NUMBER NUMBER COLLATERALIZED REPAYMENT DATE DATE DATE INTEREST Accrual
(MORTGAGE LOAN Method
GROUP)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
61 9430 No NAP 01/01/04 12/31/09 Fee Simple Actual/360
64 7220 No NAP 12/01/03 11/30/09 Fee Simple Actual/360
70 8686 No NAP 01/01/04 12/31/09 Fee Simple Actual/360
72 10142 No NAP 07/01/04 06/30/10 Leasehold Actual/360
74 7218 No NAP 12/01/03 11/30/09 Actual/360
74A 7218A Fee Simple
74B 7218B Fee Simple
77 10593 No 05/01/10 05/01/04 01/31/10 Actual/360
77A 10593A Fee Simple
77B 10593B Fee Simple
78 9133 No 02/01/10 09/01/02 01/31/10 Fee Simple Actual/360
81 10851 No NAP 07/01/04 06/30/10 Fee Simple Actual/360
82 9583 No NAP 03/01/04 02/28/10 Fee Simple Actual/360
84 10065 No NAP 04/01/04 03/31/10 Fee Simple Actual/360
91 10094 No NAP 06/01/04 05/31/10 Fee Simple Actual/360
92 10105 No NAP 03/01/04 02/28/10 Fee Simple Actual/360
93 10939 No NAP 09/01/02 05/31/10 Fee Simple Actual/360
94 10762 No NAP 09/01/02 03/31/10 Fee Simple Actual/360
98 7585 No NAP 04/01/04 03/31/10 Fee Simple Actual/360
103 9925 No NAP 03/01/04 06/30/19 Fee Simple Actual/360
109 10003 No NAP 04/01/04 01/31/20 Fee Simple Actual/360
110 7592 No NAP 10/01/03 09/30/09 Fee Simple Actual/360
111 7042 No NAP 12/01/03 10/31/09 Fee Simple Actual/360
113 8988 No NAP 01/01/04 12/31/09 Fee Simple Actual/360
116 9998 No NAP 09/01/02 02/28/10 Fee Simple Actual/360
118 8574 No NAP 01/01/04 12/31/09 Fee Simple Actual/360
122 10193 No NAP 04/01/04 03/31/10 Fee Simple Actual/360
125 8696 No NAP 12/01/03 11/30/09 Fee Simple Actual/360
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER MASTER YIELD MAINTENANCE CTL LOAN RELATED CREDIT GUARANTOR RATED PARTY CTL LEASE
NUMBER SERVICING FEE CALCULATION METHOD TENANT ENHANCEMENT
RATE POLICY
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
61 9430 0.0500% NAP No
64 7220 0.0500% NAP No
70 8686 0.0500% NAP No
72 10142 0.0500% NAP No
74 7218 0.0500% NAP No
74A 7218A
74B 7218B
77 10593 0.0500% NAP No
77A 10593A
77B 10593B
78 9133 0.0500% NAP No
81 10851 0.0500% NAP No
82 9583 0.0500% NAP No
84 10065 0.0500% NAP No
91 10094 0.0500% NAP No
92 10105 0.0500% NAP No
93 10939 0.0500% NAP No
94 10762 0.0500% NAP No
98 7585 0.0500% NAP No
103 9925 0.0500% NAP Yes Fay's Eckerd JC Penney CO. NO
Incorporated Corporation
109 10003 0.0500% NAP Yes Hook - SupeRx, CVS CVS NO
Inc. Corporation Corporation
110 7592 0.0500% NAP No
111 7042 0.0500% NAP No
113 8988 0.0500% NAP No
116 9998 0.0500% NAP No
118 8574 0.0500% NAP No
122 10193 0.0500% NAP No
125 8696 0.0500% NAP No
</TABLE>
2
<PAGE> 279
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER MORTGAGE LOAN / PROPERTY PROPERTY ADDRESS CITY STATE ZIP CODE
NUMBER LOAN SELLER NAME
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
127 10117 PW Des Moines Apartments
Portfolio
127A 10117A PW Capital Hills 816 East Lyon Des Moines IA 50309
Apartments Street
127B 10117B PW Lyon Manor 906 East Lyon Des Moines IA 50316
Apartments Street
127C 10117C PW Silhouette 3710 57th Street Des Moines IA 50310
Apartments
128 10611 PW 69-75 Lehigh Avenue 69-75 Lehigh Avenue Paterson NJ 07503
131 8951 PW North Park 4436 Lawrence Las Vegas NV 89031
Industrial Street
132 9381 PW Midwood Medical 1915 & 1917 Ocean Brooklyn NY 11230
Center Avenue
144 9165 PW Jupiter Corporate 825 Highway One Jupiter FL 33477
Center
147 9809 PW Carrington Heights &
Plaza Apts Portfolio
147A 9809A PW Carrington Heights 1855 Burnet Avenue Syracuse NY 13206
Apartments
147B 9809B PW Plaza Apartments 1108 E. Genesee Syracuse NY 13210
149 10326 PW Pond Street & North
Court Apts.
Portfolio
149A 10326A PW Pond Street 800 Pond Street Syracuse NY 13208
Apartments
149B 10326B PW North Court 1106 & 1109 First Syracuse NY 13208
Apartments North Street
151 7368 PW Paradise Palm 1360 North Dixie St. George UT 84770
Mobile Home Park Downs
163 9792 PW 85 Second Avenue 85 Second Avenue New York NY 10003
167 9370 PW St. James Apartments 1226 & 1314 James Waco TX 76706
Avenue
170 9835 PW CVS - Lowell 1815 Middlesex Road Lowell MA 01851
174 10809 PW Ivory Garden 183-189 Ivory Owego NY 13827
Apartments Foster Road
182 7221 PW 10 Jewel Drive 10 Jewel Drive Wilmington MA 01887
186 9369 PW Pine Street 3927-3931 Pine Philadelphia PA 19104
Apartments Street
192 9510 PW Reading Business 8711 Reading Road Reading OH 45215
Center
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER ORIGINAL MORTGAGE RATE NOTE DATE CUT-OFF DATE MONTHLY DEBT ORIGINAL TERM
NUMBER BALANCE BALANCE SERVICE TO MATURITY
PAYMENT /ARD (MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
127 10117 1,717,000 8.8000% 01/11/00 1,711,866 13,569.01 120
127A 10117A
127B 10117B
127C 10117C
128 10611 1,700,000 8.8000% 04/26/00 1,696,099 14,034.24 120
131 8951 1,650,000 8.3500% 09/30/99 1,641,334 12,512.09 120
132 9381 1,630,000 8.6500% 11/30/99 1,618,960 13,290.38 120
144 9165 1,400,000 8.4000% 10/19/99 1,393,323 10,665.73 120
147 9809 1,330,000 8.9500% 03/31/00 1,325,826 11,115.81 120
147A 9809A
147B 9809B
149 10326 1,300,000 8.4000% 04/03/00 1,298,182 9,903.89 120
149A 10326A
149B 10326B
151 7368 1,280,000 8.6000% 10/07/99 1,274,215 9,932.95 120
163 9792 1,149,000 9.4000% 01/14/00 1,146,069 9,577.69 120
167 9370 1,100,000 8.5000% 12/17/99 1,096,026 8,458.05 120
170 9835 1,083,750 8.8500% 03/03/00 1,081,816 8,603.39 120
174 10809 1,024,000 8.5000% 04/20/00 1,022,613 7,873.67 120
182 7221 925,000 8.5500% 11/12/99 921,350 7,145.25 120
186 9369 917,000 8.6000% 11/30/99 910,726 7,445.83 120
192 9510 807,000 8.8000% 12/30/99 804,313 6,377.51 120
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER REMAINING TERM SCHEDULED STATED ORIGINAL CALCULATED CALCULATED LOAN
NUMBER TO MATURITY / MATURITY AMORTIZATION ORIGINAL REMAINING BALANCE AT
ARD (MONTHS) DATE TERM (MONTHS) AMORTIZATION AMORTIZATION MATURITY/ARD
TERM (MONTHS) TERM (MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
127 10117 114 02/01/10 360 360 354 1,563,610
127A 10117A
127B 10117B
127C 10117C
128 10611 117 05/01/25 300 300 297 1,433,048
131 8951 110 10/01/09 360 360 350 1,488,204
132 9381 112 12/01/09 300 300 292 1,368,652
144 9165 111 11/01/09 360 360 351 1,263,909
147 9809 116 04/01/10 300 300 296 1,125,452
147A 9809A
147B 9809B
149 10326 117 05/01/10 360 360 357 1,173,629
149A 10326A
149B 10326B
151 7368 111 11/01/09 360 360 351 1,160,817
163 9792 114 02/01/10 360 360 354 1,059,751
167 9370 113 01/01/10 360 360 353 995,288
170 9835 116 04/01/30 360 360 356 988,123
174 10809 117 05/01/10 360 360 357 926,567
182 7221 112 12/01/09 360 360 352 838,072
186 9369 112 12/01/09 300 300 292 768,915
192 9510 113 01/01/10 360 360 353 735,075
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN CROSS ANTICIPATED DEFEASE START DEFEASE END OWNER-SHIP INTEREST
NUMBER NUMBER COLLATERALIZED REPAYMENT DATE DATE DATE INTEREST Accrual
(MORTGAGE LOAN Method
GROUP)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
127 10117 No NAP 02/01/04 01/31/10 Actual/360
127A 10117A Fee Simple
127B 10117B Fee Simple
127C 10117C Fee Simple
128 10611 No 05/01/10 09/01/02 04/30/10 Fee Simple Actual/360
131 8951 No NAP 10/01/03 09/30/09 Fee Simple Actual/360
132 9381 No NAP 12/01/03 11/30/09 Fee Simple Actual/360
144 9165 No NAP 11/01/03 10/31/09 Fee Simple Actual/360
147 9809 No NAP 04/01/04 03/31/10 Actual/360
147A 9809A Fee Simple
147B 9809B Fee Simple
149 10326 No NAP 05/01/04 04/30/10 Actual/360
149A 10326A Fee Simple
149B 10326B Fee Simple
151 7368 No NAP 11/01/03 10/31/09 Fee Simple Actual/360
163 9792 No NAP 02/01/04 01/31/10 Fee Simple Actual/360
167 9370 No NAP 01/01/04 12/31/09 Fee Simple Actual/360
170 9835 No 04/01/10 09/01/02 01/31/10 Fee Simple Actual/360
174 10809 No NAP 09/01/02 04/30/10 Fee Simple Actual/360
182 7221 No NAP 12/01/03 11/30/09 Fee Simple Actual/360
186 9369 No NAP 12/01/03 11/30/09 Fee Simple Actual/360
192 9510 No NAP 01/01/04 12/31/09 Fee Simple Actual/360
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN NUMBER MASTER YIELD MAINTENANCE CTL LOAN RELATED CREDIT GUARANTOR RATED PARTY CTL LEASE
NUMBER SERVICING FEE CALCULATION METHOD TENANT ENHANCEMENT
RATE POLICY
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
127 10117 0.0500% NAP No
127A 10117A
127B 10117B
127C 10117C
128 10611 0.0500% NAP No
131 8951 0.0500% NAP No
132 9381 0.0500% NAP No
144 9165 0.0500% NAP No
147 9809 0.0500% NAP No
147A 9809A
147B 9809B
149 10326 0.0500% NAP No
149A 10326A
149B 10326B
151 7368 0.0500% NAP No
163 9792 0.0500% NAP No
167 9370 0.0500% NAP No
170 9835 0.0500% NAP No
174 10809 0.0500% NAP No
182 7221 0.0500% NAP No
186 9369 0.0500% NAP No
192 9510 0.0500% NAP No
</TABLE>
3
<PAGE> 280
EXHIBIT B-1C
SCHEDULE OF AMCC MORTGAGE LOANS
[See Attached Schedule]
<PAGE> 281
SCHEDULE OF AMCC MORTGAGE LOANS
<TABLE>
<CAPTION>
Control Loan Mortgage Loan/ Property City State Zip Original Mort-
Number Number Loan Property Address Code Balance gage
Seller Name Rate
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
15 010-00000572 AMCC Senter Road 1875 and 1879 Senter San Jose CA 95112 12,600,000 7.9000%
Industrial Road
Property
16 010-00000574 AMCC Scottsdale 8901 East Mountain Scottsdale AZ 85258 11,895,000 8.3500%
Gateway II View Road
38 010-00000479 AMCC Computer 200 Commerce Drive Newark DE 19713 6,225,000 8.1500%
Science
Corp
Building
39 010-00000558 AMCC Sprint 8525 Silver Crossing Oklahoma OK 73162 6,200,000 8.1000%
Customer City
Care Center
46 010-00000518 AMCC National 1852 Rutan Drive Livermore CA 94550 5,450,000 8.1000%
Refractories
& Minerals
Corporation
65 010-00000562 AMCC Lexington 130 New Circle Road Lexington KY 40505 3,963,110 8.0500%
Kmart NW
66 010-00000560 AMCC Niagara 2590 Military Road Niagara NY 14304 3,855,899 8.0500%
Kmart
85 010-00000439 AMCC Lynnwood 19231 36th Avenue Lynnwood WA 98036 900,000 7.5000%
Business West
Center
86 010-00000440 AMCC Quad 95 14671-14799 NE 95th Redmond WA 98052 2,100,000 7.5000%
Street
100 010-00000579 AMCC Foothills 3233 East Chandler Phoenix AZ 85044 2,520,000 8.7000%
Village Boulevard
Centre
104 010-00000535 AMCC Dover 1140 Fort Campbell Clarksville TN 37042 2,400,000 8.2000%
Crossing Boulevard
Shopping
Center
105 010-00000466 AMCC Plainville 13 Taunton Street Plainville MA 2762 2,383,733(#) 8.2500%
Crossing
106 010-00000596 AMCC Staples - 1207 NW Sheridan Road Lawton OK 73505 2,325,000 8.6000%
Lawton
108 010-00000450 AMCC Kalevala 5500 SW 180th Avenue Aloha OR 97007 2,280,000 7.6000%
Village
Apartments
112 010-00000570 AMCC Kolstad 8501 Naples Street NE Blaine MN 55449 2,080,000 8.4500%
Great Dane
Warehouse
114 010-00000537 AMCC Pederson- 55 Horizon Drive Huntington NY 11743 2,000,000 7.8000%
Krag Center
Building
117 010-00000569 AMCC Rigid 18933 Aldine Houston TX 77073 2,000,000 9.1000%
Building Westfield Road
Systems
123 010-00000257 AMCC Kiely Plaza 1052-1090 Kiely Santa Clara CA 95051 2,000,000 7.7500%
Shopping Boulevard
Center
126 010-00000520 AMCC The Village 2801 23rd Avenue Fargo ND 58103 1,810,000 8.0500%
Apartments Southwest
129 010-00000581 AMCC Henderson 2223 112 Avenue NE Bellevue WA 98004 1,675,000 8.9000%
Building
130 010-00000188 AMCC Park Plaza 3100 Mowry Avenue Fremont CA 94538 1,800,000 7.1500%
133 020-00000037 AMCC Southcenter 16901 Southcenter Tukwila WA 98188 1,650,000 7.1500%
Strip Retail Parkway
Center
134 010-00000498 AMCC Fair Oaks 12 South Fair Oaks Pasadena CA 91103 1,600,000 7.8000%
Office/ Avenue
Retail
Building
135 010-00000464 AMCC Southview 1033-1057 College Grand Rapids MI 49503 1,575,000 7.4000%
Apartments Avenue NE
137 010-00000386 AMCC Hafner Court 8011-8082 Hafner University MO 63130 1,580,000 7.1000%
Apartments Court & 1215-1229 City
Westover Court
138 010-00000543 AMCC Loma Vista 4676-4696 Market San Diego CA 92102 1,500,000 8.6000%
Center Street
139 010-00000490 AMCC Carroll Road 7565-7595 Carroll San Diego CA 92121 1,500,000 8.2000%
Warehouse Road
140 010-00000401 AMCC Sandalwood 1624 South Fresno Fort Smith AR 72903 1,550,000 7.1500%
Apartments Street
</TABLE>
<TABLE>
<CAPTION>
Control Loan Note Cut-off Monthly Original Remaining Scheduled Stated Calcu- Calcu-
Number Number Date Date Debt Term to Term to Maturity Original lated lated
Balance Service Maturity/ Maturity Date Amort- Original Remaining
Payment ARD ARD ization Amort- Amort-
(months) (months) Term ization ization
(months) Term Term
(months) (months)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
15 010-00000572 11/30/1999 12,540,663 91,577.49 120 112 12/1/2009 360 360 352
16 010-00000574 12/28/1999 11,850,277 90,200.77 120 113 1/1/2010 360 360 353
38 010-00000479 12/22/1999 6,200,342 46,329.45 120 113 1/1/2010 360 360 353
39 010-00000558 12/16/1999 6,175,123 45,926.36 120 113 1/1/2010 360 360 353
46 010-00000518 9/29/1999 5,419,369 40,370.75 120 110 10/1/2009 360 360 350
65 010-00000562 12/13/1999 3,947,003 29,218.16 120 113 1/1/2010 360 360 353
66 010-00000560 12/13/1999 3,840,228 28,427.74 120 113 1/1/2010 360 360 353
85 010-00000439 5/4/1999 886,397 6,650.93 120 106 6/1/2009 300 300 286
86 010-00000440 5/4/1999 2,068,260 15,518.82 120 106 6/1/2009 300 300 286
100 010-00000579 2/17/2000 2,514,420 19,734.93 60 55 3/1/2005 360 360 355
104 010-00000535 9/23/1999 2,386,869 17,946.11 120 110 10/1/2009 360 360 350
105 010-00000466 7/19/1999 2,368,545 19,711.26 113 108 8/1/2009 293 260 255
106 010-00000596 5/9/2000 2,322,786 18,042.28 120 118 6/1/2010 360 360 358
108 010-00000450 4/28/1999 2,243,900 16,997.59 120 105 5/1/2009 300 300 285
112 010-00000570 12/20/1999 2,066,956 16,678.70 180 173 1/1/2015 300 300 293
114 010-00000537 9/24/1999 1,979,853 15,172.29 120 110 10/1/2009 300 300 290
117 010-00000569 2/4/2000 1,974,122 20,566.09 180 175 3/1/2015 180 177 172
123 010-00000257 7/1/1998 1,877,073 17,668.43 204 180 8/1/2015 204 204 180
126 010-00000520 11/29/1999 1,776,439 16,440.43 204 196 12/1/2016 204 201 193
129 010-00000581 3/6/2000 1,669,689 13,942.02 120 116 4/1/2010 300 300 296
130 010-00000188 6/12/1998 1,649,377 16,330.24 180 155 7/1/2013 180 180 155
133 020-00000037 10/27/1998 1,580,644 12,941.42 240 219 11/1/2018 240 240 219
134 010-00000498 7/29/1999 1,580,531 12,137.83 120 108 8/1/2009 300 300 288
135 010-00000464 6/4/1999 1,552,733 11,536.86 120 107 7/1/2009 300 300 287
137 010-00000386 10/30/1998 1,527,284 11,843.59 120 99 11/1/2008 264 264 243
138 010-00000543 10/28/1999 1,488,222 12,179.66 120 111 11/1/2009 300 300 291
139 010-00000490 8/23/1999 1,484,375 11,776.68 120 109 9/1/2009 300 300 289
140 010-00000401 12/15/1998 1,478,987 12,776.47 216 197 1/1/2017 216 216 197
</TABLE>
<TABLE>
<CAPTION>
Control Loan Loan Cross Antici- Defease Defease Ownership Interest Master Yield
Number Number Balance at Collater- pated Start End Date Interest Accrual Servic- Maintenance
Maturity/ alized Repay- Date Method ing Fee Calculation
ARD (Mortgage ment Rate Method
Loan Date
Group)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
15 010-00000572 11,244,027 No NAP 1/1/2005 9/30/2009 Fee Simple Actual/360 0.0500% NAP
16 010-00000574 10,725,940 No NAP 2/1/2004 9/30/2009 Fee Simple Actual/360 0.0500% NAP
38 010-00000479 5,587,186 No NAP 2/1/2003 9/30/2009 Fee Simple Actual/360 0.0500% NAP
39 010-00000558 5,558,205 No NAP 2/1/2005 9/30/2009 Fee Simple Actual/360 0.0500% NAP
46 010-00000518 4,886,979 No NAP 11/1/2002 7/31/2009 Fee Simple Actual/360 0.0500% NAP
65 010-00000562 3,548,667 No NAP 2/1/2005 9/30/2009 Fee Simple Actual/360 0.0500% NAP
66 010-00000560 3,452,668 No NAP 2/1/2005 9/30/2009 Fee Simple Actual/360 0.0500% NAP
85 010-00000439 731,259 Yes(f) NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
86 010-00000440 1,706,274 Yes(f) NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
100 010-00000579 2,430,087 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
104 010-00000535 2,157,133 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
105 010-00000466 1,856,737 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
106 010-00000596 2,108,063 No NAP 7/1/2005 2/28/2010 Fee Simple Actual/360 0.0500% NAP
108 010-00000450 1,858,433 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
112 010-00000570 1,417,446 No NAP 2/1/2005 9/30/2014 Fee Simple Actual/360 0.0500% NAP
114 010-00000537 1,639,424 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
117 010-00000569 0 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
123 010-00000257 0 No NAP NAP NAP Fee Simple 30/360 0.0500% Present Value
Type 2
126 010-00000520 0 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
129 010-00000581 1,415,496 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
130 010-00000188 0 No NAP NAP NAP Fee Simple 30/360 0.0500% Present Value
Type 2
133 020-00000037 0 No NAP NAP NAP Leasehold 30/360 0.0500% Present Value
Type 2
134 010-00000498 1,311,595 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
135 010-00000464 1,276,041 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
137 010-00000386 1,167,023 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
138 010-00000543 1,257,524 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
139 010-00000490 1,243,622 No NAP NAP NAP Fee Simple Actual/360 0.0500% Present Value
Type 2
140 010-00000401 0 No NAP NAP NAP Fee Simple 30/360 0.0500% Present Value
Type 2
</TABLE>
<PAGE> 282
SCHEDULE OF AMCC MORTGAGE LOANS
<TABLE>
<CAPTION>
Control Loan Mortgage Loan/ Property City State Zip Original Mort-
Number Number Loan Property Address Code Balance gage
Seller Name Rate
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
143 010-00000281 AMCC Greenway 4002-4024 South Yale Tulsa OK 74135 1,470,000 7.30%
Village Avenue
Shopping
Center
145 010-00000504 AMCC Banneker 5840 Banneker Road Columbia MD 21044 1,400,000 8.00%
Building
146 010-00000333 AMCC 3975 3975 Landmark Street Culver City CA 90232 1,375,000 7.40%
Landmark
Street
148 010-00000370 AMCC 88 Sunnyside 88 Sunnyside Plainview NY 11803 1,350,000 7.50%
Building Boulevard
150 010-00000452 AMCC Plaza 6050-6080 West 92nd Westminister CO 80030 1,300,000 8.20%
Northwest Avenue
Shopping
Center
152 020-00000043 AMCC Kennewick 3321 West Kennewick Kennewick WA 99336 1,300,000 7.20%
Square Avenue
153 010-00000311 AMCC Party City 2525 State Highway 6 Houston TX 77082 1,285,000 7.50%
154 010-00000308 AMCC Blue Devils 4065 Nelson Avenue Concord CA 94520 1,350,000 7.40%
Building
155 020-00000054 AMCC Schuck's 3402 Kitsap Way Bremerton WA 98312 1,275,000 7.90%
Retail
Center
156 010-00000550 AMCC Northwood 2927 Julia Street Coeur ID 83815 1,250,000 8.25%
Estates D'Alene
157 010-00000280 AMCC Miramar 6904 Miramar Road San Diego CA 92121 1,300,000 7.50%
Commerce
Center
158 010-00000462 AMCC South Bay 2765 Main Street Chula Vista CA 91911 1,250,000 8.30%
Industrial
159 010-00000378 AMCC Bloomfield 61-81 West Long Lake Bloomfield MI 48304 1,250,000 6.95%
Center Road Hills
160 020-00000064 AMCC Park Willow 160 Park Street Reno NV 89502 1,210,000 8.25%
Apartments
161 020-00000022 AMCC Belmond 12700 Bel-Red Road Bellevue WA 98005 1,300,000 7.45%
Center
162 010-00000446 AMCC Riverwood 506 West Orchard Lane Carlsbad NM 88220 1,200,000 8.60%
Apartments
164 020-00000034 AMCC PGE 14655 & 14725 SW 72nd Tigard OR 97224 1,200,000 7.30%
Buildings Avenue
165 010-00000312 AMCC Carroll 7030-7054 Carroll San Diego CA 92121 1,141,000 7.40%
Canyon Road Canyon Road
Industrial
Condos
166 010-00000429 AMCC Myrex 9119 Weedy Lane Houston TX 77093 1,220,000 8.10%
Manufactur-
ing Plant &
Corporate
Offices
168 010-00000484 AMCC Walnut Creek 987 North Walnut Mansfield TX 76063 1,100,000 8.30%
Shopping Creek Drive
Center
169 010-00000465 AMCC Quail Hollow 12833 Covey Circle Sonora CA 95370 1,100,000 8.40%
Mini Storage
171 010-00000350 AMCC Freeway 2603-2645 East Jensen Fresno CA 93706 1,150,000 7.50%
Industries Avenue
Center
172 020-00000051 AMCC AT&T 18715-120th Avenue Bothell WA 98011 1,100,000 7.00%
Building N.E.
173 010-00000275 AMCC PBR III 720-730 West 17th Costa Mesa CA 92626 1,060,000 7.30%
Street
175 010-00000266 AMCC Knoxville 9126-9128 North Peoria IL 61615 1,065,000 7.70%
Square Lindbergh Drive
177 010-00000349 AMCC Larkfield 777 Larkfield Road Commack NY 11725 1,010,000 7.05%
Road Office
Building
178 010-00000528 AMCC Kings Kourt 2500 & 2504 South Sioux Falls SD 57105 990,000 8.05%
Apartments Dakota Avenue
</TABLE>
<TABLE>
<CAPTION>
Control Loan Note Cut-off Monthly Original Remaining Scheduled Stated Calcu- Calcu-
Number Number Date Date Debt Term to Term to Maturity Original lated lated
Balance Service Maturity/ Maturity Date Amort- Original Remaining
Payment ARD Date ization Amort- Amort-
(months) /ARD Term ization ization
(months) (months) Term Term
(months) (months)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
143 010-00000281 7/16/1998 1,428,903 10,672.67 120 96 8/1/2008 300 300 276
145 010-00000504 7/15/1999 1,390,238 10,272.71 120 108 8/1/2009 360 360 348
146 010-00000333 8/26/1998 1,326,621 10,563.39 120 97 9/1/2008 264 264 241
148 010-00000370 10/9/1998 1,318,223 9,976.39 120 99 11/1/2008 300 300 279
150 010-00000452 5/4/1999 1,282,786 10,206.46 120 106 6/1/2009 300 300 286
152 020-00000043 9/30/1998 1,266,282 9,354.66 120 98 10/1/2008 300 300 278
153 010-00000311 8/19/1998 1,251,703 9,496.04 144 121 9/1/2010 300 300 277
154 010-00000308 8/19/1998 1,248,696 12,438.08 180 157 9/1/2013 180 180 157
155 020-00000054 11/30/1998 1,248,616 9,756.35 120 100 12/1/2008 300 300 280
156 010-00000550 10/27/1999 1,244,639 9,390.84 120 112 12/1/2009 360 360 352
157 010-00000280 6/25/1998 1,240,127 10,472.72 120 95 7/1/2008 240 240 215
158 010-00000462 6/30/1999 1,235,138 9,897.43 120 107 7/1/2009 300 300 287
159 010-00000378 10/29/1998 1,217,630 8,794.91 120 99 11/1/2008 300 300 279
160 020-00000064 10/13/1999 1,199,831 9,540.25 120 111 11/1/2009 300 300 291
161 020-00000022 6/18/1998 1,193,708 12,014.26 180 155 7/1/2013 180 180 155
162 010-00000446 6/18/1999 1,174,346 10,489.96 240 227 7/1/2019 240 240 227
164 020-00000034 9/15/1998 1,113,460 10,988.21 180 158 10/1/2013 180 180 158
165 010-00000312 7/29/1998 1,109,656 8,357.82 120 96 8/1/2008 300 300 276
166 010-00000429 3/5/1999 1,108,351 14,866.52 120 104 4/1/2009 120 120 104
168 010-00000484 7/29/1999 1,092,922 8,302.64 120 108 8/1/2009 360 360 348
169 010-00000465 5/20/1999 1,085,992 8,783.50 120 106 6/1/2009 300 300 286
171 010-00000350 11/13/1998 1,076,254 10,660.65 180 160 12/1/2013 180 180 160
172 020-00000051 12/22/1998 1,074,565 7,774.58 120 101 1/1/2009 300 300 281
173 010-00000275 8/3/1998 1,031,555 7,695.94 120 97 9/1/2008 300 300 277
175 010-00000266 6/26/1998 1,017,191 8,710.28 144 119 7/1/2010 240 240 215
177 010-00000349 9/18/1998 983,112 7,170.72 132 110 10/1/2009 300 300 278
178 010-00000528 7/23/1999 978,515 7,673.81 120 108 8/1/2009 300 300 288
</TABLE>
<TABLE>
<CAPTION>
Control Loan Loan Cross Antici- Defease Defease Ownership Interest Master Yield
Number Number Balance at Collater- pated Start End Date Interest Accrual Servic- Maintenance
Maturity/ alized Repay- Date Method ing Fee Calculation
ARD (Mortgage ment Rate Method
Loan Date
Group)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
143 010-00000281 1,187,025 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
145 010-00000504 1,252,438 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
146 010-00000333 1,025,972 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
148 010-00000370 1,096,485 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
150 010-00000452 1,078,093 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
152 020-00000043 1,046,504 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
153 010-00000311 969,258 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 1
154 010-00000308 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 2
155 020-00000054 1,048,021 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
156 010-00000550 1,124,770 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
157 010-00000280 901,332 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
158 010-00000462 1,039,757 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
159 010-00000378 998,317 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
160 020-00000064 1,004,561 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
161 020-00000022 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 2
162 010-00000446 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 2
164 020-00000034 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 2
165 010-00000312 924,159 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
166 010-00000429 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 2
168 010-00000484 991,031 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
169 010-00000465 917,392 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
171 010-00000350 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 2
172 020-00000051 879,858 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
173 010-00000275 855,795 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
175 010-00000266 643,451 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
177 010-00000349 780,150 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
178 010-00000528 817,460 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
</TABLE>
2
<PAGE> 283
SCHEDULE OF AMCC MORTGAGE LOANS
<TABLE>
<CAPTION>
Control Loan Mortgage Loan/ Property City State Zip Original Mort-
Number Number Loan Property Address Code Balance gage
Seller Name Rate
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
179 020-00000036 AMCC Philomath 2809 Main Street Philomath OR 97370 1,000,000 7.35%
Self-Storage
180 010-00000398 AMCC Aztec 4116 Avenida Cochise Sierra Vista AZ 85635 990,000 7.50%
Building
181 010-00000279 AMCC Stone 3501 Pan American Albuquerque NM 87107 1,000,000 7.55%
Mountain Freeway NE
Carpet Mill
Outlet
183 010-00000258 AMCC Williams 3707 Williams Road San Jose CA 95128 945,000 7.55%
Road Office
Building
184 010-00000267 AMCC Wheeling 3728-3770 Wheeling Aurora CO 80239 1,000,000 7.50%
Service Street
Center
185 010-00000447 AMCC 650 New Road 650 New Road Linwood NJ 08221 925,000 8.30%
Office
Building
187 010-00000385 AMCC The Certex 1460 West Canal Court Littleton CO 80120 960,000 7.25%
Building
188 010-00000461 AMCC Pheasant Run 9830-9860 Mallard Laurel MD 20708 850,000 8.40%
Shopping Drive
Center
189 010-00000331 AMCC Runnin' 4530 South Maryland Las Vegas NV 89119 900,000 7.70%
Rebel Plaza Parkway
190 010-00000473 AMCC Vic Huber 1731 Reynolds Avenue Irvine CA 92714 830,000 8.50%
Photography
Building
191 010-00000434 AMCC Hollywood 31250 Michigan Avenue Westland MI 48186 822,500 7.90%
Video-
Westland
193 010-00000463 AMCC National Die 70 Moonachie Avenue Moonachie NJ 07074 800,000 8.60%
& Button
Mould
Company
194 010-00000371 AMCC Metropolitan 3223-3269 East 3300 Salt Lake UT 84109 900,000 6.75%
Square South City
Shopping
Center
</TABLE>
<TABLE>
<CAPTION>
Control Loan Note Cut-off Monthly Original Remaining Scheduled Stated Calcu- Calcu-
Number Number Date Date Debt Term to Term to Maturity Original lated lated
Balance Service Maturity/ Maturity Date Amort- Original Remaining
Payment ARD Date ization Amort- Amort-
(months) /ARD Term ization ization
(months) (months) Term Term
(months) (months)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
179 020-00000036 9/29/1998 974,736 7,292.62 120 98 10/1/2008 300 300 278
180 010-00000398 11/2/1998 926,514 9,177.42 180 160 12/1/2013 180 180 160
181 010-00000279 7/7/1998 922,364 9,298.56 180 156 8/1/2013 180 180 156
183 010-00000258 6/16/1998 918,706 7,014.23 120 95 7/1/2008 300 300 275
184 010-00000267 6/9/1998 918,553 9,270.12 180 155 7/1/2013 180 180 155
185 010-00000447 5/24/1999 912,988 7,324.10 120 106 6/1/2009 300 300 286
187 010-00000385 10/30/1998 893,859 8,763.49 180 159 11/1/2013 180 180 159
188 010-00000461 5/25/1999 831,321 7,322.79 120 106 6/1/2009 240 240 226
189 010-00000331 7/23/1998 830,942 8,445.73 180 156 8/1/2013 180 180 156
190 010-00000473 7/14/1999 821,183 6,683.39 120 108 8/1/2009 300 300 288
191 010-00000434 2/24/1999 808,449 6,293.80 120 103 3/1/2009 300 300 283
193 010-00000463 6/17/1999 784,289 6,993.31 120 107 7/1/2009 240 240 227
194 010-00000371 10/8/1998 782,840 10,334.18 120 99 11/1/2008 120 120 99
</TABLE>
<TABLE>
<CAPTION>
Control Loan Loan Cross Antici- Defease Defease Ownership Interest Master Yield
Number Number Balance at Collater- pated Start End Date Interest Accrual Servic- Maintenance
Maturity/ alized Repay- Date Method ing Fee Calculation
ARD (Mortgage ment Rate Method
Loan Date
Group)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
179 020-00000036 808,698 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
180 010-00000398 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 1
181 010-00000279 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 2
183 010-00000258 769,014 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
184 010-00000267 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 2
185 010-00000447 769,280 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
187 010-00000385 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 2
188 010-00000461 608,014 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
189 010-00000331 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 1
190 010-00000473 694,114 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
191 010-00000434 676,408 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
193 010-00000463 576,263 No NAP NAP NAP Fee Simple Actual/360 0.05% Present Value
Type 2
194 010-00000371 0 No NAP NAP NAP Fee Simple 30/360 0.05% Present Value
Type 2
</TABLE>
3
<PAGE> 284
EXHIBIT B-1D
SCHEDULE OF ORECM MORTGAGE LOANS
[See Attached Schedule]
<PAGE> 285
SCHEDULE OF ORIX MORTGAGE LOANS
<TABLE>
<CAPTION>
CONTROL LOAN MORTGAGE LOAN / PROPERTY PROPERTY ADDRESS CITY STATE ZIP CODE ORIGINAL
NUMBER NUMBER LOAN NAME BALANCE
SELLER
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
3 3727 ORIX Medical Mutual of 3737 Sylvania Avenue Toledo OH 43623
Ohio Office 14,700,000
Building - Toledo
4 3729 ORIX Medical Mutual of 23700 Commerce Park Beachwood OH 44122
Ohio Office Road 5,100,000
Building -
Beachwood
11 3452 ORIX 250 Plaza Office 250 East Wisconsin Milwaukee WI 53202
Building Avenue 15,000,000
24 3583 ORIX Distribution US Highway 41 and Princeton IN 47670
Services Limited 100 County Road West 9,750,000
40 3808 ORIX SugarOak Office 423 - 491 Carlisle Herndon VA 20170
Retreat Drive 6,100,000
41 3589 ORIX Dronningens Gade 7A, 36A-2, 37A, & Charlotte VI 00803
Portfolio 38A Dronningens Amalie, 6,077,000
Gade, Queen's St. Thomas
Quarter
49 3288 ORIX Bayshore 10800 Biscayne Miami FL 33161
Executive Plaza Boulevard 5,325,000
55 3476 ORIX Lyrewood Pointe 7806 Lyrewood Lane Oklahoma OK 73132
Apartments City 5,045,000
58 3510 ORIX Park Square Court 400 Sibley Street St. Paul MN 55101
4,950,000
76 3710 ORIX Renner Plaza 251 Renner Parkway Richardson TX 75080
Office Building 3,250,000
119 3379 ORIX CountryHouse 900 West 46th Street Davenport IA 52806
Residences 1,933,000
124 3753 ORIX Miami Gardens 99 NW 183rd Street North FL 33169
Office Center Miami Beach 1,856,000
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN MORT- NOTE DATE CUT-OFF DATE MONTHLY ORIGINAL TERM REMAIN- SCHEDULED
NUMBER NUMBER GAGE RATE BALANCE DEBT TO MATURITY/ ING TERM MATURITY DATE
SERVICE ARD (MONTHS) TO
PAYMENT MATURITY
/ ARD
(MONTHS)
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
3 3727 8.6200% 03/28/00 14,671,955 114,282.80 120 116 04/01/10
4 3729 8.6200% 03/28/00 5,090,270 39,649.14 120 116 04/01/10
11 3452 7.6700% 07/12/99 14,886,077 106,633.79 120 108 08/01/09
24 3583 8.1700% 10/15/99 9,700,591 72,700.87 120 111 11/01/09
40 3808 8.2400% 05/15/00 6,093,573 45,784.39 120 118 06/01/10
41 3589 9.3100% 01/26/00 6,061,116 50,258.43 120 114 02/01/10
49 3288 7.5700% 05/25/99 5,276,287 37,488.75 120 106 06/01/09
55 3476 8.3300% 09/17/99 5,018,358 38,185.51 120 110 10/01/09
58 3510 8.1400% 09/10/99 4,922,476 36,805.61 120 110 10/01/09
76 3710 8.9600% 02/04/00 3,243,376 26,056.75 120 115 03/01/10
119 3379 9.1400% 11/03/99 1,921,171 16,407.38 120 112 12/01/09
124 3753 8.3100% 04/27/00 1,853,313 14,021.87 120 117 05/01/10
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN STATED CALCULATED CALCULATED REMAINING LOAN BALANCE CROSS ANTICIPATED
NUMBER NUMBER ORIGINAL ORIGINAL AMORT- AMORTIZATION TERM AT MATURITY COLLATER- REPAYMENT
AMORT- IZATION TERM (MONTHS) / ARD ALIZED DATE
IZATION TERM (MONTHS) (MORTGAGE
(MONTHS) LOAN GROUP)
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
3 3727 360 360 356 13,335,030 Yes (a) NAP
4 3729 360 360 356 4,626,438 Yes (a) NAP
11 3452 360 360 348 13,311,696 No NAP
24 3583 360 360 351 8,755,485 No NAP
40 3808 360 360 358 5,485,618 No NAP
41 3589 360 360 354 5,594,558 No NAP
49 3288 360 360 346 4,714,063 No NAP
55 3476 360 360 350 4,548,197 No NAP
58 3510 360 360 350 4,442,824 No NAP
76 3710 360 360 355 2,971,016 No NAP
119 3379 300 300 292 1,644,598 No NAP
124 3753 360 360 357 1,672,115 No NAP
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN DEFEASE START DEFEASE END OWNERSHIP INTEREST MASTER YIELD
NUMBER NUMBER DATE DATE INTEREST ACCRUAL SERVICING MAINTENANCE
METHOD FEE RATE CALCULATION
METHOD
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
3 3727 09/01/02 12/31/09 Fee Simple Actual/360 0.0400% NAP
4 3729 09/01/02 12/31/09 Fee Simple Actual/360 0.0525% NAP
11 3452 09/01/02 04/30/09 Fee Simple Actual/360 0.0400% NAP
24 3583 09/01/02 07/31/09 Fee Simple Actual/360 0.0400% NAP
40 3808 09/01/02 02/28/10 Fee Simple Actual/360 0.0525% NAP
41 3589 09/01/02 10/31/09 Fee Simple Actual/360 0.0525% NAP
49 3288 09/01/02 02/28/09 Fee Simple Actual/360 0.0525% NAP
55 3476 09/01/02 06/30/09 Fee Simple Actual/360 0.0525% NAP
58 3510 09/01/02 06/30/09 Fee Simple Actual/360 0.0650% NAP
76 3710 09/01/02 11/30/09 Fee Simple Actual/360 0.0950% NAP
119 3379 09/01/02 08/31/09 Fee Simple Actual/360 0.1450% NAP
124 3753 09/01/02 01/31/10 Fee Simple Actual/360 0.1450% NAP
</TABLE>
<PAGE> 286
EXHIBIT B-1E
SCHEDULE OF ORIGINAL MORTGAGE LOANS HELD BY LOAN REMICs
[See Attached Schedule]
<PAGE> 287
SCHEDULE OF MORTGAGE LOANS HELD BY LOAN REMICS
<TABLE>
<CAPTION>
MORTGAGE
CONTROL LOAN LOAN ORIGINAL
NUMBER NUMBER SELLER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY STATE ZIP CODE BALANCE
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
29 6602253 SBRC Hampton Inn - Columbus 4280 International Gateway Columbus OH 43219 6,000,000
30 7000000 SBRC Comfort Suites Hotel 4270 Sawyer Road Columbus OH 43219 2,080,000
</TABLE>
<TABLE>
<CAPTION>
MORT-
CONTROL LOAN GAGE CUT-OFF DATE
NUMBER NUMBER RATE NOTE DATE BALANCE
-------------------------------------------------------
<S> <C> <C> <C> <C>
29 6602253 7.2600% 09/04/98 5,795,196
30 7000000 7.2600% 09/04/98 2,009,001
</TABLE>
<PAGE> 288
EXHIBIT B-1F
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
<PAGE> 289
SCHEDULE OF MORTGAGE LOANS WITH ENVIRONMENTAL INSURANCE
<TABLE>
<CAPTION>
MORTGAGE
CONTROL LOAN LOAN
NUMBER NUMBER SELLER LOAN/ PROPERTY NAME PROPERTY ADDRESS CITY
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
3 3727 ORIX Medical Mutual of Ohio Office Building - Toledo 3737 Sylvania Avenue Toledo
17 11233A PW Kmart Plaza 200 South Main Street West Lebanon
82 9583 PW Deere Road Warehouse Buildings 6392-6402-6412 Deere Road Syracuse
98 7585 PW Burke Village Center 9570 Burke Road Burke
120 6602692 SBRC One Centennial Drive One Centennial Drive Peabody
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGINAL MORT- CUT-OFF DATE
NUMBER NUMBER STATE ZIP CODE BALANCE GAGE RATE NOTE DATE BALANCE
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
3 3727 OH 43623 14,700,000 8.6200% 03/28/00 14,671,955
17 11233A NH 03784 8,610,000 8.6400% 06/30/00 8,606,999
82 9583 NY 13206 3,040,000 9.1500% 02/24/00 3,034,181
98 7585 VA 22015 2,565,000 8.7000% 03/14/00 2,556,523
120 6602692 MA 01960 1,925,000 8.8500% 12/14/99 1,918,678
</TABLE>
<PAGE> 290
EXHIBIT B-1G
SCHEDULE OF MORTGAGE LOANS WITH CUT-OFF DATE PRINCIPAL
BALANCES OF $5,000,000 OR MORE THAT DO NOT PROVIDE FOR RATING
AGENCY CONFIRMATION REGARDING WAIVER OF DUE-ON-SALE CLAUSES
<TABLE>
<CAPTION>
LOAN/PROPERTY NAME CUT-OFF DATE BALANCE
------------------ --------------------
<S> <C>
Mount Vernon Medical Office Building $ 15,250,000
Senter road Industrial Property $ 12,600,000
Scottsdale Gateway II $ 11,895,000
Computer Science Corp. Building $ 6,225,000
Sprint Call Center $ 6,200,000
National Refactories and Minerals $ 5,450,000
</TABLE>
N-1
<PAGE> 291
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
<PAGE> 292
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
Series 2000-C2
LEGEND Endorsement to the Trust must be completed on all Mortgage Loans
M-Missing Y-Yes
O-Original N-No
C-Copy
NOTE REVIEW EXCEPTION REPORT
<TABLE>
<CAPTION>
ORIGINAL
CONTROL NUMBER PROPERTY NAME PRINCIPAL BALANCE COMMENTS
<S> <C> <C> <C>
8 Red Lion Shopping Center $17,000,000.00 Note is Missing
16 Scottsdale Gateway II 11,895,000.00 Note is a Copy
51 Days Inn Fort Wright 1,835,000.00 Note is Missing
70 131 Spring Street 3,651,000.00 Note is Missing
72 Jackson Professional 3,600,000.00 Note is Missing
122 Avenue J Warehouse 1,900,000.00 Note is Missing
</TABLE>
<PAGE> 293
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[date]
<TABLE>
<S> <C>
Salomon Brothers Mortgage Wells Fargo Bank Minnesota, N.A.
Securities VII, Inc. 11000 Broken Land Parkway
388 Greenwich Street Columbia, Maryland 21044
New York, New York 10013
Salomon Brothers Realty Corp. ORIX Real Estate Capital Markets, LLC
388 Greenwich Street 1717 Main Street, Suite 1400
New York, New York 10013 Dallas, Texas 75201
PaineWebber Real Estate Securities, Inc. PaineWebber Incorporated
1285 Avenue of the Americas, 38th Floor 1285 Avenue of the Americas, 38th Floor
New York, New York 10014 New York, New York 10014
Artesia Mortgage Capital Corporation Artesia Banking Corporation
1180 Northwest Maple Street, Suite 202 c/o Artesia Mortgage Capital Corporation
Issaquah, Washington 98027 1180 Northwest Maple Street, Suite 202
Issaquah, Washington 98027
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
</TABLE>
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C2
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of August 1, 2000 and related to the above-referenced Certificates (the
"Agreement"), The Chase Manhattan Bank, as custodian on behalf of the Trustee
(the "Custodian"), hereby certifies as to each Original Mortgage Loan subject to
the Agreement (except as identified in the exception report attached hereto)
that: (i) the original Mortgage Note specified in clause (i) of the definition
of "Mortgage File" in the Agreement and all allonges thereto, if any (or a copy
of such Mortgage Note, together with a "lost note affidavit" certifying that the
original of such Mortgage Note has been lost), the original or copy of each
document specified in clauses (ii) through (v) of the definition of "Mortgage
File" in the Agreement, and the original or copy of the policy of title
insurance specified in clause (vii) of the definition of "Mortgage File" in the
Agreement and each document specified in clause (viii) of the definition of
"Mortgage File" in the Agreement (without regard to the parenthetical in such
clause (viii)) and, in the case of each Original Mortgage Loan identified on
Exhibit B-1E, the original copy of the Loan REMIC Declaration
<PAGE> 294
specified in clause (xiii) of the definition of "Mortgage File" is in its
possession or the possession of a Custodian on its behalf; (ii) if the date of
this report is more than 180 days after the Closing Date, the recordation/filing
contemplated by Section 2.01(e) has been completed (based solely on receipt by
the Trustee or a Custodian on its behalf of the particular recorded/filed
documents); (iii) all documents received by it or any Custodian with respect to
such Mortgage Loan have been reviewed by it or by such Custodian on its behalf
and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appear to have been executed and (C) purport to relate to such Mortgage
Loan; and (iv) based on the examinations referred to in Section 2.02(a) and
Section 2.02(b) of the Agreement and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (ii) (other than the zip code) and (vi)(B) of the
definition of "Mortgage Loan Schedule" in the Agreement accurately reflects the
information set forth in the Mortgage File.
Pursuant to Section 2.02(c) of the Agreement, the Custodian is not
under any obligation to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are valid, legal, effective, genuine,
binding, enforceable, sufficient or appropriate for the represented purpose or
that they are other than what they purport to be on their face. Furthermore, the
Custodian shall not have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
THE CHASE MANHATTAN BANK,
as Custodian
By:______________________
Name:
Title:
2
<PAGE> 295
EXHIBIT B-4
FORM OF MORTGAGE LOAN SELLER CERTIFICATION
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001-2697
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C2
Ladies and Gentlemen:
Pursuant to Section 2(c) of the Mortgage Loan Purchase Agreement dated
as of August 15, 2000 (the "Mortgage Loan Purchase Agreement"), between the
undersigned as seller and Salomon Brothers Mortgage Securities VII, Inc. ("SBMS
VII") as purchaser, and as contemplated by Section 2.01(d) of the Pooling and
Servicing Agreement dated as of August 1, 2000 (the "Pooling and Servicing
Agreement"), between SBMS VII as depositor, ORIX Real Estate Capital Markets,
LLC as master servicer and special servicer and Wells Fargo Bank Minnesota, N.A.
as trustee, the undersigned hereby certifies as to each Mortgage Loan listed on
Schedule A hereto for which it could not deliver, or cause to be delivered, on
or before the Closing Date an original or photocopy of the Mortgage, Assignment
of Leases and/or UCC Financing Statements specified on Schedule A hereto with
evidence of recording or filing, as applicable, thereon (which documents were
required to be delivered as part of the Mortgage File for such Mortgage Loan),
that it is in good faith attempting to obtain from the appropriate public
recording or filing office such original or photocopy with evidence of recording
or filing, as applicable, thereon . The reason for the delay is [specify reason,
if known, and otherwise state unknown].
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement or,
if not defined therein, then in the Mortgage Loan Purchase Agreement.
Respectfully,
[MORTGAGE LOAN SELLER]
By:______________________
Name:
Title:
<PAGE> 296
EXHIBIT C-1
LETTER OF REPRESENTATIONS AMONG DEPOSITOR,
CERTIFICATE ADMINISTRATOR AND INITIAL DEPOSITORY
<PAGE> 297
[DTC Logo]
Book-Entry-Only Collateralized Mortgage Obligations (CMOs)--
Without Owner Option to Redeem/Pass-Through Securities/
and Asset-Backed Securities
Letter of Representations
[To be Completed by Issuer and Agent]
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
---------------------------------------------------
[Name of Issuer]
THE CHASE MANHATTAN BANK, CERTIFICATE ADMINISTRATOR
---------------------------------------------------
[Name of Agent]
AUGUST , 2000
----------------------
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street 49th Floor
New York, NY 10041-0099
Re: SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. COMMERCIAL MORTGAGE
---------------------------------------------------------------------------
PASS-THROUGH CERTIFICATES, SERIES 2000-C2, CLASS A-1, A-2, B, C, D, E, F, G
---------------------------------------------------------------------------
---------------------------------------------------------------------------
[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the Securities. Agent shall act as trustee, paying agent, fiscal
agent, or other such agent of Issuer with respect to the Securities. The
Securities have been issued pursuant to a trust indenture, trust agreement,
pooling and servicing agreement or other such document authorizing the issuance
of the Securities dated AUGUST 1, 2000 (the "Document").
SALOMON SMITH BARNEY INC., PAINEWEBBER
---------------------------------------
["Underwriter/Placement Agent"]
INCORPORATED, CHASE SECURITIES INC. AND
ARTESIA BANKING CORPORATION
<PAGE> 298
is distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on August 24, 2000 there shall be
deposited with DTC one or more Security certificates registered in the name of
DTC's nominee, Cede & Co., for each stated maturity of the Securities in the
face amounts set forth on Schedule A hereto, the total of which represents 100%
of the principal amount of such Securities. If, however, the aggregate
principal amount of any maturity exceeds $400 million, one certificate shall be
issued with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount.
Each Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
Issuer represents: [Note: Issuer must represent one of the following, and shall
cross out the other.]
[The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives
an instruction originated by a DTC participant ("Participant") through DTC's
Deposit/Withdrawal at Custodian ("DWAC") system to increase the Participant's
account by a specified number of Securities (a "Deposit Instruction"), Agent
shall, no later than 6:30 p.m. (Eastern Time) that day, either approve or
cancel the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives
an instruction originated by Participant through the DWAC system to decrease
the Participant's account by a specified number of Securities (a "Withdrawal
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Withdrawal Instruction through the DWAC system.
-2-
<PAGE> 299
Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new reissued or reregistered
certificated Security on registration of transfer to the name of Cede & Co. for
the quantity of Securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.]
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Agent shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall send notice of such record date to DTC no fewer than 15
calendar days in advance of such record date. Notices to DTC pursuant to this
Paragraph by telecopy shall be directed to DTC's Reorganization Department,
Proxy Unit at (212) 855-5181 or (212) 855-5182. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5202. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
4. In the event of a full or partial redemption, Issuer or Agent shall
send a notice to DTC specifying: (a) the amount of the redemption or refunding;
(b) in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be distributed to Security holders
(the "Publication Date"). Such notice shall be sent to DTC by a secure means
(e.g., legible telecopy, registered or certified mail, overnight delivery) in a
timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible,
two business days before the Publication Date. Issuer or Agent shall forward
such notice either in a separate secure transmission for each CUSIP number or in
a secure transmission for multiple CUSIP numbers (if applicable) which includes
a manifest or list of each CUSIP number submitted in that transmission. (The
party sending such notice shall have a method to verify subsequently the use of
such means and the timeliness of such notice.) The Publication Date shall be no
fewer than 30 days nor more than 60 days prior to the redemption date or, in the
case of an advance refunding, the date that the proceeds are deposited in
escrow. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190. If
the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone (516)
227-4070. Notices to DTC pursuant to this Paragraph, by mail or by any other
means, shall be sent to:
-3-
<PAGE> 300
Manager, Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders shall be sent to DTC specifying the terms of the tender and the
Publication Date of such notice. Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use and
timeliness of such notice.) Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be directed to DTC's
Reorganization Department at (212) 855-5488. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5290. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
6. It is understood that if the Security holders shall at any time have
the right to tender the Securities to Issuer and require that Issuer repurchase
such holders' Securities pursuant to the Document and Cede & Co., as nominee
of DTC, or its registered assigns, as the record owner, is entitled to tender
the Securities, such tenders will be effected by means of DTC's Repayment
Option Procedures. Under the Repayment Option Procedures, DTC shall receive,
during the applicable tender period, instructions from its Participants to
tender Securities for purchase. Issuer and Agent agree that such tender for
purchase may be made by DTC by means of a book-entry credit of such Securities
to the account of Agent, provided that such credit is made on or before the
final day of the applicable tender period. DTC agrees that promptly after the
recording of any such book-entry credit, it will provide to Agent an Agent
Receipt and Confirmation or the equivalent, in accordance with the Repayment
Option Procedures, identifying the Securities and the aggregate principal
amount thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand or by a
secure means (e.g., legible facsimile transmission, registered or certified
mail, overnight delivery) in a timely manner designed to assure that such
notice is in DTC's possession no later than the close of business two business
days before the Publication Date. The Publication Date shall be no fewer than
15 days prior to the expiration date of the applicable tender period. Such
notice shall state whether any partial redemption of the Securities is
scheduled to occur during the applicable optional tender
-4-
<PAGE> 301
period. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Put Bond Unit at (212) 855-5235. If the party sending the notice does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5230. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
7. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to the
dollar amount per $1,000 original face value (or other minimum authorized
denomination if less than $1,000 face value) payable on each payment date
allocated as to the interest and principal portions thereof preferably five,
but no fewer than two, business days prior to such payment date. Such notices,
which shall also contain the current pool factor, any special adjustments to
principal/interest rates (e.g., adjustments due to deferred interest or
shortfall), and Agent contact's name and telephone number, shall be sent by
telecopy to DTC's Dividend Department at (212) 855-4555, and receipt of such
notices shall be confirmed by telephoning (212) 855-4550. Notices to DTC,
pursuant to this Paragraph, by mail or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th Floor
New York, NY 10041-0099
9. Issuer represents: [NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING,
AND SHALL CROSS OUT THE OTHER.] [The interest accrual period is record date to
record date.]
10. Issuer or Agent shall provide a written notice of interest payment
information, including the stated coupon rate information, to DTC as soon as the
information is available. Issuer or Agent shall provide such notice directly to
DTC electronically, as previously arranged by Issuer or Agent and DTC. If
electronic transmission has not been arranged, absent any other arrangements
between Issuer or Agent and DTC, such information shall be sent by telecopy to
DTC's Dividend Department at (212) 855-4555 or (212) 855-4556. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (212) 855-4550. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to DTC's Dividend Department as indicated in Paragraph 8.
-5-
<PAGE> 302
11. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m. (Eastern
Time) on the payment date all such interest payments due Agent, or at such
earlier time as may be required by Agent to guarantee that DTC shall receive
payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired to the Dividend Deposit Account number that will be stamped on
the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no later than
12:00 noon (Eastern Time) on the payment date, automated notification of
CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent by
telecopy, shall be directed to DTC Dividend Department at (212) 855-4633 and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such maturity and redemption payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Redemption Deposit Account number that will be stamped on the signature page
hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such reorganization payments due Agent, or at such earlier time as required by
Agent to guarantee that DTC shall receive payment in same-day funds no later
than 2:30 p.m. (Eastern Time) on the payment date. Absent any other arrangements
between Issuer or Agent and DTC, such funds shall be wired to the Reorganization
Deposit Account number that will be stamped on the signature page hereof at the
time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders remittance
reports with respect to the Securities. If sent by facsimile transmission, such
reports shall be sent to (212) 855-4777. If the party sending the report does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-4590.
16. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
-6-
<PAGE> 303
17. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate: or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent (at which time DTC will confirm with Issuer or Agent
the aggregate principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate fully with DTC
by taking appropriate action to make available one or more separate
certificates evidencing Securities to any Participant having Securities
credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance funds
on behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
22. This Letter of Representations shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this
Letter of Representations is responsible for confirming that such notice was
properly received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to, and
shall not have any responsibility to, monitor or ascertain the compliance of any
transactions in the Securities with the following, as amended from time to time:
(a) any exemptions from registration under the Securities Act of 1933; (b) the
Investment Company Act of 1940; (c) the Employee Retirement Income Security Act
of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any
self-regulatory organizations (as defined under the Securities Exchange Act of
1934); or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLs. This authorization, unless revoked by Issuer,
shall continue with respect to the Securities while any Securities are on
deposit
-7-
<PAGE> 304
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (212) 855-5182. Receipt of such requests shall be confirmed by
telephoning (212) 855-5202. Requests for SPLs, sent by mail or by any other
means, shall be directed to the address indicted in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements stated
in DTC's Operational Arrangements, as they may be amended from time to time.
DTC's Operational Arrangements are posted on DTC's website at "www.DTC.org."
27. The following rider(s), attached hereto, are hereby incorporated into
this Letter of Representations:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-8-
<PAGE> 305
Notes:
A. If there is an Agent (as defined in this Letter of
Representations), Agent as well as Issuer must sign
this Letter. If there is no Agent, in signing this
Letter Issuer itself undertakes to perform all of the
obligations set forth herein.
B. Schedule B contains statements that DTC
believes accurately describe DTC, the method of
effecting book-entry transfers of securities
distributed through DTC, and certain related
matters.
Very truly yours,
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
-------------------------------------------------------
[ISSUER]
BY: /s/ Angela Hertzel
-------------------------------------------------------
[Authorized Officer's Signature]
THE CHASE MANHATTAN BANK, AS CERTIFICATE ADMINISTRATOR
-------------------------------------------------------
[Agent]
By:
---------------------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
<PAGE> 306
Notes:
------
A. If there is an Agent (as defined in this Letter of Representations), Agent
as well as Issuer must sign this Letter. If there is no Agent, in signing this
Letter Issuer itself undertakes to perform all of the obligations set forth
herein.
B. Schedule B contains statements that DTC believes accurately describe DTC,
the method of effecting book-entry transfers of securities distributed through
DTC, and certain related matters.
Very truly yours,
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
------------------------------------------------------
[Issuer]
By:
--------------------------------------------------
[Authorized Officer's Signature]
THE CHASE MANHATTAN BANK, AS CERTIFICATE ADMINISTRATOR
------------------------------------------------------
[Agent]
By: /s/ Illegible
--------------------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ Illegible
------------------------
Funds should be wired to:
The Chase Manhattan Bank
ABA #021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
[Select Appropriate Account.]
Dividend Deposit Account #066-026776
Redemption Deposit Account #066-027306
Reorganization Deposit Account #066-027608
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
<PAGE> 307
SCHEDULE A
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
CUSIP PRINCIPAL MATURITY INTEREST
CLASS NUMBER AMOUNT DATE(1) RATE(2)
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A-1 79548K4L9 $114,610,000 June, 2009 7.298%
--------------------------------------------------------------------------------
Class A-2 79548K4M7 $483,255,000 April, 2010 7.455%
--------------------------------------------------------------------------------
Class B 79548K4N5 $ 33,214,000 May, 2010 7.526%
--------------------------------------------------------------------------------
Class C 79548K4P0 $ 33,215,000 June, 2010 7.727%
--------------------------------------------------------------------------------
Class D 79548K4Q8 $ 7,815,000 June, 2010 7.834%
--------------------------------------------------------------------------------
Class E 79548K4R6 $ 11,723,000 June, 2010 8.193%
--------------------------------------------------------------------------------
Class F 79548K4S4 $ 13,677,000 June, 2010 8.200%
--------------------------------------------------------------------------------
Class G 79548K4T2 $ 9,769,000 June, 2010 8.506%
--------------------------------------------------------------------------------
</TABLE>
------------------------
(1) If the stated date is not a business day, the maturity date is the business
day immediately following the stated date.
(2) Approximate. The interest rates shown are the approximate rates applicable
for distributions in September, 2000. The interest rates are variable or
otherwise subject to change.
* Notional Amount
<PAGE> 308
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities
will be issued as fully-registered securities registered in the name of Cede &
Co. (DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate
will be issued for [each issue of] the Securities, [each] in the aggregate
principal amount of such issue, and will be deposited with DTC. [If, however,
the aggregate principal amount of [any] issue exceeds $400 million, one
certificate will be issued with respect to each $400 million of principal
amount and an additional certificate will be issued with respect to any
remaining principal amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934. DTC holds securities that its participants ("Direct
Participants") deposit with DTC. DTC also facilitates the settlement among
Direct Participants of securities transactions, such as transfers and pledges,
in deposited securities through electronic computerized book-entry changes in
Direct Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. DTC is owned by a number of its Direct Participants and by
the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks, and
trust companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants").
The Rules applicable to DTC and its Direct and Indirect Participants are on
file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
-11-
<PAGE> 309
4. To facilitate subsequent transfers, all Securities deposited by
Direct Participants with DTC are registered in the name of DTC's partnership
nominee, Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their
registration in the name of Cede & Co. or such other nominee do not effect any
change in beneficial ownership. DTC has no knowledge of the actual Beneficial
Owners of the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish
to take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. Beneficial Owners of
Securities may wish to ascertain that the nominee holding the Securities for
their benefit has agreed to obtain and transmit notices to Beneficial Owners,
or in the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of the notices be provided
directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent
or vote with respect to the Securities. Under its usual procedures, DTC mails
an Omnibus Proxy to Issuer as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as in the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividends to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
-12-
<PAGE> 310
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to
Issuer or Agent. Under such circumstances, in the event that a successor
securities depository is not obtained, Security certificates are required to be
printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
-13-
<PAGE> 311
[DTC Logo]
Book-Entry-Only Collateralized Mortgage Obligations (CMOs)--
Without Owner Option to Redeem/Pass-Through Securities/
and Asset-Backed Securities
Letter of Representations
[To be Completed by Issuer and Agent]
Salomon Brothers Mortgage Securities VII, Inc.
---------------------------------------------------
[Name of Issuer]
The Chase Manhattan Bank
---------------------------------------------------
[Name of Agent]
August , 2000
----------------------
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street 49th Floor
New York, NY 10041-0099
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial Mortgage
----------------------------------------------------------------------
Pass-Through Certificates, Series 2000-C2, Class X
----------------------------------------------------------------------
----------------------------------------------------------------------
[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the Securities. Agent shall act as trustee, paying agent, fiscal
agent, or other such agent of Issuer with respect to the Securities. The
Securities have been issued pursuant to a private placement memorandum
authorizing the issuance of the Securities dated August 15, 2000 (the
"Document").
Salomon Smith Barney Inc. and
---------------------------------------
["Underwriter/Placement Agent"]
PaineWebber Incorporated
<PAGE> 312
is distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on August 24, 2000 there shall be
deposited with DTC one or more Security certificates registered in the name of
DTC's nominee, Cede & Co., for each stated maturity of the Securities in the
face amounts set forth on Schedule A hereto, the total of which represents 100%
of the principal amount of such Securities. If, however, the aggregate
principal amount of any maturity exceeds $400 million, one certificate shall be
issued with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount.
Each Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
Issuer represents: [Note: Issuer must represent one of the following, and shall
cross out the other.]
[The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives
an instruction originated by a DTC participant ("Participant") through DTC's
Deposit/Withdrawal at Custodian ("DWAC") system to increase the Participant's
account by a specified number of Securities (a "Deposit Instruction"), Agent
shall, no later than 6:30 p.m. (Eastern Time) that day, either approve or
cancel the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives
an instruction originated by Participant through the DWAC system to decrease
the Participant's account by a specified number of Securities (a "Withdrawal
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Withdrawal Instruction through the DWAC system.
-2-
<PAGE> 313
Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new reissued or reregistered
certificated Security on registration of transfer to the name of Cede & Co. for
the quantity of Securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.]
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Agent shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall send notice of such record date to DTC no fewer than 15
calendar days in advance of such record date. Notices to DTC pursuant to this
Paragraph by telecopy shall be directed to DTC's Reorganization Department,
Proxy Unit at (212) 855-5181 or (212) 855-5182. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5202. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
4. In the event of a full or partial redemption, Issuer or Agent shall
send a notice to DTC specifying: (a) the amount of the redemption or refunding;
(b) in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be distributed to Security holders
(the "Publication Date"). Such notice shall be sent to DTC by a secure means
(e.g., legible telecopy, registered or certified mail, overnight delivery) in a
timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible,
two business days before the Publication Date. Issuer or Agent shall forward
such notice either in a separate secure transmission for each CUSIP number or in
a secure transmission for multiple CUSIP numbers (if applicable) which includes
a manifest or list of each CUSIP number submitted in that transmission. (The
party sending such notice shall have a method to verify subsequently the use of
such means and the timeliness of such notice.) The Publication Date shall be no
fewer than 30 days nor more than 60 days prior to the redemption date or, in the
case of an advance refunding, the date that the proceeds are deposited in
escrow. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190. If
the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone (516)
227-4070. Notices to DTC pursuant to this Paragraph, by mail or by any other
means, shall be sent to:
-3-
<PAGE> 314
Manager, Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders shall be sent to DTC specifying the terms of the tender and the
Publication Date of such notice. Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use and
timeliness of such notice.) Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be directed to DTC's
Reorganization Department at (212) 855-5488. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5290. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
6. It is understood that if the Security holders shall at any time have
the right to tender the Securities to Issuer and require that Issuer repurchase
such holders' Securities pursuant to the Document and Cede & Co., as nominee
of DTC, or its registered assigns, as the record owner, is entitled to tender
the Securities, such tenders will be effected by means of DTC's Repayment
Option Procedures. Under the Repayment Option Procedures, DTC shall receive,
during the applicable tender period, instructions from its Participants to
tender Securities for purchase. Issuer and Agent agree that such tender for
purchase may be made by DTC by means of a book-entry credit of such Securities
to the account of Agent, provided that such credit is made on or before the
final day of the applicable tender period. DTC agrees that promptly after the
recording of any such book-entry credit, it will provide to Agent an Agent
Receipt and Confirmation or the equivalent, in accordance with the Repayment
Option Procedures, identifying the Securities and the aggregate principal
amount thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand or by a
secure means (e.g., legible facsimile transmission, registered or certified
mail, overnight delivery) in a timely manner designed to assure that such
notice is in DTC's possession no later than the close of business two business
days before the Publication Date. The Publication Date shall be no fewer than
15 days prior to the expiration date of the applicable tender period. Such
notice shall state whether any partial redemption of the Securities is
scheduled to occur during the applicable optional tender
-4-
<PAGE> 315
period. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Put Bond Unit at (212) 855-5235. If the party sending the notice does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5230. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
7. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to the
dollar amount per $1,000 original face value (or other minimum authorized
denomination if less than $1,000 face value) payable on each payment date
allocated as to the interest and principal portions thereof preferably five,
but no fewer than two, business days prior to such payment date. Such notices,
which shall also contain the current pool factor, any special adjustments to
principal/interest rates (e.g., adjustments due to deferred interest or
shortfall), and Agent contact's name and telephone number, shall be sent by
telecopy to DTC's Dividend Department at (212) 855-4555, and receipt of such
notices shall be confirmed by telephoning (212) 855-4550. Notices to DTC,
pursuant to this Paragraph, by mail or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th Floor
New York, NY 10041-0099
9. Issuer represents: [NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING,
AND SHALL CROSS OUT THE OTHER.] [The interest accrual period is record date to
record date.]
10. Issuer or Agent shall provide a written notice of interest payment
information, including the stated coupon rate information, to DTC as soon as the
information is available. Issuer or Agent shall provide such notice directly to
DTC electronically, as previously arranged by Issuer or Agent and DTC. If
electronic transmission has not been arranged, absent any other arrangements
between Issuer or Agent and DTC, such information shall be sent by telecopy to
DTC's Dividend Department at (212) 855-4555 or (212) 855-4556. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (212) 855-4550. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to DTC's Dividend Department as indicated in Paragraph 8.
-5-
<PAGE> 316
11. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m. (Eastern
Time) on the payment date all such interest payments due Agent, or at such
earlier time as may be required by Agent to guarantee that DTC shall receive
payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired to the Dividend Deposit Account number that will be stamped on
the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no later than
12:00 noon (Eastern Time) on the payment date, automated notification of
CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent by
telecopy, shall be directed to DTC Dividend Department at (212) 855-4633 and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such maturity and redemption payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Redemption Deposit Account number that will be stamped on the signature page
hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such reorganization payments due Agent, or at such earlier time as required by
Agent to guarantee that DTC shall receive payment in same-day funds no later
than 2:30 p.m. (Eastern Time) on the payment date. Absent any other arrangements
between Issuer or Agent and DTC, such funds shall be wired to the Reorganization
Deposit Account number that will be stamped on the signature page hereof at the
time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders remittance
reports with respect to the Securities. If sent by facsimile transmission, such
reports shall be sent to (212) 855-4777. If the party sending the report does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-4590.
16. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
-6-
<PAGE> 317
17. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate: or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent (at which time DTC will confirm with Issuer or Agent
the aggregate principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate fully with DTC
by taking appropriate action to make available one or more separate
certificates evidencing Securities to any Participant having Securities
credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance funds
on behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
22. This Letter of Representations shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this
Letter of Representations is responsible for confirming that such notice was
properly received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to, and
shall not have any responsibility to, monitor or ascertain the compliance of any
transactions in the Securities with the following, as amended from time to time:
(a) any exemptions from registration under the Securities Act of 1933; (b) the
Investment Company Act of 1940; (c) the Employee Retirement Income Security Act
of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any
self-regulatory organizations (as defined under the Securities Exchange Act of
1934); or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLs. This authorization, unless revoked by Issuer,
shall continue with respect to the Securities while any Securities are on
deposit
-7-
<PAGE> 318
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (212) 855-5182. Receipt of such requests shall be confirmed by
telephoning (212) 855-5202. Requests for SPLs, sent by mail or by any other
means, shall be directed to the address indicted in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements stated
in DTC's Operational Arrangements, as they may be amended from time to time.
DTC's Operational Arrangements are posted on DTC's website at "www.DTC.org."
27. The following rider(s), attached hereto, are hereby incorporated into
this Letter of Representations:
Representations for Rule 144A Securities
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-8-
<PAGE> 319
Notes:
A. If there is an Agent (as defined in this Letter of
Representations), Agent as well as Issuer must sign
this Letter. If there is no Agent, in signing this
Letter Issuer itself undertakes to perform all of the
obligations set forth herein.
B. Schedule B contains statements that DTC
believes accurately describe DTC, the method of
effecting book-entry transfers of securities
distributed through DTC, and certain related
matters.
Very truly yours,
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
-------------------------------------------------------
[ISSUER]
BY: /s/ Angela Hertzel
-------------------------------------------------------
[Authorized Officer's Signature]
THE CHASE MANHATTAN BANK
-------------------------------------------------------
[Agent]
By:
---------------------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
<PAGE> 320
Notes:
------
A. If there is an Agent (as defined in this Letter of Representations), Agent
as well as Issuer must sign this Letter. If there is no Agent, in signing this
Letter Issuer itself undertakes to perform all of the obligations set forth
herein.
B. Schedule B contains statements that DTC believes accurately describe DTC,
the method of effecting book-entry transfers of securities distributed through
DTC, and certain related matters.
Very truly yours,
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
------------------------------------------------------
[Issuer]
By:
--------------------------------------------------
[Authorized Officer's Signature]
THE CHASE MANHATTAN BANK
------------------------------------------------------
[Agent]
By: /s/ Illegible
--------------------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ Illegible
------------------------
Funds should be wired to:
The Chase Manhattan Bank
ABA #021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
[Select Appropriate Account.]
Dividend Deposit Account #066-026776
Redemption Deposit Account #066-027306
Reorganization Deposit Account #066-027608
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
<PAGE> 321
Notes:
------
A. If there is an Agent (as defined in this Letter of Representations), Agent
as well as Issuer must sign this Letter. If there is no Agent, in signing this
Letter Issuer itself undertakes to perform all of the obligations set forth
herein.
B. Schedule B contains statements that DTC believes accurately describe DTC,
the method of effecting book-entry transfers of securities distributed through
DTC, and certain related matters.
Very truly yours,
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
------------------------------------------------------
[Issuer]
By:
--------------------------------------------------
[Authorized Officer's Signature]
THE CHASE MANHATTAN BANK
------------------------------------------------------
[Agent]
By: /s/ Illegible
--------------------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ Illegible
------------------------
Funds should be wired to:
The Chase Manhattan Bank
ABA #021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
[Select Appropriate Account.]
Dividend Deposit Account #066-026776
Redemption Deposit Account #066-027306
Reorganization Deposit Account #066-027608
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
<PAGE> 322
SCHEDULE A
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
CUSIP PRINCIPAL MATURITY INTEREST
CLASS NUMBER AMOUNT DATE(1) RATE(2)
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class X 79548K4U9 $781,523,168* July 18, 2033 1.116%
--------------------------------------------------------------------------------
</TABLE>
------------------------
(1) If the stated date is not a business day, the maturity date is the business
day immediately following the stated date.
(2) Approximate. The interest rates shown are the approximate rates applicable
for distributions in September, 2000. The interest rates are variable or
otherwise subject to change.
* Notional Amount
<PAGE> 323
SCHEDULE A
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
CUSIP PRINCIPAL MATURITY INTEREST
CLASS NUMBER AMOUNT DATE(1) RATE(2)
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class X 79548K4U9 $781,523,168* July 18, 2033 1.116%
--------------------------------------------------------------------------------
</TABLE>
------------------------
(1) If the stated date is not a business day, the maturity date is the business
day immediately following the stated date.
(2) Approximate. The interest rates shown are the approximate rates applicable
for distributions in September, 2000. The interest rates are variable or
otherwise subject to change.
* Notional Amount
<PAGE> 324
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities
will be issued as fully-registered securities registered in the name of Cede &
Co. (DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate
will be issued for [each issue of] the Securities, [each] in the aggregate
principal amount of such issue, and will be deposited with DTC. [If, however,
the aggregate principal amount of [any] issue exceeds $400 million, one
certificate will be issued with respect to each $400 million of principal
amount and an additional certificate will be issued with respect to any
remaining principal amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934. DTC holds securities that its participants ("Direct
Participants") deposit with DTC. DTC also facilitates the settlement among
Direct Participants of securities transactions, such as transfers and pledges,
in deposited securities through electronic computerized book-entry changes in
Direct Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. DTC is owned by a number of its Direct Participants and by
the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks, and
trust companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants").
The Rules applicable to DTC and its Direct and Indirect Participants are on
file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
-11-
<PAGE> 325
4. To facilitate subsequent transfers, all Securities deposited by
Direct Participants with DTC are registered in the name of DTC's partnership
nominee, Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their
registration in the name of Cede & Co. or such other nominee do not effect any
change in beneficial ownership. DTC has no knowledge of the actual Beneficial
Owners of the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish
to take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. Beneficial Owners of
Securities may wish to ascertain that the nominee holding the Securities for
their benefit has agreed to obtain and transmit notices to Beneficial Owners,
or in the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of the notices be provided
directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent
or vote with respect to the Securities. Under its usual procedures, DTC mails
an Omnibus Proxy to Issuer as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as in the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividends to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
-12-
<PAGE> 326
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to
Issuer or Agent. Under such circumstances, in the event that a successor
securities depository is not obtained, Security certificates are required to be
printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
-13-
<PAGE> 327
[DTC LOGO]
REPRESENTATIONS FOR RULE 144A SECURITIES --
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
1. Issuer represents that at the time of initial registration in the name
of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a
CUSIP or CINS identification number is obtained for all unrestricted securities
of the same class that is different from any CUSIP or CINS identification
number assigned to a Legally or Contractually Restricted Security of such
class, and shall notify DTC promptly in the event that it is unable to do so.
Issuer represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are: [NOTE: ISSUER MUST REPRESENT
ONE OF THE FOLLOWING, AND SHALL CROSS OUT THE OTHER.]
[an issue of nonconvertible debt securities or nonconvertible preferred stock
which is rated in one of the top four categories by a nationally recognized
statistical rating organization ("Investment Grade Securities").]
3. If the Securities are not Investment-Grade Securities, Issuer and Agent
acknowledge that if such Securities cease to be included in an SRO Rule 144A
System during any period in which such Securities are Legally or Contractually
Restricted Securities, such Securities shall no longer be eligible for DTC's
services. Furthermore, DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent. Under any of the aforementioned circumstances, at
DTC's request, Issuer and Agent shall cooperate fully with DTC by taking
appropriate action to make available one or more separate certificates
evidencing Securities to any DTC Participant ("Participant") having Securities
credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full
benefits of ownership of such Securities.
________________________________
(1) A "Legally Restricted Security" is a security that is a restricted
security, as defined in Rule 144(a)(3). A "Contractually Restricted Security" is
a security that upon issuance and continually thereafter can only be sold
pursuant to Regulation S under the Securities Act, Rule 144A. Rule 144, or in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4 of the Securities Act and not involving any public
offering; provided, however, that once the security is sold pursuant to the
provisions of Rule 144, including Rule 144(k), it will thereby cease to be a
"Contractually Restricted Security." For purposes of this definition, in order
for a depositary receipt to be considered a "Legally or Contractually Restricted
Security," the underlying security must also be a "Legally or Contractually
Restricted Security."
<PAGE> 328
EXHIBIT C-2
FORM OF ARTESIA BANKING CORPORATION COMFORT LETTER
RELATING TO THE AMCC MORTGAGE LOAN PURCHASE AGREEMENT
[See Attached Comfort Letter]
<PAGE> 329
LETTERHEAD ARTESIA BANKING CORPORATION
As of August 15, 2000
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street, 11th Floor
New York, New York 10013
Attention: Angela Hutzel
Wells Fargo Bank, Minnesota, N.A.
45 Broadway, 12th Floor
New York, N.Y. 10006
Attention: Leslie A. Gaskill
Ladies and Gentlemen:
In connection with the issue, offer and sale of the Salomon Brothers
Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-C2 (the "Certificates"), in which Artesia Mortgage Capital
Corporation ("AMCC") is involved in its capacity as a mortgage loan seller and
Artesia Banking Corporation ("Artesia") is involved in its capacity as an
underwriter, and for which the closing date is scheduled on or about August 24,
2000, AMCC and Salomon Brothers Mortgage Securities VII,Inc. ("SBMS VII") will
enter into a Mortgage Loan Purchase Agreement dated as of August 15, 2000 (the
"Agreement"). Capitalized terms not defined herein shall have the respective
meanings ascribed thereto in the Agreement.
Taking into account the capital links between Artesia and AMCC which is
a 100% affiliate of Artesia and taking into account the interest of Artesia in
the issue, offer and sale of the Certificates and the securitization market,
Artesia irrevocably agrees for the benefit of SBMS VII, the trustee under the
pooling and servicing agreement pursuant to which the Certificates were issued
and the registered holders and beneficial owners of the Certificates
(collectively, the "Beneficiaries"), to do any and all things and take any and
all actions which may be necessary or appropriate to enable AMCC to execute and
perform all of its obligations pursuant to the Agreement (collectively, the
"Obligations"), including, without limitation, making all of the representations
and warranties on behalf of AMCC and supporting any financial consequences
incurred by any of the liability provisions of the Agreement. Without limiting
the foregoing, in the event that AMCC encounters any difficulties of a human,
technical or financial nature may might endanger its execution and performance
of the Obligations, Artesia shall provide any and all human resources, technical
assistance and financial intervention which may be necessary or appropriate to
ensure the execution and performance of the Obligations.
Subject to the following sentence, Artesia shall keep in full effect
its existence, rights and franchises as a corporation, bank, trust company,
partnership, limited liability company, association or other legal entity under
the laws of the jurisdiction wherein it was organized, and shall obtain and
preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this letter agreement and to perform its
respective duties under this letter agreement. Artesia may, however, be merged
or consolidated with or into any Person, or
<PAGE> 330
transfer all or substantially all of its assets to any Person, in which case,
any Person resulting from any merger or consolidation to which Artesia shall be
a party, or any Person succeeding to the business of Artesia, shall be the
successor of Artesia, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Furthermore and subject to the following sentence, Artesia shall cause
AMCC to keep in full effect its existence, rights and franchises as a
corporation, bank, trust company, partnership, limited liability company,
association or other legal entity under the laws of the jurisdiction wherein it
was organized, with a net worth of at least $15,000,000 (U.S.), and shall cause
AMCC to obtain and preserve its qualification to do business as a foreign entity
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Agreement and to execute and
perform the Obligations. AMCC may, however, be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets to any
Person, in which case, Artesia shall cause any Person resulting from any merger
or consolidation to which AMCC shall be a party, or any Person succeeding to the
business of AMCC, to assume the Obligations in writing and to be the successor
of AMCC under the Agreement in all respects.
Upon the occurrence of any of the following events, Artesia shall
become directly and primarily liable for the Obligations:
1. A failure on the part of Artesia to perform its obligations
under this letter agreement, which failure continues
unremedied for ten days following notice by any Beneficiary to
Artesia of such failure; or
2. A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary cause under any present or future federal, state
or foreign bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against AMCC and such decree
or order shall have remained in force undischarged,
undismissed or unstayed for a period of 60 days; or
3. AMCC shall consent to the appointment of a conservator,
receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating
to it or of or relating to all or substantially all of its
property; or
4. AMCC shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of
its creditors, voluntarily suspend payment of its obligations,
or take any corporate action in furtherance of the foregoing.
No delay on the part of any Beneficiary in the exercise of any right or
remedy arising under this letter agreement, the Agreement or otherwise with
respect to all or any part of
<PAGE> 331
the Obligations or any other guaranty of or security for all or any part of the
Obligations shall operate as a waiver thereof, and no single or partial exercise
by any Beneficiary of any such right or remedy shall preclude any further
exercise thereof. No modification or waiver of any of the provisions of this
letter agreement or the Agreement shall be binding upon any Beneficiary, except
as expressly set forth in a writing duly signed and delivered by such
Beneficiary. Failure by any Beneficiary at any time or times hereafter to
require strict performance by AMCC, any other guarantor of all or any part of
the Obligations or any other person or entity of any of the provisions,
warranties, terms and conditions contained in the Agreement now or at any time
or times hereafter executed by such persons or entities and delivered to any
Beneficiary shall not waive, affect or diminish any right of any Beneficiary at
any time or times hereafter to demand strict performance thereof or of this
letter agreement, and such right shall not be deemed to have been waived by any
act or knowledge of any Beneficiary, or any Beneficiary's respective agents,
officers or employees, unless such waiver is contained in an instrument in
writing, directed and delivered to AMCC or Artesia, as applicable, specifying
such waiver, and is signed by the Beneficiary against which enforcement is
sought.
To the maximum extent permitted by law, Artesia hereby waives any and
all defenses to its obligations hereunder that would be available to a surety.
THIS LETTER AGREEMENT SHALL BE CONSTRUED AND ENFORCED AND THE RIGHTS
AND DUTIES OF THE PARTIES SHALL BE GOVERNED IN ALL RESPECTS IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
ARTESIA IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION
OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THIS LETTER
AGREEMENT OR THE AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND ARTESIA
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. ARTESIA AGREES THAT A FINAL
NON-APPEALABLE 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. ARTESIA WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY
HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
ARTESIA AGREES THAT THE BENEFICIARIES SHALL HAVE THE RIGHT TO PROCEED
AGAINST IT OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE THE
BENEFICIARIES TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF A
BENEFICIARY. ARTESIA WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF
THE COURT IN WHICH A BENEFICIARY MAY COMMENCE A PROCEEDING DESCRIBED IN THIS
SECTION.
<PAGE> 332
ARTESIA IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT C/O AMCC, AT
1180 NORTHWEST MAPLE STREET, SUITE 202, ISSAQUAH, WASHINGTON 98027, ATTENTION:
GUY COOLS, SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH MAILING.
ARTESIA IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS LETTER AGREEMENT OR THE AGREEMENT IN
ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF A
BENEFICIARY TO BRING PROCEEDINGS AGAINST ARTESIA IN THE COURTS OF ANOTHER
JURISDICTION.
ARTESIA WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS
LETTER AGREEMENT OR THE AGREEMENT. ANY BENEFICIARY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS LETTER AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT ARTESIA TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
Any notice, demand, request or other communication required or desired
to be served, given or delivered hereunder shall be in writing and shall be
served, given and delivered to Artesia c/o AMCC, at 1180 Northwest Maple Street,
Suite 202, Issaquah, Washington 98027, Attention: Guy Cools.
Wherever possible, each provision of this letter agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this letter agreement shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this letter agreement.
Subject to the following paragraph, this letter will remain in full
force and effect and may not be terminated or otherwise revoked until the full
and final repayment of all of the Certificates outstanding.
If Artesia sells the majority of shares in AMCC, Artesia may be
relieved of its obligations under this letter upon the satisfaction of all of
the following conditions:
1. the purchaser of those shares or another entity is willing to perform
the obligations of Artesia under this letter agreement;
2. the entity that is to assume the obligations of Artesia under this
letter agreement has a senior unsecured debt rating of no less than
"A2" from Moody's Investors Service, Inc. ("Moody's") and "A+" from
Fitch, Inc. ("Fitch"); and
3. Moody's and Fitch have confirmed in writing that the substitution of
the obligor hereunder will not result in the qualification, downgrade
or withdrawal of any rating assigned thereby to any Class of
Certificates.
<PAGE> 333
ARTESIA BANKING CORPORATION
By:__________________________
Name:
Title:
Acknowledged and agreed to as of the ___ day of
August, 2000,
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
By:_______________________________________
Name:
Title:
Acknowledged and agreed to as of the ___ day of
August, 2000,
WELLS FARGO BANK MINNESOTA, N.A.
As Trustee on behalf of itself and the Certificateholders
By:_______________________________________
Name:
Title:
<PAGE> 334
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C2
In connection with the administration of the Mortgage Files held by you
as custodian (in such capacity, the "Custodian") on behalf of the trustee under
a certain Pooling and Servicing Agreement, dated as of August 1, 2000 (the
"Pooling and Servicing Agreement"), among Salomon Brothers Mortgage Securities
VII, Inc., as depositor, the undersigned, as master servicer (in such capacity,
the "Master Servicer") and as special servicer, and Wells Fargo Bank Minnesota,
N.A., as trustee (the "Trustee"), the undersigned as Master Servicer hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by you with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
The undersigned hereby certifies that all amounts
received in connection with the Mortgage Loan that are required to be credited
to the Collection Account pursuant to the Pooling and Servicing Agreement, have
been or will be so credited.
______ 2. Other. (Describe)___________________________________________
_____________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in
accordance with the provisions of the Pooling and Servicing
Agreement and will be returned to you or your designee within
ten days of our receipt thereof, unless the
<PAGE> 335
Mortgage Loan has been paid in full, in which case the
Mortgage File (or such portion thereof) will be retained by us
permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
ORIX REAL ESTATE CAPITAL
MARKETS, LLC
as Master Servicer
By:______________________
Name:
Title:
2
<PAGE> 336
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Pass-Through Certificates, Series 2000-C2
In connection with the administration of the Mortgage Files held by you
as custodian (the "Custodian") on behalf of the Trustee (as defined below) under
a certain Pooling and Servicing Agreement, dated as of August 1, 2000 (the
"Pooling and Servicing Agreement"), among Salomon Brothers Mortgage Securities
VII, Inc., as depositor, the undersigned, as master servicer and as special
servicer (in such capacity, the "Special Servicer"), and Wells Fargo Bank
Minnesota, N.A., as trustee (the "Trustee"), the undersigned as Special Servicer
hereby requests a release of the Mortgage File (or the portion thereof specified
below) held by you as Custodian on behalf of the Trustee with respect to the
following described Mortgage Loan for the reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe) __________________________________________
_____________________________________________________________
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our
<PAGE> 337
receipt thereof, unless the Mortgage Loan is being foreclosed, in which case the
Mortgage File (or such portion thereof) will be returned when no longer required
by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
ORIX REAL ESTATE CAPITAL
MARKETS, LLC,
as Special Servicer
By:_______________________
Name:
Title:
2
<PAGE> 338
EXHIBIT E-1
FORM OF DISTRIBUTION DATE STATEMENT
<PAGE> 339
DISTRIBUTION DATE:
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
CONTACT INFORMATION
<TABLE>
<CAPTION>
FUNCTION NAMES / ADDRESSES
-------- -----------------
<S> <C>
MASTER SERVICER
Orix Real Estate Capital Markets, LLC.
1717 Main Street, 14th Floor
Dallas, TX 75201
SPECIAL SERVICER
Orix Real Estate Capital Markets, LLC.
1717 Main Street, 14th Floor
Dallas, TX 75201
PAYING AGENT
Chase Manhattan Bank
450 W. 33rd Street, 14th Floor
New York, NY 10001
(212) 946-3200
TRUSTEE
Norwest Bank Minnesota, N.A.
3 New York Plaza
New York, NY 10004
RELATIONSHIP MANAGER Jennifer Bohannon
(212) 946-7600
Email : [email protected]
</TABLE>
REPORTS AVAILABLE AT www.chase.com/sfa
TABLE OF CONTENTS
<TABLE>
<CAPTION>
STATEMENT SECTIONS PAGE(S)
------------------ -------
<S> <C>
Certificate Distribution Detail 2 - 7
Certificate Ratings Detail 8
Mortgage Loan Stratification Tables 9 - 11
Loan Status Detail 12
Property History Detail 13
Delinquency Loan Detail 14
Specially Serviced Loan Detail 15
Specially Serviced Historical Information 16
Principal Prepayment Detail 17
Modified Loan Detail 18
Realized Loss Detail 19
</TABLE>
The information contained herein has been obtained from sources believed to be
reliable, but The Chase Manhattan Bank does not warrant its completeness or
accuracy. All cashflows, prices, and yields herein were compiled by Chase from
sources associated with the transactions responsible for providing such
information for purposes of computing cashflows, prices and yields. Chase makes
no representations as to the appropriateness for any person of any investment in
the securities.
[LOGO]CHASE Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 340
DISTRIBUTION DATE: PAGE 2 OF 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
CERTIFICATE DISTRIBUTION DETAIL
Distribution in Dollars
<TABLE>
<CAPTION>
Class CUSIP Current Pass Original Face Beginning Principal Interest Prepayment Total Realized Ending
Through Rate Value Principal Premiums/Yield Losses/Trust Principal
Balance Maint Charges Expenses Balance
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A-1
A-2
B
C
D
E
F
G
H
J
K
L
M
N
P
R
------------------------------------------------------------------------------------------------------------------------------------
TOTALS
</TABLE>
<TABLE>
<CAPTION>
Class CUSIP Current Pass Original Face Beginning Principal Interest Prepayment Total Realized Ending
Through Rate Value Principal Premiums/Yield Losses/Trust Principal
Balance Maint Charges Expenses Balance
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
X
</TABLE>
[CHASE LOGO] Reports available at www.chase.com/sfa (C)2000, CHASE MANHATTAN
BANK
<PAGE> 341
DISTRIBUTION DATE: PAGE 3 OF 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
CERTIFICATE DISTRIBUTION DETAIL
Factor Information per $1,000 of Original Face
<TABLE>
<CAPTION>
Class CUSIP Beginning Principal Principal Interest Prepayment Total Realized Ending Principal
Factor Premiums/Yield Losses/Trust Balance
Maint Charges Expenses
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
A-1
A-2
B
C
D
E
F
G
H
J
K
L
M
N
P
R
----------------------------------------------------------------------------------------------------------------------
TOTALS
</TABLE>
<TABLE>
<CAPTION>
Class CUSIP Beginning Principal Principal Interest Prepayment Total Realized Ending Principal
Factor Premiums/Yield Losses/Trust Balance
Maint Charges Expenses
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
X
</TABLE>
[CHASE LOGO] Reports available at www.chase.com/sfa (C)2000, CHASE MANHATTAN
BANK
<PAGE> 342
DISTRIBUTION DATE: PAGE 4 OF 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
CERTIFICATE DISTRIBUTION DETAIL
<TABLE>
<S> <C>
Available Funds 0
Principal Distribution Amount 0
Scheduled Principal Distribution Amount 0
Unscheduled Principal Distribution Amount 0
Miscellaneous Trust Fund Expenses 0
Interest Reserve Account
Deposits 0
Withdrawals 0
</TABLE>
Balance Information
<TABLE>
<CAPTION>
Group Loan Scheduled Beginning Beginning Beginning Ending Ending Ending
Count at Balance at Loan Scheduled Unpaid Loan Scheduled Unpaid
Securitization Securitization Count Balance Balance Count Balance Balance
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
TOTALS
</TABLE>
Number and Aggregate Principal Amounts of Mortgage Loans in Delinquency
<TABLE>
<CAPTION>
Period Number Aggregated Percentage
Principal Balance
--------------------------------------------------------
<S> <C> <C> <C>
1 Month %
2 Months %
3+ Months %
In Foreclosure %
REO %
Bankruptcies %
--------------------------------------------------------
TOTALS %
</TABLE>
[LOGO]CHASE Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 343
DISTRIBUTION DATE: PAGE 5 OF 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
CERTIFICATE DISTRIBUTION DETAIL
Prepayment Penalties
<TABLE>
<CAPTION>
Class Prepayment Yield Maintenance
Premium
---------------------------------------
<S> <C> <C>
TOTALS
</TABLE>
<TABLE>
<S> <C>
Advance Summary
Principal & Interest Advances
Current Principal & Interest Advances 0
Outstanding Principal & Interest Advances 0
Reimbursement of Interest on any P&I Advances 0
Reimbursement of Interest on any T&I Advances 0
</TABLE>
[LOGO]CHASE Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 344
DISTRIBUTION DATE: PAGE 6 OF 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
CERTIFICATE DISTRIBUTION DETAIL
Fee Summary
<TABLE>
<S> <C>
Servicing Fees 0
Sub Servicing Fees 0
Trustee Fees 0
Special Servicer Fee 0
Workout Fee 0
</TABLE>
Appraisal Reduction Amounts
<TABLE>
<CAPTION>
Loan Number Appraisal Appraisal
Reduction Effected Reduction Amount
Date
---------------------------------------------------
<S> <C> <C>
none
</TABLE>
[LOGO]CHASE Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 345
DISTRIBUTION DATE: PAGE 7 OF 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
CERTIFICATE DISTRIBUTION DETAIL
Interest Detail
<TABLE>
<CAPTION>
Class Accrued Prepayment Beginning Interest Total Certificate Ending
Certificate Interest Unpaid Loss Interest Interest Unpaid
Interest Shortfall Interest Payable Distributable Interest
----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
A-1
A-2
B
C
D
E
F
G
H
J
K
L
M
N
R
P
X
----------------------------------------------------------------------------------------------
TOTALS
</TABLE>
[CHASE LOGO] Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN
BANK
<PAGE> 346
DISTRIBUTION DATE: PAGE 8 OF 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
CERTIFICATE RATINGS DETAIL
<TABLE>
<CAPTION>
Original Ratings Changed Ratings/Change Date(1)
Class CUSIP ----------------------------- ------------------------------
DCR Fitch Moody's S & P DCR Fitch Moody's S & P
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A1 N/A X X X X
A2 N/A X X X X
B N/A X X X X
C N/A X X X X
D N/A X X X X
E N/A X X X X
F N/A X X X X
G N/A X X X X
H N/A X X X X
J N/A X X X X
K N/A X X X X
L N/A X X X X
M N/A X X X X
N N/A X X X X
P N/A X X X X
R N/A X X X X
X N/A X X X X
</TABLE>
NR - Designates that the class was not rated by the above agency at the time of
original issuance.
N/A - Not applicable.
X - Designates that the rating agency did not rate class at the time of
issuance.
(1) The information contained herein has been received directly from the
applicable rating agency within 30 days of this report. It is possible that the
current ratings may have changed before the release of this report, hence, Chase
recommends contacting the rating agency listed below directly for more recent
information and further details supporting the rating issued for each class.
[LOGO]CHASE Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 347
DISTRIBUTION DATE: PAGE 9 OF 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
MORTGAGE LOAN STRATIFICATION TABLES
STRATIFICATION BY ENDING SCHEDULED BALANCE AMOUNT
<TABLE>
<CAPTION>
Weighted Average
# of Principal Balance % of Agg. -----------------------------
Ending Scheduled Balance Amount Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
$1,000,000 or Less 0 0.00 0 0.000000 0.000000
$1,000,001 to $2,000,000 0 0.00 0 0.000000 0.000000
$2,000,001 to $4,000,000 0 0.00 0 0.000000 0.000000
$4,000,001 to $6,000,000 0 0.00 0 0.000000 0.000000
$6,000,001 to $8,000,000 0 0.00 0 0.000000 0.000000
$8,000,001 to $10,000,000 0 0.00 0 0.000000 0.000000
$10,000,001 to $15,000,000 0 0.00 0 0.000000 0.000000
$15,000,001 to $20,000,000 0 0.00 0 0.000000 0.000000
--------------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
========================================================================================================
AVERAGE PRINCIPAL BALANCE : 0.00
</TABLE>
STRATIFICATION BY STATE CODE
<TABLE>
<CAPTION>
Weighted Average
# of Principal Balance % of Agg. -----------------------------
State Code Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
FLORIDA 0 0.00 0 0.000000 0.000000
---------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
</TABLE>
Reports Available at www.chase.com/sfa
[CHASE LOGO] (C)2000, CHASE MANHATTAN BANK
<PAGE> 348
DISTRIBUTION DATE: PAGE 10 OF 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
MORTGAGE LOAN STRATIFICATION TABLES
STRATIFICATION BY CURRENT NOTE RATE
<TABLE>
<CAPTION>
Weighted Average
# of Principal Balance % of Agg. -----------------------------
Current Note Rate Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
0.000000% to 7.500000% 0 0.00 0 0.000000 0.000000
7.510000% to 7.750000% 0 0.00 0 0.000000 0.000000
7.760000% to 8.000000% 0 0.00 0 0.000000 0.000000
8.010000% to 8.250000% 0 0.00 0 0.000000 0.000000
8.260000% to 8.500000% 0 0.00 0 0.000000 0.000000
8.510000% to 8.750000% 0 0.00 0 0.000000 0.000000
8.760000% to 9.000000% 0 0.00 0 0.000000 0.000000
9.010000% to 9.250000% 0 0.00 0 0.000000 0.000000
9.260000% to 9.500000% 0 0.00 0 0.000000 0.000000
9.510000% to 9.750000% 0 0.00 0 0.000000 0.000000
9.760000% to 10.000000% 0 0.00 0 0.000000 0.000000
10.010000% to 11.010000% 0 0.00 0 0.000000 0.000000
-------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
</TABLE>
STRATIFICATION BY DEBT SERVICE COVERAGE RATIO
<TABLE>
<CAPTION>
Weighted Average
# of Principal Balance % of Agg. -----------------------------
Debt Service Coverage Ratio Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
0.000000 to 1.000000 0 0.00 0 0.000000 0.000000
1.010000 to 1.200000 0 0.00 0 0.000000 0.000000
1.210000 to 1.240000 0 0.00 0 0.000000 0.000000
1.250000 to 1.300000 0 0.00 0 0.000000 0.000000
1.310000 to 1.400000 0 0.00 0 0.000000 0.000000
1.410000 to 1.500000 0 0.00 0 0.000000 0.000000
1.510000 to 1.600000 0 0.00 0 0.000000 0.000000
1.610000 to 1.700000 0 0.00 0 0.000000 0.000000
1.710000 to 1.800000 0 0.00 0 0.000000 0.000000
1.810000 to 1.900000 0 0.00 0 0.000000 0.000000
1.910000 to 2.000000 0 0.00 0 0.000000 0.000000
2.010000 to 2.300000 0 0.00 0 0.000000 0.000000
2.310000 to 2.400000 0 0.00 0 0.000000 0.000000
----------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
</TABLE>
STRATIFICATION BY REMAINING STATED TERM (BALLOON LOANS ONLY)
<TABLE>
<CAPTION>
Weighted Average
# of Principal Balance % of Agg. -----------------------------
Remaining Stated Term Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
70 months or Less 0 0.00 0 0.000000 0.000000
71 months to 90 months 0 0.00 0 0.000000 0.000000
91 months to 110 months 0 0.00 0 0.000000 0.000000
111 months to 115 months 0 0.00 0 0.000000 0.000000
116 months to 120 months 0 0.00 0 0.000000 0.000000
121 months to 200 months 0 0.00 0 0.000000 0.000000
201 months to 274 months 0 0.00 0 0.000000 0.000000
-------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
</TABLE>
STRATIFICATION BY REMAINING STATED TERM (FULLY AMORTIZING LOANS ONLY)
<TABLE>
<CAPTION>
Weighted Average
# of Principal Balance % of Agg. -----------------------------
Remaining Stated Term Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
70 months or Less 0 0.00 0 0.000000 0.000000
71 months to 90 months 0 0.00 0 0.000000 0.000000
91 months to 110 months 0 0.00 0 0.000000 0.000000
111 months to 115 months 0 0.00 0 0.000000 0.000000
116 months to 120 months 0 0.00 0 0.000000 0.000000
121 months to 200 months 0 0.00 0 0.000000 0.000000
201 months to 0 months 0 0.00 0 0.000000 0.000000
-------------------------------------------------------------------------------------------------
Totals 0 0.00 0 0.000000 0.000000
</TABLE>
Reports Available at www.chase.com/sfa
[CHASE LOGO] (C)2000, CHASE MANHATTAN BANK
<PAGE> 349
DISTRIBUTION DATE: Page 11 of 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
MORTGAGE LOAN STRATIFICATION TABLES
STRATIFICATION BY PROPERTY TYPE
<TABLE>
<CAPTION>
Weighted Average
# of Principal Balance % of Agg. --------------------------------------------
Property Type Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Office 0 0.00 0 0.000000 0.000000
Retail/Office 0 0.00 0 0.000000 0.000000
Hotel 0 0.00 0 0.000000 0.000000
Industrial 0 0.00 0 0.000000 0.000000
Multi-Family 0 0.00 0 0.000000 0.000000
Retail, Anchored 0 0.00 0 0.000000 0.000000
Retail,Unanchored 0 0.00 0 0.000000 0.000000
Mixed Use 0 0.00 0 0.000000 0.000000
Mobile Home 0 0.00 0 0.000000 0.000000
Self Storage 0 0.00 0 0.000000 0.000000
-----------------------------------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
=============================================================================================================================
</TABLE>
STRATIFICATION BY SEASONING
<TABLE>
<CAPTION>
Weighted Average
# of Principal Balance % of Agg. --------------------------------------------
Seasoning Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
12 months or Less 0 0.00 0 0.000000 0.000000
13 months to 24 months 0 0.00 0 0.000000 0.000000
25 months to 36 months 0 0.00 0 0.000000 0.000000
37 months to 48 months 0 0.00 0 0.000000 0.000000
49 months to 60 months 0 0.00 0 0.000000 0.000000
61 months to 72 months 0 0.00 0 0.000000 0.000000
73 months to 84 months 0 0.00 0 0.000000 0.000000
85 months to 96 months 0 0.00 0 0.000000 0.000000
97 months to 108 months 0 0.00 0 0.000000 0.000000
-----------------------------------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
=============================================================================================================================
</TABLE>
Debt Coverage Service Ratios are calculated as described in the prospectus,
values are updated periodically as new NOI figures become available from
borrowers on an asset level. The Trustee makes no representation as to the
accuracy of the data provided by the borrower for this calculation
[CHASE LOGO]
Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 350
DISTRIBUTION DATE: Page 12 of 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
LOAN STATUS DETAIL
<TABLE>
<CAPTION>
Loan Offering Property City State Scheduled Scheduled Note Maturity Neg Beginning Ending
Number Memo Type Principal Interest Rate Date Amt Scheduled Scheduled
Cross (I) Amount Amount Flag Balance Balance
Reference
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Loan Paid Appraisal Appraisal Has Loan Loan
Number Through Reduction Reduction Ever Been Status
Date Date Amount Specially Code
Serviced? (II)
(Y/N)
-------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
(I) Property Type Code :
CH Church
CO Condo, Coop or TH
HC Health Care
HO Hotel
IF Industrial/Flex
IN Industrial
LO Lodging
MF Multi Family
MH Mobile Home Park
MP Multiple Properties
MS Mini Storage
MU Mixed Use
NE Non-Exempt
OF Office
OT Other
PD Plan Unit Development
RO Retail/Office
RT Retail
SC School, HCF or WF
SE Securities
SF Single Family
SS Self Storage
WH Warehouse
(II) Loan Status Code :
1. Specially Serviced
2. Foreclosure
3. Bankruptcy
4. REO
5. Prepayment in Full
6. Discounted Payoff
7. Foreclosure Sale
8. Bankruptcy Sale
9. REO Disposal
10. Modification/Workout
11. Rehabilitation
[CHASE LOGO]
Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 351
DISTRIBUTION DATE: Page 13 of 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
PROPERTY HISTORY DETAIL
<TABLE>
<CAPTION>
Data of Last
-------------------------- No. Months
Offering Memo Financial Revenue
Loan Number Cross Reference Property Name Inspection Statement Annualized
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Annual Estimate based on
Current Quarter Prior Full Year
--------------------------- ----------------------------
Loan Number NOI DSCR Occupancy NOI DSCR Occupancy
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
NO PROPERTY HISTORY REPORTED THIS PERIOD
[CHASE LOGO]Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 352
DISTRIBUTION DATE: Page 14 of 19
RECORD DATE:
CLOSING DATE:
NEXT PMT DATE:
MATURITY DATE:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
DELINQUENCY LOAN DETAIL
<TABLE>
<CAPTION>
Loan Number Offering # of Months Paid Through Current Loan Balance Current Outstanding P&I Advance
Memo Cross Delinquent Date P&I Advances ** Description
Reference Advances (I)
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
NO DELINQUENT LOANS REPORTED THIS PERIOD
</TABLE>
<TABLE>
<CAPTION>
Current Outstanding Outstanding
Loan Number Loan Special Foreclosure Property Property Property
Status Servicer Date Protection Protection Bankruptcy REO
(II) Start Date Advances Advances Date Date
----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
NO DELINQUENT LOANS REPORTED THIS PERIOD
</TABLE>
(I) Advance Description: A. In grace period
B. Late but < 1 month
1. 1 month delinquent
2. 2 months delinquent
3. 3+ months delinquent
** Outstanding P&I advances include current period.
(II) Loan Status Code: 1. Specially Serviced
2. Foreclosure
3. Bankruptcy
4. REO
5. Prepayment in Full
6. Discounted Payoff
7. Foreclosure Sale
8. Bankruptcy Sale
9. REO Disposal
10. Modification/Workout
11. Rehabilitation
[CHASE LOGO]Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 353
DISTRIBUTION DATE : Page 15 of 19
RECORD DATE :
CLOSING DATE :
NEXT PMT DATE :
MATURITY DATE :
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
SPECIALLY SERVICED LOAN DETAIL LOAN
<TABLE>
<CAPTION>
Loan Special Offering Property Date of Transfer Inspection Appraisal Appraisal Comments
Number Service Memo Type Balance to Specially Date Date Value
Code Cross Code Serviced
(II) Reference (I)
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
NO SPECIALLY SERVICED LOANS REPORTED THIS PERIOD
</TABLE>
(I) Property Type Code :
CH Church
CO Condo, Coop or TH
HC Health Care
HO Hotel
IF Industrial/Flex
IN Industrial
LO Lodging
MF Multi Family
MH Mobile Home Park
MP Multiple Properties
MS Mini Storage
MU Mixed Use
NE Non-Exempt
OF Office
OT Other
PD Plan Unit Development
RO Retail/Office
RT Retail
SC School, HCF or WF
SE Securities
SF Single Family
SS Self Storage
WH Warehouse
(II) Special Service Code :
(1) Request to waive prepayment penalty
(2) Payment default
(3) Request to modify or workout
(4) Borrower Bankruptcy
(5) In Foreclosure
(6) Now REO
(7) Paid Off
(8) Returned to Master Servicer
[LOGO]CHASE Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 354
DISTRIBUTION DATE : Page 16 of 19
RECORD DATE :
CLOSING DATE :
NEXT PMT DATE :
MATURITY DATE :
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
SPECIALLY SERVICED HISTORICAL INFORMATION
<TABLE>
<CAPTION>
Distribution Loan Offering Special Date Current Balance Property State
Date Number Memo Service of Scheduled Change since Type
Cross Code Correction Balance Transfer Code
Reference (II) Date (I)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
NO SPECIALLY SERVICED LOANS REPORTED THIS PERIOD
</TABLE>
<TABLE>
<CAPTION>
Distribution Loan Interest Net NOI Debt Note Paid Maturity Rem
Date Number Rate Operating Date Service Date Through Date Term
Income Coverage Date
Ratio
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NO SPECIALLY SERVICED LOANS REPORTED THIS PERIOD
</TABLE>
(I) PROPERTY TYPE CODE :
CH Church
CO Condo, Coop or TH
HC Health Care
HO Hotel
IF Industrial/Flex
IN Industrial
LO Lodging
MF Multi Family
MH Mobile Home Park
MP Multiple Properties
MS Mini Storage
MU Mixed Use
NE Non-Exempt
OF Office
OT Other
PD Plan Unit Development
RO Retail/Office
RT Retail
SC School, HCF or WF
SE Securities
SF Single Family
SS Self Storage
WH Warehouse
(II) Special Service Code :
(1) Request to waive prepayment penalty
(2) Payment default
(3) Request to modify or workout
(4) Borrower Bankruptcy
(5) In Foreclosure
(6) Now REO
(7) Paid Off
(8) Returned to Master Servicer
[LOGO]CHASE Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 355
DISTRIBUTION DATE : PAGE 17 OF 19
RECORD DATE :
CLOSING DATE :
NEXT PMT DATE :
MATURITY DATE :
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
PRINCIPAL PREPAYMENT DETAIL
<TABLE>
<CAPTION>
Principal Loan Offering Property Curtailment Payoff Prepayment Mortgage
Prepayment Number Memo Type Amount Amount Premium Repurchase
Date Cross (I) Price
Reference
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
NO PRINCIPAL PREPAYMENT REPORTED THIS PERIOD
</TABLE>
(I) PROPERTY TYPE CODE :
CH Church
CO Condo, Coop or TH
HC Health Care
HO Hotel
IF Industrial/Flex
IN Industrial
LO Lodging
MF Multi Family
MH Mobile Home Park
MP Multiple Properties
MS Mini Storage
MU Mixed Use
NE Non-Exempt
OF Office
OT Other
PD Plan Unit Development
RO Retail/Office
RT Retail
SC School, HCF or WF
SE Securities
SF Single Family
SS Self Storage
WH Warehouse
[LOGO]CHASE Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 356
DISTRIBUTION DATE : PAGE 18 OF 19
RECORD DATE :
CLOSING DATE :
NEXT PMT DATE :
MATURITY DATE :
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
MODIFIED LOAN DETAIL
<TABLE>
<CAPTION>
Loan Offering Modification Modification Description
Number Memorandum Date
Cross
Reference
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
NO MODIFIED LOANS REPORTED THIS PERIOD
</TABLE>
[LOGO]CHASE Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 357
DISTRIBUTION DATE : PAGE 19 OF 19
RECORD DATE :
CLOSING DATE :
NEXT PMT DATE :
MATURITY DATE :
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C2
STATEMENT TO CERTIFICATEHOLDERS
REALIZED LOSS DETAIL
<TABLE>
<CAPTION>
Loan Offering Appraisal Appraisal Beginning Gross Gross Liquidation Net Net Realized
Number Memo Date Value Scheduled Proceeds Proceeds % Expenses Liquidation Proceeds % Loss
Cross Balance Scheduled Proceeds Scheduled
Reference Principal Balance
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NO REALIZED LOSSES REPORTED THIS PERIOD
</TABLE>
[LOGO]CHASE Reports Available at www.chase.com/sfa (C)2000, CHASE MANHATTAN BANK
<PAGE> 358
EXHIBIT E-2A
FORM OF LOAN PERIODIC UPDATE FILE
[See Attached Schedule]
<PAGE> 359
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<TABLE>
<CAPTION>
SPECIFICATION DESCRIPTION/COMMENTS
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each Loan Group
Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each Collateral
Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each Collateral
Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Scheduled
Balance 6 Numeric 100000.00 Outstanding Sched Prin Bal at Beginning of current
period that is part of the trust
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of current period that
is part of the trust
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One frequency less than the
date the loan is due for next payment
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The Current
Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate The
Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
</TABLE>
<PAGE> 360
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<TABLE>
<S> <C> <C> <C> <C>
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Net Rate 18 Numeric 0.0947 Annualized Interest Rate Applicable To Calculate The
Current Period Remittance Int.
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next Period
Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc Of The
Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To Change
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period that goes to the trust
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current Period
that goes to the trust
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest Payment Due For Current
Period for the trust
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due For
The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During The
Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To Prepayment
Of Loan Prior To Maturity
Prepayment Interest Excess
(Shortfall) 31 Numeric 1000.00 Interest Shortfall or Excess as calculated by Servicer
per the Trust documents
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement Reduction - The
difference between a full advance and the reduced
advance is the ASER or as defined in the Trust documents
</TABLE>
3
<PAGE> 361
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<TABLE>
<S> <C> <C> <C> <C>
Blank 34 AN Blank Left blank on purpose. (Note: was previously Most Recent
ASER Date. Field not considered applicable to ASER.)
Cumulative ASER Amount 35 Numeric 1000.00 Cumulative Appraisal Subordinated Entitlement Reduction
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of The
Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of The
Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else "N")
Foreclosure Date 42 AN YYYYMMDD P27 - If Multiple properties have the same date then
print that date otherwise leave empty
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have the same date then
print that date otherwise leave empty
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on
Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted to the
Trust per the Trust Documents
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted from the
Trust per the Trust Documents
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds
Received (as defined in Trust documents)
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 P54 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year Operating
Expenses 53 Numeric 1000.00 P55 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year Debt Svc
Amount 55 Numeric 1000.00 P57 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
</TABLE>
4
<PAGE> 362
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Preceding Fiscal Yr Debt Svc
Cvrge Ratio using NOI
Preceding Fiscal Year Physical
Occupancy 57 Numeric 0.85 P59 - If Multiple properties, Use weighted average by
using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any
then leave empty
Preceding Fiscal Year Financial
As of Date 58 AN YYYYMMDD P53 - If Multiple properties and all the same then print
the date, if missing any then leave empty
Second Preceding Fiscal Year
Revenue 59 Numeric 1000.00 P61 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year
Operating Expenses 60 Numeric 1000.00 P62 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year Debt
Service Amount 62 Numeric 1000.00 P64 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year DSCR
(NOI) 63 Numeric 2.55 P65 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Second Preceding Fiscal Year
Debt Service Coverage Ratio using NOI
Second Preceding Fiscal Year
Physical Occupancy 64 Numeric 0.85 P66 - If Multiple properties, Use weighted average by
using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any
then leave empty
Second Preceding Fiscal Year
Financial As of Date 65 AN YYYYMMDD P60 - If Multiple properties and all the same then print
the date, if missing any then leave empty
Most Recent Revenue 66 Numeric 1000.00 P68 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
</TABLE>
5
<PAGE> 363
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<TABLE>
<S> <C> <C> <C> <C>
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Most Recent Debt Service
Coverage Ratio using NOI
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use weighted average by
using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any
then leave empty
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Most Recent Financial As of Start
Date 72 AN YYYYMMDD P73 - If Multiple properties and all the same then print
the date, if missing any then leave empty
Most Recent Financial As of End
Date 73 AN YYYYMMDD P74 - If Multiple properties and all the same then print
the date, if missing any then leave empty
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all the same then print
the date, if missing any then leave empty
Most Recent Appraisal Value 75 Numeric 100000.00 P25 - If Multiple properties then sum the value, if
missing any then leave empty
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Special Servicer
Transfer Date 77 AN YYYYMMDD Date Transferred To The Special Servicer
Most Recent Master Servicer
Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer or Primary Servicer
Date Asset Expected to Be
Resolved or Foreclosed 79 AN YYYYMMDD P26 - If Multiple properties then print the latest date
from the affiliated properties. If in Foreclosure -
Expected Date of Foreclosure and if REO - Expected Sale
Date.
Blank 80 AN Blank Left blank on purpose. (Note : was previously Year
Renovated. Use the Property File field 15 instead)
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment Date. Date will be
the same as setup file unless the loan is modified and a
new date assigned
Most Recent Financial Indicator 82 AN T or Y P75 - T= Trailing 12 months Y = Year to Date, Check
Start & End Date Applies to field L66 to L73. If
Multiple properties and all the same then print the
value, if missing any or if the values are not the same,
then leave empty
</TABLE>
6
<PAGE> 364
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<TABLE>
<S> <C> <C> <C> <C>
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that information changed last in
the setup file by loan
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or properties were
contributed. For Multiple properties print the latest
date from the affiliated properties
Number of Properties 86 Numeric 13.00 S54 - The Number of Properties Underlying the Mortgage
Loan
Preceding Year DSCR Indicator 87 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
Second Preceding Year DSCR
Indicator 88 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was calculated should
be the same for each financial period. See NOI/NCF
Indicator Legend. P84 - If Multiple Properties and all
the same then print value, if missing any or if the
values are not the same, then leave empty.
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new borrower- empty if
never assumed
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash Flow related to
Financial As of Date L58. If Multiple properties then
sum the value, if missing any then populate using the
"DSCR Indicator Legend" rule
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt Service Coverage Ratio
using NCF related to Financial As of Date L58. If
Multiple properties populate using the "DSCR Indicator
Legend" rule.
Second Preceding Fiscal Year NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year Net Cash Flow related
to Financial As of Date L65. If Multiple properties
then sum the value, if missing any then populate using
the "DSCR Indicator Legend" rule
Second Preceding Fiscal Year DSCR
(NCF) 95 Numeric 2.55 P81 - Second Preceding Fiscal Year Debt Service Coverage
Ratio using Net Cash Flow related to Financial As of
Date L65. If Multiple properties populate using the
"DSCR Indicator Legend" rule.
</TABLE>
7
<PAGE> 365
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<TABLE>
<S> <C> <C> <C> <C>
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow related to Financial As
of Ending Date L73. If Multiple properties then sum
the value, if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service Coverage Ratio using Net
Cash Flow related to Financial As of Ending Date L73.
If Multiple properties populate using the "DSCR
Indicator Legend" rule.
Defeasance Status 98 AN Text See Defeasance Status Legend
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess of the principal
balance over the defined appraisal % or as defined in
the trust documents
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate ARA
Credit Tenant Lease 101 AN Y S87 - Y=Yes, N=No
Excess Liquidation Proceeds 102 Numeric 1000.00 The Net Liquidation Proceeds from the sale or
liquidation of a Specially Serviced Mortgage Loan or REO
property net of (I) interest on related advances (ii)
any related Servicing Advances over (b) the amount
needed to pay off the mortgage loan or related Mortgage
Loan in full
Excess Interest Amount 103 Numeric 1000.00 Any ARD Loan after its Anticipated Repayment Date, all
interest accrued on the principal balance of such ARD
Loan at the Post-ARD Additional Interest Rate.
</TABLE>
<TABLE>
<CAPTION>
WORKOUT STRATEGY CODE LEGEND
<S> <C>
1 Modification
2 Foreclosure
3 Bankruptcy
4 Extension
5 Note Sale
6 DPO
7 REO
8 Resolved
9 Pending Return to Master Servicer
10 Deed In Lieu Of Foreclosure
11 Full Payoff
12 Reps and Warranties
13 Other or TBD
</TABLE>
8
<PAGE> 366
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<TABLE>
<CAPTION>
STATUS OF MORTGAGE LOAN
LEGEND
<S> <C>
A Payment Not Received But Still In Grace Period
B Late Payment But Less Than 30 days Delinquent
0 Current
1 30-59 Days Delinquent
2 60-89 Days Delinquent
3 90+ Days Delinquent
4 Assumed Scheduled Payment (Performing Matured Balloon)
7 Foreclosure
9 REO
</TABLE>
<TABLE>
<CAPTION>
LIQUIDATION/PREPAYMENT CODE
LEGEND
<S> <C>
1 Partial Liq'n (Curtailment)
2 Payoff Prior To Maturity
3 Disposition
4 Repurchase/ Substitution
5 Full Payoff At Maturity
6 DPO
7 Liquidation
8 Payoff w/ penalty
9 Payoff w/ yield Maintenance
10 Curtailment w/ Penalty
11 Curtailment w/ Yield Maintenance
</TABLE>
<TABLE>
<CAPTION>
DEFEASANCE STATUS
LEGEND
<S> <C>
P Partial Defeasance
F Full Defeasance
N No Defeasance Occurred
X Defeasance not Allowable
</TABLE>
<TABLE>
<CAPTION>
MODIFICATION
CODE
LEGEND
<S> <C>
1 Maturity Date Extension
2 Amortization Change
3 Principal Write-Off
4 Combination
</TABLE>
<TABLE>
<CAPTION>
DSCR INDICATOR
LEGEND
<S> <C>
P Partial - Not all properties received financials, servicer to leave empty
A Average - Not all properties received financials, servicer allocates Debt Service
only to properties where financials are received.
F Full - All Statements Collected for all properties
W Worst Case - Not all properties received financials, servicer allocates 100% of Debt
Service to all properties where financials are received.
N None Collected - no financials were received
C Consolidated - All properties reported on one "rolled up" financial from the borrower
</TABLE>
<TABLE>
<CAPTION>
NOI/NCF INDICATOR
LEGEND
<S> <C>
CMSA Calculated using CMSA standard
PSA Calculated using a definition given in the PSA
U/W Calculated using the underwriting method
</TABLE>
9
<PAGE> 367
EXHIBIT E-2B
FORM OF PROPERTY FILE
[See Attached Schedule]
<PAGE> 368
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT )
CROSS REFERENCED AS "P"
<TABLE>
<CAPTION>
SPECIFICATION DESCRIPTION/COMMENTS
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
<S> <C> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic S1, L1
Loan ID 2 AN XXX9701A Unique Servicer Loan Number Assigned To Each S3, L3
Collateral Item In A Pool
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To Each S4, L4
Collateral Item In The Prospectus
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001-001, 1000-002
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders L5
Cross-Collateralized Loan S75
Grouping 6 AN Text All Loans With The Same Value Are Crossed, For
example : "X02-1" would be populated in this field
for all related loans, "X02-2" would be populated
for the next group of related loans.
Property Name 7 AN Text S55
Property Address 8 AN Text S56
Property City 9 AN Text S57
Property State 10 AN FL S58
Property Zip Code 11 AN 30303 S59
Property County 12 AN Text S60
Property Type Code 13 AN MF S61
Year Built 14 AN YYYY S64
Year Last Renovated 15 AN YYYY
Net Square Feet At Contribution 16 Numeric 25000 RT, IN, WH, OF, MU, OT S62
# Of Units/Beds/Rooms At
Contribution 17 Numeric 75 MF, MH, LO,MU, HC, SS S63
</TABLE>
<PAGE> 369
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT )
CROSS REFERENCED AS "P"
<TABLE>
<S> <C> <C> <C> <C>
Property Status 18 AN 1 1=FCL, 2=REO, 3=Defeased, 4=Partial Release, 5=
Released, 6= Same as at Contribution
Allocated Percentage of Loan at 19 Numeric 0.75 Issuer to allocate loan % attributable to property
Contribution for multi-property loans
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
<S> <C> <C> <C> <C> <C>
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not supplied in by Issuer
or Underwriter, use Underwritting NOI or NCF to
calculate
Current Allocated Ending 21 Numeric 5900900.00 Calculation based on Current Allocated Percentage L7
Scheduled Loan Amount and Current Ending Scheduled Principal Balance (L7)
for associated loan.
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinate, N= No ground lease S74
Total Reserve Balance 23 Numeric 25000.00 For Maintenance, Repairs, & Environmental. (Excludes S77
Tax & Insurance Escrows). An amount should be
printed if the value in Setup File field 77 is "Y"
Most Recent Appraisal Date 24 AN YYYYMMDD L74
Most Recent Appraisal Value 25 Numeric 1000000.00 L75
Date Asset Expected to Be 26 AN YYYYMMDD Could be different dates for different properties. L79
Resolved or Foreclosed If in Foreclosure - Expected Date of Foreclosure and
if REO - Expected Sale Date.
Foreclosure Date 27 AN YYYYMMDD L42
REO Date 28 AN YYYYMMDD L43
Most Recent Physical Occupancy 29 Numeric 0.75 L71
Occupancy As of Date 30 AN YYYYMMDD Typically should be the effective date of the Rent
Roll
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months 32 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 13-24 months 33 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 25-36 months 34 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 37-48 months 35 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 49-60 months 36 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of 3rd Largest Tenant 42 Numeric 15000
</TABLE>
2
<PAGE> 370
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT )
CROSS REFERENCED AS "P"
<TABLE>
<S> <C> <C> <C> <C> <C>
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for borrower's
Fiscal Year. For example : "12"
Contribution Financials As Of Date 44 AN YYYYMMDD S72
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if available. At the S70
Property Level
Operating Expenses At Contribution 46 Numeric 1000000.00 Should match the prospectus if available. At the S71
Property Level
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if available. At the S65
Property Level
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
<S> <C> <C> <C> <C> <C>
DSCR (NOI) At Contribution 48 Numeric 1.5 Should match the prospectus if available. S66
Appraisal Value At Contribution 49 Numeric 1000000.00 S67
Appraisal Date At Contribution 50 AN YYYYMMDD S68
Physical Occupancy At Contribution 51 Numeric 0.9 S69
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
Preceding Fiscal Year Financial As 53 AN YYYYMMDD L58
of Date
Preceding Fiscal Year Revenue 54 Numeric 1000000.00 L52
Preceding Fiscal Year Operating 55 Numeric 1000000.00 L53
Expenses
Preceding Fiscal Year NOI 56 Numeric 1000000.00 L54
Preceding Fiscal Yr Debt Service 57 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated L55
Amount amount for each property
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.3 Uses the property NOI and the allocated debt service L56
amount
Preceding Fiscal Year Physical 59 Numeric 0.9 L57
Occupancy
Second Preceding FY Financial As 60 AN YYYYMMDD L65
of Date
Second Preceding Fiscal Year 61 Numeric 1000000.00 L59
Revenue
Second Preceding FY Operating 62 Numeric 1000000.00 L60
Expenses
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00 L61
Second Preceding FY Debt Service 64 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated L62
Amount amount for each property
Second Preceding Fiscal Year DSCR 65 Numeric 1.3 Uses the property NOI and the allocated debt service L63
(NOI) amount
Second Preceding FY Physical 66 Numeric 0.9 L64
Occupancy
Property Contribution Date 67 AN YYYYMMDD Date Property was contributed L85
Most Recent Revenue 68 Numeric 1000000.00 Most Recent Revenue L66
Most Recent Operating Expenses 69 Numeric 1000000.00 Most Recent Operating Expenses L67
Most Recent NOI 70 Numeric 1000000.00 Most Recent Net Operating Income L68
Most Recent Debt Service Amount 71 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated L69
amount for each property
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the allocated debt service L70
amount
</TABLE>
3
<PAGE> 371
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT )
CROSS REFERENCED AS "P"
<TABLE>
<S> <C> <C> <C> <C> <C>
Most Recent Financial As of Start 73 AN YYYYMMDD Start date used to calculate Most Recent information L72
Date either YTD or trailing 12 months
Most Recent Financial As of End 74 AN YYYYMMDD End date used to calculate Most Recent information L73
Date either YTD or trailing 12 months
Most Recent Financial Indicator 75 AN T or Y T= Trailing 12 months Y = Year to Date L82
NCF At Contribution 76 Numeric 1000000.00 Net Cash Flow At Contribution. Should match the S83
prospectus if available.
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to calculate. Should S84
match the prospectus if available.
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow related to L92
Financial As of Date P53.
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
<S> <C> <C> <C> <C> <C>
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage Ratio L93
using NCF related to Financial As of Date P53.
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash Flow related L94
to Financial As of Date P60.
Second Preceding FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service Coverage L95
Ratio using Net Cash Flow related to Financial As of
Date P60.
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to Financial As of L96
Date P74.
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio using Net L97
Cash Flow related to Financial As of Date P74.
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was calculated L90
should be the same for each financial period. See
NOI/NCF Indicator Legend.
Deferred Maintenance Flag 85 AN N Either Y=Yes or N= No, Deferred Maintenance
</TABLE>
<TABLE>
<CAPTION>
PROPERTY TYPES CODE
LEGEND
<S> <C>
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
SE Securities
</TABLE>
4
<PAGE> 372
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT )
CROSS REFERENCED AS "P"
<TABLE>
<CAPTION>
NOI/NCF INDICATOR
LEGEND
<S> <C>
CMSA Calculated using CMSA standard
PSA Calculated using a definition given in the PSA
U/W Calculated using the underwriting method
</TABLE>
5
<PAGE> 373
EXHIBIT E-2C
FORM OF LOAN SET-UP FILE
[See Attached Schedule]
<PAGE> 374
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
<TABLE>
<CAPTION>
SPECIFICATION DESCRIPTION/COMMENTS
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Number Assigned To Each
Collateral Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted To
Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78's
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
</TABLE>
2
<PAGE> 375
<TABLE>
<S> <C> <C> <C> <C>
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
Prepayment Terms Description 21 AN Text Should reflect the information in Annex A or use the
format of LO(36), YM(28), 7(12), O(3). If manually
derived, the Cutoff Date should be the start date for
period counting.
ARM Index Code 22 AN A See Arm Index Code Legend
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of The
Gross Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm Loan
Per The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm Loan
Per The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed Per
The Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Decrease To The Note Rate Allowed Per
The Loan Agreement
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Max Periodic % Increase To The P&I Payment Allowed Per
The Loan Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Max Periodic Dollar Increase To The P&I Payment
Allowed Per The Loan Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually
Rate Reset Frequency 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
Pay Reset Frequency 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin (See
Rounding Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed 38 AN Y Y=Yes, N=No
(Y/N)
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Max Lifetime % Increase to the Original Balance
Allowed Per The Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Max Lifetime Dollar Increase to the Original Balance
Allowed Per The Loan Agreement
Remaining Term At Contribution 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan At
Cutoff
Remaining Amort Term At 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At
Contribution Cutoff
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan At
Contribution
Scheduled Principal Balance At 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage Loan
Contribution At Contribution
Note Rate At Contribution 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable To
The Calculation Of Scheduled Interest
</TABLE>
3
<PAGE> 376
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
<TABLE>
<S> <C> <C> <C> <C>
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Net Rate At Contribution 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The
Calculation Of Remittance Interest
Periodic P&I Payment At 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment at
Contribution Contribution
# Of Properties at Contribution 54 Numeric 13 L86 - The Number Of Properties Underlying The Mortgage
Loan
Property Name 55 AN Text P7 - If Multiple properties print "Various"
Property Address 56 AN Text P8 - If Multiple properties print "Various"
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Property City 57 AN Text P9 - If Multiple properties have the same city then
print the city, otherwise print "Various". Missing
information print "Incomplete"
Property State 58 AN Text P10 - If Multiple properties have the same state then
print the state, otherwise print "XX" to represent
various. Missing information print "ZZ"
Property Zip Code 59 AN Text P11 - If Multiple properties have the same zip code
then print the zip code, otherwise print "Various".
Missing information print "Incomplete"
Property County 60 AN Text P12 - If Multiple properties have the same county then
print the county, otherwise print "Various". Missing
information print "Incomplete"
Property Type Code 61 AN MF P13 - If Multiple properties have the same property
type code then print the property code, otherwise
print "XX" to represent various. Missing information
print "ZZ"
Net Square Feet At Contribution 62 Numeric 25000 P16 - For Multiple properties, if all the same
Property Type, sum the values, if missing any leave empty
# Of Units/Beds/Rooms At 63 Numeric 75 P17 - For Multiple properties, if all the same
Contribution Property Type, sum the values, if missing any leave empty
Year Built 64 AN YYYY P14 - If Multiple properties have the same Year Built
then print Year Built else leave empty
NOI At Contribution 65 Numeric 100000.00 P47 - If Multiple properties sum the values, if
missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if available.
</TABLE>
4
<PAGE> 377
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
<TABLE>
<S> <C> <C> <C> <C>
DSCR (NOI) At Contribution 66 Numeric 2.11 P48 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. DSCR At Contribution using NOI.
Should match the prospectus if available.
Appraisal Value At Contribution 67 Numeric 1000000.00 P49 - If Multiple properties sum the values, if missing
any then leave empty
Appraisal Date At Contribution 68 AN YYYYMMDD P50 - If Multiple properties and all the same then print
the date, if missing any then leave empty
Physical Occupancy At 69 Numeric 0.88 P51 - If Multiple properties, Use weighted average by
Contribution using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing one then
leave empty
Revenue At Contribution 70 Numeric 100000.00 P45 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if available.
Operating Expenses At 71 Numeric 100000.00 P46 - If Multiple properties then sum the value, if
Contribution missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if available.
Contribution Financials As Of 72 AN YYYYMMDD P44 - If Multiple properties and all the same then
Date print the date, if missing any then leave empty
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/S/N) 74 AN Y Y=Yes, S=Subordinate, N= No ground lease, P22 - If
Multiple properties and any one property is "Y" or "S"
print "Y"
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Cross-Collateralized Loan 75 AN Text P6 - All Loans With The Same Value Are Crossed, For
Grouping example : "X02-1" would be populated in this field for
all related loans, "X02-2" would be populated for the
next group of related loans.
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No - Referring to Taxes and Insurance
Collection Of Other Reserves 77 AN Y Y=Yes, N=No - Referring to Reserves other than Taxes
(Y/N) and Insurance. If any property has a value > 0 in
P23, this field should be "Y"
Lien Position At Contribution 78 Numeric 1 1=First, 2=Second...
Hyper Amortizing Begin Date 79 AN YYYYMMDD L81 - Date used to track Anticipated Repayment Date Loans
Defeasance Option Start Date 80 AN YYYYMMDD Date loan can start defeasance
Defeasance Option End Date 81 AN YYYYMMDD Date that defeasance ends
Last Setup Change Date 82 AN YYYYMMDD L83 - Distribution Date that the information was last
changed by loan
</TABLE>
5
<PAGE> 378
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
<TABLE>
<S> <C> <C> <C> <C>
NCF At Contribution 83 Numeric 100000.00 P76 - If Multiple properties sum the values, if
missing any then populate using the "DSCR Indicator
Legend" rule. Net Cash Flow At Contribution. Should
match the prospectus if available.
DSCR (NCF) At Contribution 84 Numeric 2.11 P77 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. DSCR At Contribution using NCF
to calculate. Should match the prospectus if available.
DSCR Indicator at Contribution 85 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator Legend.
Loan Contributor to Securitization 86 AN Text Name of entity ultimately responsible for the reps and
warranties of the loan contributed
Credit Tenant Lease 87 AN Y L101 - Y=Yes, N=No
</TABLE>
<TABLE>
<CAPTION>
ROUNDING CODE
LEGEND
<S> <C>
1 Unrounded
2 Nearest Percentage Increment
3 Up To Nearest Percentage Increment
4 Down To Nearest Percentage Increment
</TABLE>
<TABLE>
<CAPTION>
PROPERTY TYPES CODE
LEGEND
<S> <C>
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
SE Securities
</TABLE>
<TABLE>
<CAPTION>
ARM INDEX CODE
LEGEND
<S> <C>
A 11 FHLB COFI (1 Month)
B 11 FHLB COFI (6 Month)
C 1 Year CMT Weekly Average Treasury
D 3 Year CMT Weekly Average Treasury
E 5 Year CMT Weekly Average Treasury
F Wall Street Journal Prime Rate
G 1 Month LIBOR
H 3 Month LIBOR
I 6 Month LIBOR
J National Mortgage Index Rate
All Others Use Short Text Description
</TABLE>
<TABLE>
<CAPTION>
PAYMENT TYPE CODE
LEGEND
<S> <C>
1 Fully Amortizing
2 Amortizing Balloon
3 Interest Only / Balloon
4 Interest Only / Amortizing
5 Interest Only / Amortizing / Balloon
6 Principal Only
7 Hyper-Amortization
9 Other
</TABLE>
6
<PAGE> 379
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
<TABLE>
<CAPTION>
DSCR INDICATOR
LEGEND
<S> <C>
P Partial - Not all properties received financials,
servicer to leave empty
A Average - Not all properties received financials,
servicer allocates Debt Service only to properties
where financials are received.
F Full - All Statements Collected for all properties
W Worst Case - Not all properties received financials,
servicer allocates 100% of Debt Service to all
properties where financials are received.
N None Collected - no financials were received
C Consolidated-All properties reported on 1 "rolled up"
financial from the borrower
</TABLE>
7
<PAGE> 380
EXHIBIT E-3
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
[See Attached Schedule]
<PAGE> 381
CMSA Investor Reporting Package
COMPARATIVE FINANCIAL STATUS REPORT
as of ________________
(Property Level Report)
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------
P44 P51 P45 P47 or P76 P48 or P77 P60 P66 P61 P63 or P80 P65 or P81
-------------------------------------------------------------------------------------------------------------
Original Underwriting 2nd Preceding Annual Operating
-------------------------------------------------------------------------------------------------------------
Information Information
-------------------------------------------------------------------------------------------------------------
Base Year as of _______ Normalized
-------------------------------------------------------------------------------------------------------------
Financial % Total $ (1) Financial % Total $ (1)
Info Occ Revenue NOI/NCF DSCR Info Occ Revenue NOI/NCF DSCR
as of as of
Date Date
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yyyymmdd yyyymmdd
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
** WA $ $ WA WA $ $ WA
-------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
P53 P59 P54 P56 or P78 P58 or P79 P73 P74 P30 P29 P68 P70 or P82
-----------------------------------------------------------------------------------------------------------------------------------
Preceding Annual Operating Most Recent Financial
-----------------------------------------------------------------------------------------------------------------------------------
Information Information
-----------------------------------------------------------------------------------------------------------------------------------
as of _______ Normalized * Normalized or Actual
-----------------------------------------------------------------------------------------------------------------------------------
Financial % Total $ (1) FS Start FS End Occ As of % Total $
Info Occ Revenue NOI/NCF DSCR Date Date Date Occ Revenue NOI/NCF
as of
Date
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yyyymmdd yyyymmdd yyyymmdd yyyymmdd
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
** WA $ $ WA WA $ $
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
-------------------------------------------
P72 or P83 (2)
-------------------------------------------
Net Change
-------------------------------------------
-------------------------------------------
Preceding & Basis
-------------------------------------------
(1) % % (1)
DSCR Occ Total DSCR
Revenue
-------------------------------------------
<S> <C> <C> <C>
-------------------------------------------
-------------------------------------------
-------------------------------------------
WA WA $ WA
-------------------------------------------
</TABLE>
2
<PAGE> 382
EXHIBIT E-4
FORM OF DELINQUENT LOAN STATUS REPORT
[See Attached Schedule]
<PAGE> 383
CMSA Investor Reporting Package
DELINQUENT LOAN STATUS REPORT
as of ______________
(Loan Level Report)
Operating Information Reflected As NOI______ or NCF________
<TABLE>
<CAPTION>
S62 or
S4 S55 S61 S57 S58 S63 L8 L7 L37 L39 L38
(a) (b) (c) (d)
Ending Other
Loan Paid Schedule Total P&I Expense Total T & I
Prospectus Property Property Sq Ft or Thru Loan Advances Advance Advances
ID Name Type City State Units Date Balance Outstanding Outstanding Outstanding
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS
DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURRENT AND AT SPECIAL SERVICER
</TABLE>
<TABLE>
<CAPTION>
L54 or L56 or
L68/L92 L70/L93
L25 L10 L11 L58 or L73 or L96 or L97 L74 L75
(e)=a+b+c+d
(f) (.90*f) - e
Loss
Appraisal using
Current Current LTM LTM BPO or 90%
Total Monthly Interest Maturity NOI/NCF LTM DSCR Valuation Internal Appr. or
Exposure P&I Rate Date Date NOI/NCF (NOI/NCF) Date Value** BPO (f)
-----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
L99 L77 L79 L76
Date Asset
Total Expected to
Appraisal be Resolved
Reduction Transfer or Workout
Realized Date Foreclosed Strategy
-------------------------------------------------
<S> <C> <C> <C>
</TABLE>
FCL = Foreclosure
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or
Trailing 12 months, if available.
* Workout Strategy should match the CMSA Loan Periodic Update File using
abbreviated words in place of a code number such as (FCL - In Foreclosure,
MOD - Modification, DPO - Discount Payoff, NS - Note Sale, BK - Bankruptcy,
PP - Payment Plan, TBD - To be determined etc.) It is possible to combine
the status codes if the loan is going in more than one direction (i.e.
FCL/Mod, BK/Mod, BK/FCL/DPO).
** BPO - Broker opinion
2
<PAGE> 384
EXHIBIT E-5
FORM OF HISTORICAL LOAN MODIFICATION REPORT
[See Attached Schedule]
<PAGE> 385
CMSA Investor Reporting Package
HISTORICAL LOAN MODIFICATION REPORT
as of ______________
(Loan Level Report)
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 L49 L48 L7* L7* L50* L50*
---------------------------------------------------------------------------------------------------------------------------------
BALANCE
EXTENSION WHEN # MTHS
MOD/ PER EFFECTIVE SENT TO BALANCE AT THE FOR
PROSPECTUS EXTENSION DOCS OR DATE OF SPECIAL EFFECTIVE DATE OLD RATE NEW
ID CITY STATE FLAG SERVICER MODIFICATION SERVICER OF MODIFICATION RATE CHANGE RATE
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
---------------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line should not change in the future.
Only new modifications should be added.
TOTAL FOR ALL
LOANS:
---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------
L25* L25* L11* L11* L47
-------------------------------------------------------------------------------------------
(2) EST.
TOTAL # FUTURE
MTHS (1) INTEREST LOSS
FOR REALIZED TO TRUST $
OLD NEW OLD NEW CHANGE LOSS TO (RATE
P&I P&I MATURITY MATURITY OF MOD TRUST $ REDUCTION) COMMENT
-------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
-------------------------------------------------------------------------------------------
Information is as of modification. Each line should not change in the future.
Only new modifications should be added.
TOTAL FOR ALL
LOANS:
-------------------------------------------------------------------------------------------
</TABLE>
* The information in these columns is from a particular point in time and
should not change on this report once assigned.
Future modifications done on the same loan are additions to the report.
(1) Actual principal loss taken by bonds
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
2
<PAGE> 386
EXHIBIT E-6
FORM OF HISTORICAL LIQUIDATION REPORT
[See Attached Schedule]
<PAGE> 387
CMSA Investor Reporting Package
HISTORICAL LIQUIDATION REPORT
as of ______________
(Loan Level Report)
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 L75 L29 L45 L7
(c) = b/a (a) (b) (d) (e)
----------------------------------------------------------------------------------------------------------------------------------
LATEST
% APPRAISAL
RECEIVED OR EFFECTIVE NET AMOUNT ENDING
PROSPECTUS PROPERTY PROPERTY FROM BROKERS DATE OF SALES RECEIVED SCHEDULED
LOAN ID NAME TYPE CITY STATE LIQUIDATION OPINION LIQUIDATION PRICE FROM SALE BALANCE
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------
L37 L39+L38 L47
(i)=d-
(f) (g) (h) (f+g+h) (k) (m) (n)=k+m (o)=n/e
---------------------------------------------------------------------------------------------------------------------------
TOTAL T & I DATE OF
AND OTHER DATE MINOR TOTAL LOSS %
TOTAL P&I EXPENSES SERVICING LOSS MINOR ADJ LOSS OF
ADVANCE ADVANCE FEES NET REALIZED PASSED ADJ TO PASSED WITH SCHEDULED
OUTSTANDING OUTSTANDING EXPENSE PROCEEDS LOSS THRU TRUST THRU ADJUSTMENT BALANCE
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
</TABLE>
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees
charged by the Special Servicer.
<PAGE> 388
EXHIBIT E-7
FORM OF NOI ADJUSTMENT WORKSHEET
[See Attached Schedule]
<PAGE> 389
COMMERCIAL NOI ADJUSTMENT WORKSHEET (includes Retail/Office/Industrial/
Warehouse/Mixed Use/Self Storage) as of MM/DD/YY
<TABLE>
<S> <C> <C> <C>
PROPERTY OVERVIEW
-----------
PROSPECTUS ID
-----------
---------- ------------
Current Scheduled Loan Current Allocated Loan Amount %
Balance/Paid to Date
----------- ---------- ------------
Property Name
----------- ---------- ------------
Property Type
----------- ----------
Property Address, City, State
----------- ---------- ------------
Net Rentable Use second box to specify sqft.,units...
SF/Units/Pads,Beds
----------- ----------
Year Built/Year Renovated
----------- ----------
Cap Ex Reserve (annually)/per Unit.etc.(1) specify annual/per unit
-----------
-----------
Year of Operations
-----------
Occupancy Rate (physical)
-----------
Occupancy Date
-----------
Average Rental Rate
-----------
</TABLE>
(1) Total $ amount of Capital Reserves
required annually by loan documents, excl.
Leasing Commission and TI's
<TABLE>
<CAPTION>
INCOME: YYYY Notes
Borrower Adjustment Normalized
Statement Classification Actual
<S> <C> <C> <C>
----------- ---------- ------------
Gross Potential Rent (2)
----------- ---------- ------------
Less: Vacancy Loss
----------- ---------- ------------
OR
----------- ---------- ------------
Base Rent (2)
----------- ---------- ------------
Expense Reimbursement
----------- ---------- ------------
Percentage Rent
----------- ---------- ------------
Parking Income
----------- ---------- ------------
Other Income
----------- ---------- ------------
EFFECTIVE GROSS INCOME
----------- ---------- ------------
</TABLE>
(2) Use either Gross Potential (with Vacancy
Loss) or Base Rents; use negative $amt for
Vacancy Loss
<TABLE>
<S> <C> <C> <C>
OPERATING EXPENSES:
----------- ---------- ------------
Real Estate Taxes
----------- ---------- ------------
Property Insurance
----------- ---------- ------------
Utilities
----------- ---------- ------------
Repairs and Maintenance
----------- ---------- ------------
Janitorial
----------- ---------- ------------
Management Fees
----------- ---------- ------------
Payroll & Benefits Expense
----------- ---------- ------------
Advertising & Marketing
----------- ---------- ------------
Professional Fees
----------- ---------- ------------
General and Administrative
----------- ---------- ------------
Other Expenses For self-storage include franchise
fees
----------- ---------- ------------
Ground Rent
----------- ---------- ------------
TOTAL OPERATING EXPENSES
----------- ------------
OPERATING EXPENSE RATIO
----------- ------------
NET OPERATING INCOME
----------- ------------
Leasing Commissions (3)
----------- ---------- ------------
Tenant Improvements (3)
----------- ---------- ------------
Capital Expenditures
----------- ---------- ------------
Extraordinary Capital
Expenditures
----------- ---------- ------------
TOTAL CAPITAL ITEMS
----------- ---------- ------------
</TABLE>
(3) Actual current yr, but normalize for
annual if possible via contractual, U/W or
other data
<TABLE>
<S> <C> <C>
NET CASH FLOW
----------- ------------
</TABLE>
<PAGE> 390
<TABLE>
<S> <C> <C>
----------- ------------
DEBT SERVICE (PER SERVICER)
----------- ------------
NET CASH FLOW AFTER DEBT SERVICE
----------- ------------
DSCR: (NOI/DEBT SERVICE)
----------- ------------
DSCR: (NCF/DEBT SERVICE)
----------- ------------
SOURCE OF FINANCIAL DATA:
------------------------------------------
</TABLE>
(i.e.. operating statements, financial
statements, tax return, other)
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
<PAGE> 391
MULTIFAMILY NOI ADJUSTMENT WORKSHEET (includes Mobile Home Parks)
as of MM/DD/YY
<TABLE>
<S> <C> <C> <C>
PROPERTY OVERVIEW
Prospectus ID
-------------
Current Scheduled Loan Current Allocated Loan Amount %
Balance/Paid to Date
------------- ----------- -------------
Property Name
---------------------------------------------
Property Type
---------------------------- -------------
Property Address, City, State
------------- ------------ -------------
Net Rentable Use second box to specify sqft.,units
SF/Units/Pads,Beds
------------- -----------
Year Built/Year Renovated
------------- -----------
Cap Ex Reserve (annually)/per specify annual/per unit
Unit.etc. (1)
----------------------------
Year of Operations
-------------
Occupancy Rate (physical)
-------------
Occupancy Date
-------------
Average Rental Rate
-------------
</TABLE>
(1) Total $ amount of Capital Reserves
required annually by loan documents.
<TABLE>
<CAPTION>
INCOME: YYYY Notes
------------- ----------- -------------
Borrower Adjustment Normalized
Statement Classification Actual
------------- ----------- -------------
<S> <C> <C> <C>
Gross Potential Rent (2) Include Pad/RV rent
------------- ----------- -------------
Less: Vacancy Loss
------------- ----------- -------------
OR
Base Rent (2)
------------- ----------- -------------
Laundry/Vending Income
------------- ----------- -------------
Parking Income
------------- ----------- -------------
Other Income Include forfeited
security/late fees/pet
------------- ----------- -------------
Effective Gross Income
------------- ----------- -------------
</TABLE>
(2) Use either Gross Potential (with
Vacancy Loss) or Base Rents; use negative
$ amt for Vacancy Loss
<TABLE>
<S> <C> <C> <C>
OPERATING EXPENSES:
Real Estate Taxes
------------- ----------- -------------
Property Insurance
------------- ----------- -------------
Utilities
------------- ----------- -------------
Repairs and Maintenance
------------- ----------- -------------
Management Fees
------------- ----------- -------------
Payroll & Benefits Expense
------------- ----------- -------------
Advertising & Marketing
------------- ----------- -------------
Professional Fees
------------- ----------- -------------
General and Administrative
------------- ----------- -------------
Other Expenses
------------- ----------- -------------
Ground Rent
------------- ----------- -------------
Total Operating Expenses
------------- ----------- -------------
Operating Expense Ratio
------------- -------------
Net Operating Income
------------- -------------
Capital Expenditures
------------- ----------- -------------
Extraordinary Capital
Expenditures
------------- ----------- -------------
Total Capital Items
------------- -------------
Net Cash Flow
------------- -------------
Debt Service (per Servicer)
------------- -------------
</TABLE>
<PAGE> 392
<TABLE>
<S> <C> <C>
Net Cash Flow after debt service
------------- -------------
DSCR: (NOI/Debt Service)
------------- -------------
DSCR: (NCF/Debt Service)
------------- -------------
Source of Financial Data: ---------------------------------------------
</TABLE>
(i.e.. operating statements, financial
statements, tax return, other)
Notes and Assumptions: This report should be completed annually for
"Normalization" of Borrower's numbers.
Methodology used is per MBA/CMSA Standard Methodology unless otherwise noted.
The "Normalized" column and corresponding comments should roll through to
the Operating Statement Analysis Report
Income: Comments
Expense: Comments
Capital Items: Comments
<PAGE> 393
LODGING NOI ADJUSTMENT WORKSHEET
as of MM/DD/YY
<TABLE>
<S> <C> <C> <C>
PROPERTY OVERVIEW
Prospectus ID
-----------
Current Scheduled Loan Current Allocated Loan
Balance/Paid to Date Amount %
----------- --------- ------------
Property Name
-----------------------------------------
Property Type
----------- --------- ------------
Property Address, City, State
----------- --------- ------------
Net Rentable Use second box to specify sqft.,units
SF/Units/Pads,Beds
----------- ---------
Year Built/Year Renovated
----------- ---------
Cap Ex Reserve (annually)/ specify annual/per unit
per Unit.etc. (1) ----------- ---------
Year of Operations
----------- ---------
Occupancy Rate (physical)
-----------
Occupancy Date
-----------
Average Daily Rate
-----------
Rev per Av. Room
-----------
</TABLE>
(1) Total $ amount of Capital Reserves
required annually by loan documents.
<TABLE>
<CAPTION>
INCOME: YYYY Notes
----------- --------- ------------
Borrower Adjustment Normalized
Statement Classification Actual
----------- --------- ------------
<S> <C> <C> <C>
Room Revenue
----------- --------- ------------
Food & Beverage Revenues
----------- --------- ------------
Telephone Revenue
----------- --------- ------------
Other Departmental Revenue
----------- --------- ------------
Other Income
----------- --------- ------------
DEPARTMENTAL REVENUE: (2)
----------- --------- ------------
</TABLE>
(2) Report Departmental Revenue as EGI for
CMSA Loan Periodic and Property files
<TABLE>
<S> <C> <C> <C>
OPERATING EXPENSES:
Departmental
Room
----------- --------- ------------
Food & Beverage
----------- --------- ------------
Telephone Expenses
----------- --------- ------------
Other Dept. Expenses
----------- --------- ------------
DEPARTMENTAL EXPENSES:
----------- --------- ------------
DEPARTMENTAL INCOME:
----------- --------- ------------
General/Unallocated
Real Estate Taxes
----------- --------- ------------
Property Insurance
----------- --------- ------------
Utilities
----------- --------- ------------
Repairs and Maintenance
----------- --------- ------------
Franchise Fee
----------- --------- ------------
Management Fees
----------- --------- ------------
Payroll & Benefits
----------- --------- ------------
Advertising & Marketing
----------- --------- ------------
Professional Fees
----------- --------- ------------
General and Administrative
----------- --------- ------------
Other Expenses
----------- --------- ------------
Ground Rent
----------- --------- ------------
TOTAL GENERAL/Unallocated
----------- ------------
(For CMSA files, Total Expenses = Dept. Exp +
General Exp.)
Operating Expense Ratio
----------- ------------
(=Departmental Revenue/(Dept. Exp. + General Exp.))
Net Operating Income
----------- ------------
</TABLE>
<PAGE> 394
<TABLE>
<S> <C> <C> <C>
Capital Expenditures
----------- --------- ------------
Extraordinary Capital
Expenditures
----------- --------- ------------
Total Capital Items
----------- ------------
Net Cash Flow
----------- ------------
Debt Service (per Servicer)
----------- ------------
Net Cash Flow after debt service
----------- ------------
DSCR: (NOI/Debt Service)
----------- ------------
DSCR: (NCF/Debt Service)
----------- ------------
Source of Financial Data: -----------------------------------------
</TABLE>
(i.e.. operating statements, financial
statements, tax return, other)
Notes and Assumptions: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
Income: Comments
Expense: Comments
Capital Items: Comments
<PAGE> 395
HEALTHCARE NOI ADJUSTMENT WORKSHEET
as of MM/DD/YY
<TABLE>
<S> <C> <C> <C>
PROPERTY OVERVIEW
Prospectus ID
-----------
---------- -----------
Current Scheduled Loan Balance/Paid Current Allocated Loan
to Date Amount %
Property Name
---------------------------------------
Property Type
-------------------------
Property Address, City, State ----------- ----------
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
----------
Year Built/Year Renovated
----------- ----------
Cap Ex Reserve (annually)/per Unit.etc. (1)-------- specify annual/per unit...
Year of Operations
-----------
Occupancy Rate (physical)
-----------
Occupancy Date
-----------
Average Rental Rate
-----------
</TABLE>
(1) Total $ amount of Capital Reserves required
annually by loan documents.
<TABLE>
<CAPTION>
INCOME: YYYY Notes
----------- ---------- -----------
<S> <C> <C> <C>
Borrower Adjustment Normalized
Statement Classification Actual
----------- ---------- -----------
Gross Potential Rent (2)
----------- ---------- -----------
Less: Vacancy Loss
----------- ---------- -----------
OR
----------- ---------- -----------
Private Pay (2)
----------- ---------- -----------
Medicare/Medicaid
----------- ---------- -----------
Nursing/Medical Income
----------- ---------- -----------
Meals Income
----------- ---------- -----------
Other Income
----------- ---------- -----------
Effective Gross Income
----------- ---------- -----------
</TABLE>
(2) Use either Gross Potential (with Vacancy
Loss) or Private Pay/Medicare/Medicaid; use
negative $amt for Vacancy Loss
<TABLE>
<S> <C> <C> <C>
OPERATING EXPENSES:
----------- ---------- -----------
Real Estate Taxes
----------- ---------- -----------
Property Insurance
----------- ---------- -----------
Utilities
----------- ---------- -----------
Repairs and Maintenance
----------- ---------- -----------
Management Fees
----------- ---------- -----------
Payroll & Benefits
----------- ---------- -----------
Advertising & Marketing
----------- ---------- -----------
Professional Fees
----------- ---------- -----------
General and Administrative
----------- ---------- -----------
Room expense -
housekeeping
----------- ---------- -----------
Meal expense
----------- ---------- -----------
Other Expenses
----------- ---------- -----------
Ground Rent
----------- ---------- -----------
Total Operating Expenses
----------- -----------
Operating Expense Ratio
----------- -----------
Net Operating Income
----------- -----------
Capital Expenditures
----------- ---------- -----------
Extraordinary Capital
Expenditures
----------- ---------- -----------
Total Capital Items
----------- ---------- -----------
</TABLE>
<PAGE> 396
<TABLE>
<S> <C> <C>
Net Cash Flow
----------- -----------
Debt Service (per Servicer)
----------- -----------
Net Cash Flow after debt
service
----------- -----------
DSCR: (NOI/Debt Service)
----------- -----------
DSCR: (NCF/Debt Service)
----------- -----------
Source of Financial Data: ---------------------------------------
</TABLE>
(i.e.. operating statements, financial
statements, tax return, other)
Notes and Assumptions: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
Income: Comments
Expense: Comments
Capital Items: Comments
<PAGE> 397
EXHIBIT E-8
FORM OF OPERATING STATEMENT ANALYSIS REPORT
[See Attached Schedule]
<PAGE> 398
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT (includes Retail/Office/
Industrial/Warehouse/Mixed Use/Self Storage)
as of MM/DD/YY
<TABLE>
<S> <C>
PROPERTY OVERVIEW
Prospectus ID
Current Scheduled Loan Balance/Paid Current Allocated Loan Amount %
to Date
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads, Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
</TABLE>
<TABLE>
<CAPTION>
Year of Operations Underwriting MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
<S> <C> <C> <C> <C> <C>
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
</TABLE>
(1) Total $ amount of Capital Reserves required annually by loan documents,
excl. Leasing Commission and TI's
INCOME:
<TABLE>
<CAPTION>
Number of Mos. Covered (prcdng yr to (prcdng yr to 2nd
prcdng) base)
Period Ended Underwriting 3rd 2nd Preceding TTM/YTD YYYY-U/W YYYY-YYYY
Preceding Preceding Yr. (2)
Statement Classification(yr) Base Line (fm NOI as of Variance Variance
Adj Sheet) / /XX
<S> <C> <C> <C> <C> <C> <C> <C>
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Base Rent (3)
Expense Reimbursement
Percentage Rent
Parking Income
Other Income
</TABLE>
* Effective Gross Income
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative
$amt for Vacancy Loss
<TABLE>
<CAPTION>
Number of Mos. Covered (prcdng yr to (prcdng yr to 2nd
prcdng) base)
Period Ended Underwriting 3rd 2nd Preceding TTM/YTD YYYY-U/W YYYY-YYYY
Preceding Preceding Yr. (2)
Statement Classification(yr) Base Line (fm NOI as of Variance Variance
Adj Sheet) / /XX
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Janitorial
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*Total Operating Expenses
Operating Expense Ratio
*Net Operating Income
Leasing Commissions
Tenant Improvements
Capital Expenditures
Extraordinary Capital
Expenditures
Total Capital Items
*Net Cash Flow
Debt Service (per Servicer)
*Net Cash Flow after Debt Service
*DSCR: (NOI/Debt Service)
*DSCR: (NCF/Debt Service)
</TABLE>
Source of Financial Data:
(ie. operating statements, financial
statements, tax return, other)
Notes and Assumptions: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year
variances (either higher or lower) must be explained and noted for the
following: >10% DSCR change, >15% EGI/Total Operating Expenses or Total Capital
Items.
Income: Comments
Expense: Comments
<PAGE> 399
Capital Items: Comments
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
2
<PAGE> 400
MULTIFAMILY OPERATING STATEMENT ANALYSIS REPORT (includes Mobile Home Parks)
as of MM/DD/YY
<TABLE>
<S> <C>
PROPERTY OVERVIEW
Prospectus ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sq ft.,units . . .
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc.(1) specify annual/per unit . . .
</TABLE>
<TABLE>
<CAPTION>
Year of Operations Underwriting MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
<S> <C> <C> <C> <C> <C>
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
</TABLE>
(1) Total $ amount of Capital Reserves required
annually by loan documents.
<TABLE>
INCOME:
Number of Mos. Covered (prcdng yr to (prcdng yr to
base) 2nd prcdng)
Period Ended Underwriting 3rd 2nd Preceding TTM/YTD YYYY-U/W YYYY-YYYY
Preceding Preceding Yr. (2)
Statement Base Line (fm NOI as of Variance Variance
Classification(yr) Adj Sheet) / /
<S> <C> <C> <C> <C> <C> <C> <C>
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Base Rent(3)
Laundry/Vending Income
Parking Income
Other Income
</TABLE>
*Effective Gross Income
(2) Servicer will not be expected to
"Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy
Loss) or Base Rents; use negative $amt for
Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*Total Operating Expenses
Operating Expense Ratio
*Net Operating Income
Capital Expenditures
Extraordinary Capital Expenditures
Total Capital Items
*Net Cash Flow
Debt Service (per Servicer)
*Net Cash Flow after Debt Service
*DSCR: (NOI/Debt Service)
*DSCR: (NCF/Debt Service)
Source of Financial Data:
(ie. operating statements, financial statements,
tax return, other)
Notes and Assumptions: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR change, >15% EGI/Total Operating Expenses or Total Capital Items.
Income: Comments
Expense: Comments
Capital Items: Comments
3
<PAGE> 401
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
4
<PAGE> 402
LODGING OPERATING STATEMENT ANALYSIS REPORT
as of MM/DD/YY
<TABLE>
<S> <C>
PROPERTY OVERVIEW
Prospectus ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units . . .
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit . . .
</TABLE>
<TABLE>
<CAPTION>
Year of Operations Underwriting MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
<S> <C> <C> <C> <C> <C>
Occupancy Rate (physical)
Occupancy Date
Average Daily Rate
Rev per Av. Room
</TABLE>
(1) Total $ amount of Capital Reserves
required annually by loan documents
<TABLE>
INCOME:
Number of Mos. Covered
(prcdng (prcdng yr
yr to to 2nd
base) prcdng)
Period Ended Underwriting 3rd 2nd Preceding TTM/YTD YYYY-U/W YYYY-YYYY
Preceding Preceding Yr. (2)
Statement Classification (yr) Base Line (fm NOI as of / / Variance Variance
Adj Sheet)
<S> <C> <C> <C> <C> <C> <C> <C>
Room Revenue
Food & Beverage Revenues
Telephone Revenue
Other Departmental Revenue
Other Income
*DEPARTMENTAL REVENUE
</TABLE>
(2) Servicer will not be expected to
"Normalize" these YTD/TTM numbers.
OPERATING EXPENSES:
Departmental
Room
Food & Beverage
Telephone Expenses
Other Dept. Expenses
DEPARTMENTAL EXPENSES:
DEPARTMENTAL INCOME:
General/Unallocated
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Franchise Fee
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
TOTAL GENERAL/Unallocated
(For CMSA files, Total Expenses = Dept. Exp + General Exp.)
Operating Expense Ratio
(=Departmental Revenue/(Dept. Exp. + General Exp.))
*Net Operating Income
Capital Expenditures
Extraordinary Capital Expenditures
Total Capital Items
*Net Cash Flow
Debt Service (per Servicer)
*Net Cash Flow after Debt Service
*DSCR: (NOI/Debt Service)
*DSCR: (NCF/Debt Service)
Source of Financial Data:
(ie. operating statements, financial
statements, tax return, other)
Notes and Assumptions: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR change, >15% Dept Revenue, Dept Expenses, General Expenses or Total Capital
Items.
Income: Comments
Expense: Comments
Capital Items: Comments
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for
5
<PAGE> 403
reporting to the CMSA Loan Periodic Update file.
6
<PAGE> 404
HEALTHCARE OPERATING STATEMENT ANALYSIS REPORT
as of MM/DD/YY
<TABLE>
<S> <C>
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit . . .
</TABLE>
<TABLE>
<CAPTION>
Year of Operations Underwriting MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
<S> <C> <C> <C> <C> <C>
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
</TABLE>
(1) Total $ amount of Capital Reserves required
annually by loan documents
<TABLE>
INCOME:
Number of Mos. Covered (prcdng yr to (prcdng yr to
base) 2nd prcdng)
Period Ended Underwriting 3rd 2nd Preceding TTM/YTD YYYY-U/W YYYY-YYYY
Preceding Preceding Yr. (2)
Statement Classification (yr) Base Line (fm NOI as of Variance Variance
Adj Sheet) / /
<S> <C> <C> <C> <C> <C> <C> <C>
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Private Pay (3)
Medicare/Medicaid
Nursing/Medical Income
Meals Income
Other Income
* EFFECTIVE GROSS INCOME
</TABLE>
(2) Servicer will not be expected to
"Normalize" these TTM/YTD numbers.
(3) Use either Gross Potential (with Vacancy
Loss) or Private Pay/Medicare/Medicaid; use
negative $ amt for Vacancy Loss.
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Room expense - housekeeping
Meal expense
Other Expenses
Ground Rent
* TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
* NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
* NET CASH FLOW
DEBT SERVICE (PER SERVICER)
* NET CASH FLOW AFTER DEBT SERVICE
* DSCR: (NOI/DEBT SERVICE)
* DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements,
tax return, other)
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) or reporting to the CMSA Loan Periodic
Update file.
7
<PAGE> 405
EXHIBIT E-9
FORM OF REO STATUS REPORT
[See Attached Schedule]
<PAGE> 406
CMSA Investor Reporting Package
REO STATUS REPORT
as of ____________
(Property Level Report)
Operating Information Reflected As NOI______ or NCF________
<TABLE>
<CAPTION>
P16
or
P4 P7 P13 P9 P10 P17 L8 P21 L37 L39 L38
(a) (b) (c) (d)
Allocated
Ending Total Other Total T
Sq Ft Paid Scheduled P&I Expense & I
Property Property Property or Thru Loan Advances Advance Advance
ID Name Type City State Units Date Amount Outstanding Outstanding Outstanding
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
P58 or
P53 or P72/P79
L25 L11 P74 or P83 P24 P25 L99
(e)=a+b+c+d (f) (g) (h)=(.90*g)-e
Appraisal Loss
BPO or Appraisal using 90%
Internal BPO Appr. Total
Current LTM LTM Value or or Appraisal
Total Monthly Maturity NOI/NCF DSCR Valuation Source Internal BPO Reduction
Exposure P&I Date Date (NOI/NCF) Date (1) Value (f) Realized
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
L77 P28 P26
Date
Asset
REO Expected
Transfer Acquistion to be
Date Date Resolved Comments
<S> <C> <C> <C>
</TABLE>
REO's data reflected at the property level for relationships with more than one
(1) property should use the Allocated Ending Scheduled Loan Amount, and prorate
all advances and expenses or other loan level data as appropriate.
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value.
2
<PAGE> 407
EXHIBIT E-10
FORM OF SERVICER WATCH LIST
[See Attached Schedule]
<PAGE> 408
CMSA Investor Reporting Package
Servicer Watch List
as of __________
(Loan Level Report)
Operating Information Reflected As NOI______ or
NCF________
<TABLE>
<CAPTION>
S4 S55 S61 S57 S58 L7
Ending
Prospectus Scheduled
Loan ID Property Name Property Type City State Loan Balance
<S> <C> <C> <C> <C> <C>
List all loans on watch list in descending balance order.
Comment section should include reason and other pertinent information.
Should not include loans that are specially serviced.
Watch list selection criteria should be footnoted on the report. The criteria
may be dictated as per the PSA or the servicer's internal policy.
Total: $
</TABLE>
<TABLE>
<CAPTION>
L8 L11 L56/L93 L70/L97
Preceding
Paid Maturity Fiscal Yr DSCR Most Recent
Thru Date Date NOI/NCF DSCR NOI/NCF Comment / Action to be taken
<S> <C> <C> <C> <C>
</TABLE>
2
<PAGE> 409
EXHIBIT E-11
FORM OF BOND FILE
CMSA
BOND LEVEL FILE LAYOUT
BOND LEVEL ONLY - REFLECTS DISTRIBUTION
STATEMENTS
VERSION 1.0 (12/31/98)
<TABLE>
<CAPTION>
------------------------------------------------ --------------------------- ---------------------------------------------------
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------------ --------------------------- ---------------------------------------------------
Character Set ASCII
Field Delineation Comma
------------------------------------------------ --------------------------- ---------------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
(Consistent With CSSA Periodic Loan File)
Distribution Date 2 AN YYYYMMDD Date Payments Made To Certificateholders
Record Date 3 AN YYYYMMDD Date Class Must Be Held As Of To Be
Considered Holder Of Record
Class Name/Class Id 4 AN A-1 Unique Class Identification Mnemonic
Cusip 5 AN 999999AA1 Cusip # (Null If No Cusip Exists)
Original Balance 6 Numeric 1000000.00 The Class Balance At Inception Of The Issue
Notional Flag 7 AN Y "Y" For Notional
Beginning Balance 8 Numeric 100000.00 The Outstanding Principal Balance Of The
Class At The Beginning Of The Current
Period
Scheduled Principal 9 Numeric 1000.00 The Scheduled Principal Paid
Unscheduled Principal 10 Numeric 1000.00 The Unscheduled Principal Paid
Total Principal Distribution 11 Numeric 1000.00 Total Principal Payment Made
Deferred Interest 12 Numeric 1000.00 Any Interest Added To The Class Balance
Including Negative Amortization
Realized Loss (Gain) 13 Numeric 1000.00 The Total Realized Loss of (Gain) Allocated
Cumulative Realized Losses 14 Numeric 100000.00 Realized Losses Allocated
Cumulative-To-Date.
Ending Balance 15 Numeric 1000.00 Outstanding Principal Balance Of The Class
At The End Of The Current Period
Current Index Rate 16 Numeric 0.055 The Current Index Rate Applicable To The
Calculation Of Current Period Remittance
Interest Rate
Current Remittance Rate / Pass-Through Rate 17 Numeric 0.075 Annualized Interest Rate Applicable To The
Calculation Of Current Period Remittance
Interest
Accrual Method 18 Numeric 1 1=30/360, 2=Actual/365,
3=Actual/360,4=Actual/Actual, 5=Actual/366
Current Accrual Days 19 Numeric 30 The Number Of Accrual Days Applicable To
The Calculation Of Current Period
Remittance Interest
Interest Accrued 20 Numeric 1000.00 The Amount Of Accrued Interest
Prepayment Penalty/Premium Allocation 21 Numeric 1000.00 Total Amount Of Prepayment Penalties
Allocated
Yield Maintenance Allocation 22 Numeric 1000.00 Total Amount Of Yield Maintenance
Penalties Allocated
Other Interest Distribution 23 Numeric 1000.00 Other Specific Additions To Interest
Prepayment Interest Shortfall 24 Numeric 1000.00 Total Interest Adjustments For PPIS
Appraisal Reduction Allocation 25 Numeric 1000.00 Total Current Appraisal Reduction Allocated
Other Interest Shortfall 26 Numeric 1000.00 Total Interest Adjustments Other Than PPIS
Total Interest Distribution 27 Numeric 1000.00 The Total Interest Payment Made
Cumulative Appraisal Reduction 28 Numeric 1000.00 Total Cumulative Appraisal Reduction
Allocated
Cumulative Prepayment Penalty/Premium Allocation 29 Numeric 1000.00 Total Amount Of Prepayment Penalties
Allocated To Date
Cumulative Yield Maintenance Allocation 30 Numeric 1000.00 Total Amount Of Yield Maintenance
Penalties Allocated To Date
Beginning Unpaid Interest Balance 31 Numeric 1000.00 Outstanding Interest Shortfall At The
Beginning Of The Current Period
Ending Unpaid Interest Balance 32 Numeric 1000.00 Outstanding Interest Shortfall At The End
Of The Current Period
DCR - Original Rating 33 AN AAA The Original Rating Of The Class By Duff &
Phelps
DCR - Most Recent Rating 34 AN AAA The Most Recent Rating Of The Class By
Duff & Phelps
DCR - Date Transmitted from Rating Agency 35 AN YYYYMMDD The Date On Which The Most Recent Rating
Was Provided To The Trustee By Duff &
Phelps
Fitch - Original Rating 36 AN AAA The Original Rating Of The Class By Fitch
Fitch - Most Recent Rating 37 AN AAA The Most Recent Rating Of The Class By
Fitch
Fitch - Date Transmitted from Rating Agency 38 AN YYYYMMDD The Date On Which The Most Recent Rating
Was Provided To The Trustee By Fitch
Moody's - Original Rating 39 AN AAA The Original Rating Of The Class By Moody's
Moody's - Most Recent Rating 40 AN AAA The Most Recent Rating Of The Class By
Moody's
Moody's - Date Transmitted from Rating Agency 41 AN YYYYMMDD The Date On Which The Most Recent Rating
Was Provided To The Trustee By Moody's
Standard & Poor's - Original Rating 42 AN AAA The Original Rating Of The Class By
Standard & Poor's
Standard & Poor's - Most Recent Rating 43 AN AAA The Most Recent Rating Of The Class By
Standard & Poor's
Standard & Poor's - Date Transmitted from Rating 44 AN YYYYMMDD The Date On Which The Most Recent Rating
Agency Was Provided To The Trustee By Standard &
Poor's
------------------------------------------------ --------------------------- ---------------------------------------------------
</TABLE>
040298 Date the interest accrual period began
050198 Date the interest accrual period ended
043098 Date security had to held on to be
due this payment
<PAGE> 410
EXHIBIT E-12
FORM OF COLLATERAL SUMMARY FILE
CMSA
COLLATERAL SUMMARY FILE LAYOUT
COLLATERAL LEVEL SUMMARY - SUMMARIZES
CSSA 100.1 PERIODIC FILE
VERSION 1.0 (12/31/98)
<TABLE>
<CAPTION>
PERIODIC
FIELD FORMAT
FIELD NAME REFERENCE # # TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C> <C> <C>
Character Set ASCII
Field Delineation Comma
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX97001 Unique Identification Number Assigned To
Each Loan Group Within An Issue
Distribution Date 3 AN YYYYMMDD Date Payments Made To
Certificateholders
Original Loan Count 4 Numeric 100 Number of loans at time of securitization
Ending current period loan count 5 Numeric 99 Number of loans at end of current period
Ending current period 7 6 Numeric 1000000.00 Aggregate scheduled balance of loans at
collateral balance end of current period
1 month Delinquent - number 7 Numeric 1 Number of loans one month delinquent
1 month Delinquent - scheduled 8 Numeric 1000.00 Scheduled principal balance of loans one
balance month delinquent
2 months Delinquent - number 9 Numeric 1 Number of loans two months delinquent
2 months Delinquent - scheduled 10 Numeric 1000.00 Scheduled principal balance of loans two
balance months delinquent
3 months Delinquent - number 11 Numeric 1 Number of loans three months delinquent
3 months Delinquent - scheduled 12 Numeric 1000.00 Scheduled principal balance of loans
balance three months delinquent
Foreclosure - number 13 Numeric 1 Number of loans in foreclosure -
overrides loans in delinquency
Foreclosure - scheduled balance 14 Numeric 1000.00 Scheduled principal balance of loans in
foreclosure - overrides loans in
delinquency
REO - number 15 Numeric 1 Number of REOs - overrides loans in
delinquency or foreclosure
REO - scheduled balance 16 Numeric 1000.00 Book value of REOs - overrides loans in
delinquency or foreclosure
Specially serviced - number 17 Numeric 1 Number of specially serviced loans -
includes loans in delinquency,
foreclosure, REO
Specially serviced - scheduled 18 Numeric 1000.00 Scheduled principal of Specially
balance Serviced loans
In Bankruptcy - number 19 Numeric 1 Number of loans in bankruptcy - included
in delinquency aging category
In Bankruptcy - scheduled 20 Numeric 1000.00 Scheduled principal balance of loans in
balance bankruptcy - included in delinquency
aging category
Prepaid loans - number 21 Numeric 1 Number of prepayments in full for the
current period
Prepaid loans - principal 22 Numeric 1000.00 Principal balance of loans prepaid in
full for the current period.
Total unscheduled principal 27+28 23 Numeric 1000.00 Includes prepayments in full, partial
pre-payments, curtailments in the
current period
Total Penalty for the period 24 Numeric 1000.00 The aggregate prepayment or yield
maintenance penalties on the loans for
the period.
Current realized losses (gains) 47 25 Numeric 1000.00 Realized losses (gain) in the current
period
Cumulative realized losses 26 Numeric 1000.00 Cumulative realized losses
Appraisal Reduction Amount 33 27 Numeric 1000.00 Total Current Appraisal Reduction
Allocated
Cumulative Appraisal Reduction 35 28 Numeric 1000.00 Total Cumulative Appraisal Reduction
Allocated
Total P&I Advance Outstanding 37 29 Numeric 1000.00 Outstanding P&I Advances At The End Of
The Current Period
Total T&I Advance Outstanding 38 30 Numeric 1000.00 Outstanding Taxes & Insurance Advances
At The End Of The Current Period
Other Expense Advance 39 31 Numeric 1000.00 Other Outstanding Advances At The End Of
Outstanding The Current Period
Reserve Balances 32 Numeric 1000.00 Balance of cash or equivalent reserve
accounts pledged as credit enhancement
LOC Balances 33 Numeric 1000.00 Balance of letter of credit reserve
accounts pledged as credit enhancement
Amortization WAM 34 Numeric 333 Weighted average maturity based on
amortization term
Maturity WAM 35 Numeric 333 Weighted average maturity based on term
to maturity
Calculated WAC 36 Numeric 0.105 Weighted average coupon used to
calculate gross interest
</TABLE>
040298 Date the
interest
accrual
period
began
050198 Date the
interest
accrual
period
ended
043098 Date
security
had to
held on to
be due
this
payment
<PAGE> 411
EXHIBIT E-13
FORM OF FINANCIAL FILE
[See Attached Schedule]
<PAGE> 412
ATTACHMENT A:
CMSA FINANCIAL FILE - CATEGORY CODE MATRIX
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------
PROPERTY TYPE
--------------------------------------------------
CODE/ MULTI- HEALTH
SORT ORDER DESCRIPTION COMMERCIAL FAMILY CARE LODGING
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------
INCOME
010GROSRNT Gross Potential Rent - - -
020VACANCY Less: Vacancy/Collection Loss - - -
030BASERNT Base Rent - -
040EXPREMB Expense Reimbursement -
050PCTRENT Percentage Rent -
060ROOMREV Room Revenue -
070FOODBEV Food & Beverage Revenues -
080PHONE Telephone Revenue -
090OTHDREV Other Departmental Revenue -
100PVTPAY Private Pay -
110MEDCARE Medicare/Medicaid -
120NURSING Nursing/Medical Income -
130MEALS Meals Income -
140LAUNDRY Laundry/Vending Income -
150PARKING Parking Income - -
160OTHERIN Other Income - - - -
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
EXPENSES 270ROOMS Room (Department) -
280FOODBEV Food & Beverage (Departmental) -
290PHONE Telephone Expenses (Departmental) -
300OTHDEPT Other Dept. Expenses -
310RETAXES Real Estate Taxes - - - -
320PROPINS Property Insurance - - - -
330UTILITI Utilities - - - -
340REPAIRS Repairs and Maintenance - - - -
350JANITOR Janitorial -
360FRANCHI Franchise Fee -
370MANAGEM Management Fees - - - -
380PAYROLL Payroll & Benefits - - - -
390MARKETI Advertising & Marketing - - - -
400PROFESS Professional Fees - - - -
410GENERAL General and Administrative - - - -
420ROOMS Room Expense - Housekeeping -
430MEALS Meal expense -
440OTHEREX Other Expenses - - - -
450GROUNDR Ground Rent - - - -
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
RESRV & 490LEASING Leasing Commissions -
CAPEX
500TENANTI Tenant Improvements -
510CAPEX Capital Expenditures - - - -
520EXCAPEX Extraordinary Capital - - - -
Expenditures
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------
DATA TYPES
------------------------------------------------------------------------------
YTD Current Year - Year to Date
AN Annual (prior 12 months' data...fiscal year - audited)
TR Trailing 12 months' data
UB Underwriting Base Line
------------------------------------------------------------------------------
------------------------------------------------------------------------------
STATEMENT TYPES
------------------------------------------------------------------------------
BOR Borrower's Statement (as submitted)
ADJ Adjustments to Borrower's Statement
NOR Normalized Statement (to CMSA format)
------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 413
ATTACHMENT B:
CMSA FINANCIAL FILE SPECIFICATIONS
--------------------------------------------------------------------------------
RECORD LAYOUT
--------------------------------------------------------------------------------
Fields: Trans ID From CMSA Loan Setup File, Field #1
Loan # From CMSA Property File, Field #2
Property ID From CMSA Property File, Field #4, Example: 1001-001
YYYYMM Financial Statement Beginning Date
YYYYMM Financial Statement Ending Date
Data Type See attached values
Stmt Type See attached values
Category Code See attached values
Amount Example : 999999.99 Enter positive values except for
adjustments, contra accounts or other negative numbers.
Key: Trans ID
Loan #
Property ID CMSA Property File, P4
YYYYMM Financial Statement Ending Date
Data Type
Statement Type
Category Code
SAMPLE ASCII PRESENTATION (PREFERRED)
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,010GROSRNT,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,020VACANCY,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,030BASERNT,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,160OTHERIN,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,310RETAXES,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,320PROPINS,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,330UTILITI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,340REPAIRS,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,350JANITOR,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,370MANAGEM,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,380PAYROLL,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,390MARKETI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,410GENERAL,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,440OTHEREX,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,500TENANTI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,510CAPEX,999999.99
SAMPLE SPREADSHEET PRESENTATION
<TABLE>
<CAPTION>
-------- -------- -------- ------ ------ --------- ---- ---------- ---------
TRANS ID LOAN # PROP ID BEGIN ENDING DATA TYPE STMT CATEGORY AMOUNT
YYYYMM YYYYMM TYPE
-------- -------- -------- ------ ------ --------- ---- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 010GROSRNT 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 020VACANCY 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 030BASERNT 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 160OTHERIN 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 310RETAXES 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 320PROPINS 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 330UTILITI 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 340REPAIRS 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 350JANITOR 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 370MANAGEM 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 380PAYROLL 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 390MARKETI 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 410GENERAL 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 440OTHEREX 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 500TENANTI 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 510CAPEX 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 010GROSRNT 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 020VACANCY 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 030BASERNT 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 160OTHERIN 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 310RETAXES 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 320PROPINS 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 330UTILITI 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 340REPAIRS 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 350JANITOR 999999.99
</TABLE>
3
<PAGE> 414
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 370MANAGEM 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 380PAYROLL 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 390MARKETI 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 410GENERAL 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 440OTHEREX 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 500TENANTI 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 510CAPEX 999999.99
-------- -------- -------- ------ ------ --------- ---- ---------- ---------
</TABLE>
4
<PAGE> 415
EXHIBIT E-14
FORM OF PAID AFTER DETERMINATION DATE REPORT
[SEE ATTACHED REPORT]
<PAGE> 416
ORIX REAL ESTATE CAPITAL MARKETS, LLC
SALOMON 2000 C2
FOR THE COLLECTION PERIOD ENDING:
PAID AFTER DETERMINATION DATE REPORT
(FOR LOANS DELINQUENT AS OF DETERMINATION DATE)
<TABLE>
<CAPTION>
UPDATED
-------
PRIMARY SERVICER PROSPECTUS PRIMARY SCHEDULED SCHEDULED CURRENT CURRENT PAID PRIMARY SUB MASTER
---------------------------------------------------------------------------------------------------------------------------------
ID LOAN LOAN PRINCIPAL INTEREST PRINCIPAL INTEREST TO SERVICER SERVICER SERVICER WORKOUT
---------------------------------------------------------------------------------------------------------------------------------
NUMBER NUMBER AMOUNT AMOUNT ADVANCE ADVANCE DATE FEES FEES FEES FEES
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
----------------------------------------- --------------------------------------
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
-------
NET
-------
ADVANCE
-------
<S> <C>
----------
0.00
-------
</TABLE>
<PAGE> 417
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C2, Class ____ Certificates [having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of August 24, 2000 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest
in the related Class]
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of August 1, 2000, among Salomon Brothers
Mortgage Securities VII, Inc., as Depositor, ORIX Real Estate Capital Markets,
LLC, as Master Servicer and as Special Servicer, and Wells Fargo Bank Minnesota,
N.A., as Trustee. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any and
all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the
<PAGE> 418
acts described in clauses (a) through (e) hereof) would constitute a
distribution of the Transferred Certificates under the Securities Act of 1933,
as amended (the "Securities Act"), or would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
3. The Transferor and any person acting on behalf of the
Transferor in this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act (a "Qualified Institutional Buyer") purchasing for its own
account or for the account of another person that is itself a Qualified
Institutional Buyer. In determining whether the Transferee is a Qualified
Institutional Buyer, the Transferor and any person acting on behalf of the
Transferor in this matter has relied upon the following method(s) of
establishing the Transferee's ownership and discretionary investments of
securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a
date within 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. purchaser and
within 18 months preceding such date of sale in the case of a
foreign purchaser; or
___ (b) The most recent publicly available information appearing
in documents filed by the Transferee with the Securities and
Exchange Commission or another United States federal, state,
or local governmental agency or self-regulatory organization,
or with a foreign governmental agency or self-regulatory
organization, which information is as of a date within 16
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18
months preceding such date of sale in the case of a foreign
purchaser; or
___ (c) The most recent publicly available information appearing
in a recognized securities manual, which information is as of
a date within 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. purchaser and
within 18 months preceding such date of sale in the case of a
foreign purchaser; or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer
of the Transferee, specifying the amount of securities owned
and invested on a discretionary basis by the Transferee as of
a specific date on or since the close of the Transferee's most
recent fiscal year, or, in the case of a Transferee that is a
member of a "family of investment companies", as that term is
defined in Rule 144A, a certification by an executive officer
of the investment adviser specifying the amount of securities
owned by the "family of investment companies" as of a specific
date on or since the close of the Transferee's most recent
fiscal year.
___ (e) Other. (Please specify brief description of method) _____
4. The Transferor and any person acting on behalf of the
Transferor understand that in determining the aggregate amount of securities
owned and invested on a discretionary basis by an entity for purposes of
establishing whether such entity is a Qualified Institutional Buyer:
2
<PAGE> 419
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with such entity; securities
that are part of an unsold allotment to or subscription by such entity,
if such entity is a dealer; securities of issuers that are part of such
entity's "family of investment companies", if such entity is a
registered investment company; bank deposit notes and certificates of
deposit; loan participations; repurchase agreements; securities owned
but subject to a repurchase agreement; and currency, interest rate and
commodity swaps;
(b) the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings in
its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has
been published, in which case the securities may be valued at market;
and
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be
included if the investments of such subsidiaries are managed under the
direction of the entity, except that, unless the entity is a reporting
company under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, securities owned by such subsidiaries may not be
included if the entity itself is a majority-owned subsidiary that would
be included in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the Transferor is
relying on the exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A.
6. The Transferor or a person acting on its behalf has
furnished, or caused to be furnished, to the Transferee all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans, (d)
the Pooling and Servicing Agreement, and (e) all related matters, that the
Transferee has requested.
Very truly yours,
(Transferor)
By: ______________________________________
Name:
Title:
3
<PAGE> 420
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C2, Class ____ Certificates [having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of August 24, 2000 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest
in the related Class]
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the captioned Certificates, (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of August 1, 2000, among Salomon Brothers
Mortgage Securities VII, Inc., as Depositor, ORIX Real Estate Capital Markets,
LLC, as Master Servicer and as Special Servicer, and Wells Fargo Bank Minnesota,
N.A., as Trustee. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any and
all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the
<PAGE> 421
acts described in clauses (a) through (e) hereof) would constitute a
distribution of the Transferred Certificates under the Securities Act of 1933,
as amended (the "Securities Act"), would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
Very truly yours,
(Transferor)
By:__________________________
Name:
Title:
2
<PAGE> 422
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C2, Class ____ Certificates [having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of August 24, 2000 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest
in the related Class]
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of August 1, 2000, among Salomon Brothers
Mortgage Securities VII, Inc., as Depositor, ORIX Real Estate Capital Markets,
LLC, as Master Servicer and as Special Servicer, and Wells Fargo Bank Minnesota,
N.A., as Trustee. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A ("Rule
144A") under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is being
made in reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificates for its own account or for the account of another Qualified
Institutional Buyer, and understands that such Transferred Certificates may be
resold, pledged or transferred only (a) to a person reasonably believed to be a
Qualified Institutional Buyer that purchases for its own account or for the
account of another Qualified Institutional Buyer and to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A, or
(b) pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance
1
<PAGE> 423
and servicing of the Mortgage Loans, (d) the Pooling and Servicing Agreement and
the Trust Fund created pursuant thereto, and (e) all related matters, that it
has requested.
3. If the Transferee proposes that the Transferred
Certificates be registered in the name of a nominee, such nominee has completed
the Nominee Acknowledgment below.
Very truly yours,
(Transferee)
By:________________________
Name:
Title:
2
<PAGE> 424
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
(Nominee)
By:_______________________
Name:
Title:
3
<PAGE> 425
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and The Chase Manhattan Bank, as Certificate
Registrar, with respect to the mortgage pass-through certificates being
transferred (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) [the Transferee] [each of the Transferee's equity owners]
owned and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions or is a foreign savings
and loan
---------------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
4
<PAGE> 426
association or equivalent institution and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. savings and loan association, and not more
than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated with
such Person, (ii) securities that are part of an unsold allotment to or
subscription by such Person, if such Person is a dealer, (iii) bank deposit
notes and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such Person
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of such Person, but only if such
subsidiaries are consolidated with such
5
<PAGE> 427
Person in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries are
managed under such Person's direction. However, such securities were not
included if such Person is a majority-owned, consolidated subsidiary of another
enterprise and such Person is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
_______________________________
Print Name of Transferee
By:____________________________
Name:
Title:
Date:
6
<PAGE> 428
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and The Chase Manhattan Bank, as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, and (ii) as marked below,
the Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment
7
<PAGE> 429
Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but subject to
a repurchase agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
8
<PAGE> 430
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
Print Name of Transferee or Adviser
By: _________________________________
Name:
Title:
IF AN ADVISER:
Print Name of Transferee_____________
Date: _______________________________
9
<PAGE> 431
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C2, Class ____ Certificates [having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of August 24, 2000 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest
in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _______________________ (the "Transferor") to ______________________
_______________ (the "Transferee") of the captioned Certificates (the
"Transferred Certificates"), pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 2000, among Salomon Brothers Mortgage Securities VII, Inc., as Depositor,
ORIX Real Estate Capital Markets, LLC, as Master Servicer and as Special
Servicer, and Wells Fargo Bank Minnesota, N.A., as Trustee. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. Transferee is acquiring the Transferred Certificates for
its own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the Securities Act
or registered or qualified under any applicable state securities laws, (b) none
of the Depositor, the Trustee, the Certificate Administrator or Certificate
Registrar is obligated so to register or qualify the Transferred Certificates,
and (c) neither the Transferred Certificates nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless it is (i)
registered pursuant to the Securities Act and registered or qualified pursuant
to any applicable state securities laws or (ii) sold or transferred in a
transaction which is exempt from such registration and qualification and the
Certificate Registrar has received (A) a certificate from the prospective
transferor substantially in the form attached as Exhibit F-1A to the Pooling and
Servicing Agreement; (B) a certificate from the
<PAGE> 432
prospective transferor substantially in the form attached as Exhibit F-1B to the
Pooling and Servicing Agreement and a certificate from the prospective
transferee substantially in the form attached either as Exhibit F-2A or as
Exhibit F-2B to the Pooling and Servicing Agreement; or (C) an Opinion of
Counsel satisfactory to the Certificate Registrar that the transfer may be made
without registration under the Securities Act, together with the written
certification(s) as to the facts surrounding the transfer from the prospective
transferor and/or prospective transferee upon which such Opinion of Counsel is
based.
3. The Transferee understands that it may not sell or
otherwise transfer the Transferred Certificates, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the Transferred
Certificates will bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT
BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY,
THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT TO (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER")
OR (2) AN ACCREDITED INVESTOR WITHIN THE MEANING OF PARAGRAPH (1), (2),
(3) OR (7) OF RULE 501(a) OF REGULATION D UNDER THE SECURITIES ACT OR
AN ENTITY IN WHICH ALL THE EQUITY OWNERS CONSTITUTE ENTITIES DESCRIBED
IN SUCH PARAGRAPHS.]
2
<PAGE> 433
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the disposition
of the Transferred Certificates a violation of Section 5 of the Securities Act
or any state securities law or would require registration or qualification of
the Transferred Certificates pursuant thereto. The Transferee will not act, nor
has it authorized nor will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to the Transferred Certificates,
any interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) nature, performance and servicing of the Mortgage Loans, (d) the
Pooling and Servicing Agreement and the Trust Fund created pursuant thereto and
(e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" within the
meaning of paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities
Act or an entity in which all the equity owners come within such paragraphs and
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred
Certificates be registered in the name of a nominee, such nominee has completed
the Nominee Acknowledgment below.
Very truly yours,
(Transferee)
By: ____________________________
Name:
Title:
Date:
3
<PAGE> 434
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
(Nominee)
By: ____________________________
Name:
Title:
4
<PAGE> 435
EXHIBIT F-2C
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN CLASS X CERTIFICATES
WHILE HELD IN BOOK-ENTRY FORM
[Date]
[TRANSFEROR]
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series
2000-C2, Class X
Ladies and Gentlemen:
This letter is delivered to you in connection with the
Transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class X Certificates having an initial Certificate Notional Amount as of August
24, 2000 (the "Closing Date") of $__________ (the "Transferred Certificates").
The Certificates, including the Transferred Certificates, were issued pursuant
to the Pooling and Servicing Agreement, dated as of August 1, 2000 (the "Pooling
and Servicing Agreement"), among Salomon Brothers Mortgage Securities VII, Inc.,
as depositor (the "Depositor"), ORIX Real Estate Capital Markets, LLC, as master
servicer and as special servicer, and Wells Fargo Bank Minnesota, N.A., as
trustee (the "Trustee"). All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the Transfer to it of the Transferor's interest in the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring such interest in the Transferred Certificates
for its own account or for the account of a Qualified Institutional
Buyer.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (b) neither the Depositor nor the Trustee is obligated
so to register or qualify the Transferred Certificates, and (c) neither
the Transferred Certificates nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Transferor desiring to effect such transfer has
received either (A) a certificate from the prospective
<PAGE> 436
transferee substantially in the form attached either as Exhibit F-2C to
the Pooling and Servicing Agreement or as Exhibit F-2D to the Pooling
and Servicing Agreement or (B) an opinion of counsel satisfactory to
the Transferor to the effect that such transfer may be made without
registration under the Securities Act.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate, any security issued in
exchange therefor or in lieu thereof or any interest in the foregoing
except in compliance with the provisions of Section 5.02 of the Pooling
and Servicing Agreement, which provisions it has carefully reviewed,
and that each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE
MADE (A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
THAT IS SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF, ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. The Transferee has been furnished with all information
regarding (a) The Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement, and (e) all
related matters, that it has requested.
Very truly yours,
(Transferee)
By: ____________________________
Name:
Title:
2
<PAGE> 437
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and for the benefit of Salomon Brothers Mortgage
Securities VII, Inc. with respect to the mortgage pass-through certificates
being transferred in book-entry form (the "Transferred Certificates") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity acquiring interests in the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) [the Transferee] [each of the Transferee's equity owners]
owned and/or invested on a discretionary basis $______________________(2) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale for a foreign bank or equivalent
institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar
---------------
(2) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
3
<PAGE> 438
institution, which is supervised and examined by a State or
Federal authority having supervision over any such
institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as
of a date not more than 16 months preceding the date of sale
of the Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months preceding
such date of sale in the case of a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include (i) securities of issuers that are affiliated with
such Person, (ii) securities that are part of an unsold allotment to or
subscription by such Person, if such Person is a dealer, (iii) bank deposit
notes and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any such Person,
the Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the basis
of their market value, and no current information with respect to the cost
4
<PAGE> 439
of those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of such Person, but only if such
subsidiaries are consolidated with such Person in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under such Person's direction.
However, such securities were not included if such Person is a majority-owned,
consolidated subsidiary of another enterprise and such Person is not itself a
reporting company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the statements
made herein because one or more Transfers to the Transferee may be in reliance
on Rule 144A.
____ ____ Will the Transferee be acquiring interests in
Yes No the Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a third
party that is itself a "qualified institutional buyer" within the meaning of
Rule 144A, and the "qualified institutional buyer" status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's acquisition of any interest
in of the Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such acquisition. In addition, if the Transferee
is a bank or savings and loan as provided above, the Transferee agrees that it
will furnish to such parties any updated annual financial statements that become
available on or before the date of such acquisition, promptly after they become
available.
8. Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
(Transferee)
By: _______________________________
Name:
Title:
Date:
5
<PAGE> 440
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and for the benefit of Salomon Brothers Mortgage
Securities VII, Inc. with respect to the mortgage pass-through certificates
being transferred in book-entry form (the "Transferred Certificates") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity acquiring interests in the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because the Transferee is part of a Family of Investment Companies (as
defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
6
<PAGE> 441
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein because one
or more Transfers to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be acquiring interests
Yes No in the Transferred Certificates only for
the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a third
party that is itself a "qualified institutional buyer" within the meaning of
Rule 144A, and the "qualified institutional buyer" status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's acquisition of any interest in the
Transferred Certificates will constitute a reaffirmation of this certification
by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
(Transferee or Adviser)
By: _________________________________
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
7
<PAGE> 442
EXHIBIT F-2D
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN CLASS X CERTIFICATES
WHILE HELD IN BOOK-ENTRY FORM
[Date]
[TRANSFEROR]
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series
2000-C2, Class X
Ladies and Gentlemen:
This letter is delivered to you in connection with the
Transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class X Certificates having an initial Certificate Notional Amount as of August
24, 2000 (the "Closing Date") of $__________ (the "Transferred Certificates").
The Certificates, including the Transferred Certificates, were issued pursuant
to the Pooling and Servicing Agreement, dated as of August 1, 2000 (the "Pooling
and Servicing Agreement"), among Salomon Brothers Mortgage Securities VII, Inc.,
as depositor (the "Depositor"), ORIX Real Estate Capital Markets, LLC, as master
servicer and as special servicer and Wells Fargo Bank Minnesota, N.A., as
trustee. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that:
1. The Transferee is acquiring the Transferor's beneficial
ownership interest in the Transferred Certificates for its own account for
investment and not with a view to or for sale or transfer in connection with any
distribution thereof, in whole or in part, in any manner which would violate the
Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the Securities Act
or registered or qualified under any applicable state securities laws, (b)
neither the Depositor nor the Trustee is obligated so to register or qualify the
Transferred Certificates, and (c) neither the Transferred Certificates nor any
security issued in exchange therefor or in lieu thereof may be resold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant any applicable state securities laws, or (ii)
is sold or transferred in transactions which are exempt from such registration
and qualification and the Transferor desiring to effect such transfer has
received either (A) a certificate from the prospective transferee substantially
in the form attached either as Exhibit F-2C to the Pooling and Servicing
Agreement or as Exhibit F-2D to the Pooling and Servicing Agreement or (B) an
opinion of counsel satisfactory to the Transferor to the effect that such
transfer may be made without registration under the Securities Act.
<PAGE> 443
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that each Transferred
Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A)
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF, ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT,
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any interest in any Transferred Certificate or
any other similar security, which (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the disposition
of the Transferred Certificates a violation of Section 5 of the Securities Act
or any state securities law or would require registration or qualification of
the Transferred Certificates pursuant thereto. The Transferee will not act, nor
has it authorized or will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and
2
<PAGE> 444
Servicing Agreement and the Trust Fund created pursuant thereto, (d) the nature,
performance and servicing of the Mortgage Loans, and (e) all related matters,
that it has requested.
6. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificates; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
By: _________________________________
Name:
3
<PAGE> 445
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(DEFINITIVE SUBORDINATED CERTIFICATES)
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series
2000-C2, Class ______ Certificates [having an initial
Certificate [Principal Balance] [Notional Amount] as
of June __, 2000 (the "Closing Date") of $________]
[evidencing a _____% Percentage Interest in the
related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the captioned mortgage pass-through certificates (the
"Transferred Certificates") pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 2000, among Salomon Brothers Mortgage Securities VII, Inc., as Depositor,
ORIX Real Estate Capital Markets, LLC, as Master Servicer and as Special
Servicer, and Wells Fargo Bank Minnesota, N.A., as Trustee. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, as follows
(check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan or other employee
benefit plan or arrangement, including an individual retirement account
or annuity, a Keogh plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
including an insurance company general account, that is subject to
ERISA or Section 4975 of the Code (each, a "Plan"), nor (B) a Person
who is directly or indirectly purchasing the Transferred Certificates
on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or
<PAGE> 446
___ The Transferee is using funds from an insurance company general account
to acquire the Transferred Certificates, however, the purchase and
holding of such Certificates by such Person is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section
4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60.
___ The Transferred Certificates are Class X Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 91-23, and such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section
3(16)(B) of ERISA) by the Trustee, the Depositor, any Fiscal Agent, any
of the Mortgage Loan Sellers, the Master Servicer, any
Exemption-Favored Party, the Special Servicer, any Sub-Servicer or any
Borrower with respect to any Mortgage Loan or group of Mortgage Loans
that represents more than 5% of the aggregate unamortized principal
balance of the Mortgage Loans determined on the date of the initial
issuance of the Certificates, or by an Affiliate of any such Person,
and (Z) agrees that it will obtain from each of its Transferees to
which it transfers an interest in the Transferred Certificates, a
written representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (X) and (Y), together
with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding
clauses (X) and (Y).
Very truly yours,
(Transferee)
By: ___________________________
Name:
Title:
2
<PAGE> 447
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (CLASS X CERTIFICATES)
[Date]
[TRANSFEROR]
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series
2000-C2, Class X
Ladies and Gentlemen:
This letter is delivered to you in connection with the
Transfer by ______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class X Certificates having an initial Certificate Notional Amount as of August
24, 2000 (the "Closing Date") of $__________ (the "Transferred Certificates").
The Certificates, including the Transferred Certificates, were issued pursuant
to the Pooling and Servicing Agreement, dated as of August 1, 2000 (the "Pooling
and Servicing Agreement"), among Salomon Brothers Mortgage Securities VII, Inc.,
as depositor, ORIX Real Estate Capital Markets, LLC, as master servicer and as
special servicer, and Wells Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you as follows
(check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan, an employee benefit
plan or other retirement arrangement, including an individual
retirement account or annuity, a Keogh plan or a collective investment
fund or separate account in which such plans, accounts or arrangements
are invested, including an insurance company general account, that is
subject to Section 406 of ERISA or Section 4975 of the Code (each, a
"Plan"), nor (B) a Person who is directly or indirectly purchasing an
interest in the Transferred Certificates on behalf of, as named
fiduciary of, as trustee of, or with assets of, a Plan;
___ The Transferee is using funds from an insurance company general account
to acquire an interest in the Transferred Certificates, however, the
purchase and holding of such interest by such Person is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section
4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or
___ The Transferred Certificates are Class X Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 91-23, and such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section
3(16)(B) of ERISA) by the Trustee, the Depositor, any Fiscal Agent, any
of the Mortgage Loan
<PAGE> 448
Sellers, the Master Servicer, any Exemption-Favored Party, the Special
Servicer, any Sub-Servicer or any Borrower with respect to any Mortgage
Loan or group of Mortgage Loans that represents more than 5% of the
aggregate unamortized principal balance of the Mortgage Loans
determined on the date of the initial issuance of the Certificates, or
by an Affiliate of any such Person, and (Z) agrees that it will obtain
from each of its Transferees to which it transfers an interest in the
Transferred Certificates, a written representation that such
Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are Plans
a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (X) and (Y).
(Transferee)
By: ____________________________
Name:
Title:
2
<PAGE> 449
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS R CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says
that:
1. He/She is the ____________________ of ____________________
(the prospective transferee (the "Transferee") of Salomon Brothers Mortgage
Securities VII, Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-C2, Class R, evidencing a __% Percentage Interest in such Class (the
"Residual Interest Certificates")), a _________________ duly organized and
validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Interest Certificates were
issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will
be, a Permitted Transferee and will endeavor to remain a Permitted Transferee
for so long as it holds the Residual Interest Certificates, and (ii) is
acquiring the Residual Interest Certificates for its own account or for the
account of another prospective transferee from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any Person other than a "Disqualified Organization" or a
"non-United States Person", but in addition, if such Person is classified as a
partnership under the Code, such Person can only be a "Permitted Transferee" if
all of its beneficial owners are United States Persons. For this purpose, a
"Disqualified Organization" means the United States, any state or political
subdivision thereof, any agency or instrumentality of any of the foregoing
(other than an instrumentality, all of the activities of which are subject to
tax and, except for the Federal Home Loan Mortgage Corporation, a majority of
whose board of directors is not selected by any such governmental entity) or any
foreign government, international organization or any agency or instrumentality
of such foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives) that
is generally exempt from federal income tax unless such organization is subject
to the tax on unrelated business taxable income. A "non-United States Person" is
any Person other than a "United States Person". A "United States Person" is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in, or under the laws of, the United States or any
political subdivision thereof, an estate whose income from sources without the
United States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States or a trust as to which (i) a court in the United States
is able to exercise primary supervision over the administration of the trust and
(ii) one or more United States fiduciaries have the right to control all
substantial decisions of the trust or, to the extent provided in the Treasury
regulations, a trust if it was in existence on August 20, 1996 and if elected to
be treated as a United States Person).
<PAGE> 450
3. The Transferee is aware (i) of the tax that would be
imposed under the Code on transfers of the Residual Interest Certificates to
non-Permitted Transferees; (ii) that such tax would be on the transferor or, if
such transfer is through an agent (which Person includes a broker, nominee or
middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such Person an affidavit that the transferee is a
Permitted Transferee and, at the time of transfer, such Person does not have
actual knowledge that the affidavit is false; and (iv) that the Residual
Interest Certificates may be a "noneconomic residual interest" within the
meaning of Treasury regulation Section 1.860E-1(c) and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer is to enable the transferor to impede the assessment or collection of
tax.
4. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual Interest Certificates if at any time
during the taxable year of the pass-through entity a non-Permitted Transferee is
the record holder of an interest in such entity. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will
not register any transfer of the Residual Interest Certificates by the
Transferee unless the Transferee's transferee, or such transferee's agent,
delivers to the Certificate Registrar, among other things, an affidavit and
agreement in substantially the same form as this affidavit and agreement. The
Transferee expressly agrees that it will not consummate any such transfer if it
knows or believes that any representation contained in such affidavit and
agreement is false. In addition, the Transferee is aware the Certificate
Registrar will not register any transfer of the Residual Interest Certificates
to an entity classified as a partnership under the Code unless at the time of
transfer, all of the beneficial owners of such entity are "United States
Persons".
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Interest Certificates will
only be owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
______________.
8. The Transferee has reviewed the provisions of Section
5.02(d) of the Pooling and Servicing Agreement, a description of which
provisions is set forth in the Residual Interest Certificates (in particular,
the portion of Section 5.02(d) which authorizes the Trustee to deliver payments
on the Residual Interest Certificates to a Person other than the Transferee and
the portion of Section 5.02(d) which authorizes the Trustee to negotiate a
mandatory sale of the Residual Interest Certificates, in either case, in the
event that the Transferee holds such Residual Interest Certificates in violation
of Section 5.02(d)); and the Transferee expressly agrees to be bound by and to
comply with such provisions.
9. No purpose of the Transferee relating to its purchase or
any sale of the Residual Interest Certificates is or will be to impede the
assessment or collection of any tax.
2
<PAGE> 451
10. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Interest Certificates as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows
generated by the Residual Interest Certificates.
11. The Transferee will, in connection with any transfer that
it makes of the Residual Interest Certificates, deliver to the Certificate
Registrar a representation letter substantially in the form of Exhibit H-2 to
the Pooling and Servicing Agreement in which it will represent and warrant,
among other things, that it is not transferring the Residual Interest
Certificates to impede the assessment or collection of any tax and that it has
at the time of such transfer conducted a reasonable investigation of the
financial condition of the proposed Transferee (or its current beneficial owners
if such Transferee is classified as a partnership under the Code) as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has satisfied
the requirements of such provision.
3
<PAGE> 452
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to the authority of its Board of
Directors, by its ____________________ and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this ______ day of
______________.
[NAME OF TRANSFEREE]
By:__________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
________________________________
[Assistant] Secretary
Personally appeared before me the above-named ____________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ____________________ of the Transferee, and acknowledged to me that
he/she executed the same as his/her free act and deed and the free act and deed
of the Transferee
Subscribed and sworn before me this ______ day of __________________, ________.
NOTARY PUBLIC
COUNTY OF
STATE OF __________________________
My Commission expires the _________ day of ___________, ____.
4
<PAGE> 453
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C2, Class R Certificates, evidencing a ____%
Percentage Interest in such Class (the "Residual
Interest Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the Residual Interest Certificates, pursuant to the Pooling and
Servicing Agreement, dated as of August 1, 2000 (the "Pooling and Servicing
Agreement"), among Salomon Brothers Mortgage Securities VII, Inc., as Depositor,
ORIX Real Estate Capital Markets, LLC, as Master Servicer and as Special
Servicer, and Wells Fargo Bank Minnesota, N.A., as Trustee. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Interest Certificates by the Transferor to the Transferee is or
will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit H-1. The Transferor does not know or
believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or the
beneficial owners of the Transferee if the Transferee is classified as a
partnership under the Code) as contemplated by Treasury regulation Section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has
determined that the Transferee has historically paid its debts as they became
due and has found no significant evidence to indicate that the Transferee will
not continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Interest Certificates may not be
respected for United States income tax purposes (and the
<PAGE> 454
Transferor may continue to be liable for United States income taxes associated
therewith) unless the Transferor has conducted such an investigation.
Very truly yours,
(Transferor)
By: __________________________
Name:
Title:
2
<PAGE> 455
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[date]
Moody's Investors Service
99 Church Street, 6th Floor
New York, New York 10007
Attention: Commercial MBS Monitoring Department
Fitch, Inc.
One State Street Plaza, 31st Floor
New York, New York 10004
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C2
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.06 of the
Pooling and Servicing Agreement, dated as of August 1, 2000, and relating to
Salomon Brothers Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-C2 (the "Agreement"). Capitalized terms used but not
otherwise defined herein shall have respective meanings assigned to them in the
Agreement.
Notice is hereby given that the Holders of Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
have designated __________________ to serve as the Special Servicer under the
Agreement.
The designation of ____________________________as Special Servicer will become
final if certain conditions are met and each Rating Agency delivers to Wells
Fargo Bank Minnesota, N.A., the trustee under the Agreement (the "Trustee"),
written confirmation that if the person designated to become the Special
Servicer were to serve as such, such event would not result in the
qualification, downgrade or withdrawal of the rating or ratings assigned to one
or more Classes of the Certificates. Accordingly, such confirmation is hereby
requested as soon as possible.
<PAGE> 456
Please acknowledge receipt of this notice by signing the
enclosed copy of this notice where indicated below and returning it to the
Trustee, in the enclosed stamped self-addressed envelope.
Very truly yours,
WELLS FARGO BANK MINNESOTA, N.A.,
as Trustee
By: ______________________________
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE
By: ________________________________
Name:
Title:
Date:
FITCH, INC.
By: ________________________________
Name:
Title:
Date:
2
<PAGE> 457
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
August __, 2000
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
ORIX Real Estate Capital Markets, LLC
1717 Main Street, Suite 1400
Dallas, Texas 75201
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street
New York, New York 10013
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series
2000-C2
Ladies and Gentlemen:
Pursuant to Section 6.06 of the Pooling and Servicing
Agreement, dated as of August 1, 2000 relating to Salomon Brothers Mortgage
Securities VII, Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-C2 (the "Agreement"), the undersigned hereby agrees with all the other
parties to the Agreement that the undersigned shall serve as Special Servicer
under, and as defined in, the Agreement. The undersigned hereby acknowledges
that, as of the date hereof, it is and shall be a party to the Agreement and
bound thereby to the full extent indicated therein in the capacity of Special
Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 2.06 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization: ___________________________.
By: _________________________________
Name:
Title:
<PAGE> 458
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
DEBTOR:
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street
New York, New York 10013
SECURED PARTY:
Wells Fargo Bank Minnesota, N.A.
as Trustee for the registered holders of
Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2000-C2
45 Broadway, 12th Floor
New York, New York 10006
TEXT:
See Exhibit 1 Attached Hereto
<PAGE> 459
EXHIBIT 1 TO EXHIBIT J
This Exhibit 1 is attached to and incorporated in a financing
statement pertaining to Salomon Brothers Mortgage Securities VII, Inc., as
depositor (referred to as the "Debtor" for the purpose of this financing
statement only), and Wells Fargo Bank Minnesota, N.A., as trustee for the
holders of the Series 2000-C2 Certificates (referred to as the "Secured Party"
for purposes of this financing statement only), under that certain Pooling and
Servicing Agreement, dated as of August 1, 2000 (the "Pooling and Servicing
Agreement"), among the Debtor as depositor, the Secured Party as trustee, ORIX
Real Estate Capital Markets, LLC, as master servicer (in such capacity, the
"Master Servicer") and as special servicer (in such capacity, the "Special
Servicer"), relating to the issuance of the Debtor's Commercial Mortgage
Pass-Through Certificates, Series 2000-C2 (collectively, the "Series 2000-C2
Certificates"). Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement. The
attached financing statement covers all of the Debtor's right (including the
power to convey title thereto), title and interest in and to the Trust Fund
created pursuant to the Pooling and Servicing Agreement, consisting of the
following:
1. The mortgage notes or other evidence of indebtedness
of a borrower (the "Mortgage Notes") with respect to
the mortgage loans (the "Mortgage Loans") listed on
the Mortgage Loan Schedule to the Pooling and
Servicing Agreement, which Mortgage Loan Schedule is
attached hereto as Exhibit A;
2. The related mortgages, deeds of trust or other
similar instruments securing such Mortgage Notes (the
"Mortgages");
3. With respect to each Mortgage Note and each Mortgage,
each other legal, credit and servicing document
related to such Mortgage Note and Mortgage
(collectively, with such related Mortgage Note and
Mortgage, the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by the Master
Servicer pursuant to the Pooling and Servicing
Agreement, (b) all funds from time to time on deposit
in the Collection Account, (c) the investments of any
such funds consisting of securities, instruments or
other obligations, and (d) the general intangibles
consisting of the contractual right to payment,
including, without limitation, the right to payments
of principal and interest and the right to enforce
the related payment obligations, arising from or
under any such investments;
5. All REO Property;
6. (a) the REO Account required to be maintained by the
Special Servicer pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time
on deposit in the REO Account, (c) the investments of
any such funds consisting of securities, instruments
or other obligations, and (d) the general intangibles
consisting of the contractual right to payment,
including, without limitation, the right to payments
of principal and
2
<PAGE> 460
interest and the right to enforce the related payment
obligations, arising from or under any such
investments;
7. (a) the Servicing Account(s) and Reserve Account(s)
required to be maintained by the Master Servicer or
Special Servicer pursuant to the Pooling and
Servicing Agreement, and (b) all funds from time to
time on deposit in the Servicing Account(s) and
Reserve Account(s);
8. (a) the Distribution Account, Interest Reserve
Account and Gain on Sale Reserve Account required to
be maintained by the Secured Party pursuant to the
Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the Distribution Account,
(c) the investments of any such funds consisting of
securities, instruments or other obligations, and (d)
the general intangibles consisting of the contractual
right to payment, including, without limitation, the
right to payments of principal and interest and the
right to enforce the related payment obligations,
arising from or under any such investments;
9. All insurance policies, including the right to
payments thereunder, with respect to the Mortgage
Loans required to be maintained pursuant to the
Mortgage Loan Documents and the Pooling and Servicing
Agreement, transferred to the Trust and to be
serviced by the Master Servicer or Special Servicer;
and
10. All income, payments, products and proceeds of any of
the foregoing, together with any additions thereto or
substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS, AND
THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT
OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP
OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR
OTHER MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN INSTRUMENT, A
CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD
THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY
TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY IN THE
CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO
PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT
OBLIGATIONS, ARISING FROM OR UNDER ANY
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<PAGE> 461
SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION,
ANY PERMITTED INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE
ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
4
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EXHIBIT A TO EXHIBIT 1 TO EXHIBIT J
MORTGAGE LOAN SCHEDULE
5
<PAGE> 463
EXHIBIT K
CALCULATION OF NET OPERATING INCOME
With respect to any Mortgaged Property, "Net Operating Income"
shall mean for each fiscal year, trailing twelve (12) months or portion thereof,
(i) the related Operating Income allocable to such period, less (ii) the related
Operating Expenses allocable to such period.
With respect to any Mortgaged Property "Operating Income"
shall mean, for each fiscal year or portion thereof, all revenue derived by the
related Mortgagor arising from the Mortgaged Property, including, without
limitation, rental revenues (whether denominated as basic rent, additional rent,
percentage rent, escalation payments, electrical payments or otherwise) and
other fees and charges payable pursuant to leases or otherwise in connection
with the Mortgaged Property, and rent insurance proceeds. Operating Income shall
not include (a) insurance proceeds (other than proceeds of business interruption
or other similar insurance allocable to the applicable period) and condemnation
awards (other than awards arising from a temporary taking or the use and
occupancy of all or part of the applicable Mortgaged Property allocable to the
applicable period), or interest accrued on such proceeds or awards, (b) proceeds
of any financing, (c) proceeds of any sale, exchange or transfer of the
Mortgaged Property or any part thereof or interest therein, (d) capital
contributions or loans to the Mortgagor or an Affiliate of the Mortgagor, (e)
any item of income otherwise includible in Operating Income but paid directly by
any tenant to a Person other than the Mortgagor except for real estate taxes
paid directly to any taxing authority by any tenant, (f) any other
extraordinary, non-recurring revenues, (g) rent paid by or on behalf of any
lessee under space lease which is the subject of any proceeding or action
relating to its bankruptcy, reorganization or other arrangement pursuant to
federal bankruptcy law or any similar federal or state law or which has been
adjudicated a bankrupt or insolvent, unless such space lease has been affirmed
by the trustee in such proceeding or action, or (h) rent paid by or on behalf of
any lessee under a space lease the demised premises of which are not occupied
either by such lessee or by a sublessee thereof.
With respect to any Mortgaged Property "Operating Expenses"
shall mean, for each fiscal year, trailing twelve (12) months or portion
thereof, all expenses directly attributable to the operation, repair and/or
maintenance of the Mortgaged Property, including, without limitation,
impositions, insurance premiums, management fees, payments to third party
suppliers, and costs attributable to the operation, repair and maintenance of
the systems for heating, ventilating and air conditioning, and actually paid for
by the Mortgagor. Operating Expenses shall not include interest, principal and
premium, if any, due under the Mortgage Note or otherwise in connection with any
other secured indebtedness, income taxes, extraordinary capital improvements
costs, or any non-cash charge or expense such as depreciation.
<PAGE> 464
EXHIBIT L-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C2
In accordance with the Pooling and Servicing Agreement, dated
as of August 1, 2000 (the "Pooling and Servicing Agreement"), among Salomon
Brothers Mortgage Securities VII, Inc., as depositor (the "Depositor"), ORIX
Real Estate Capital Markets, LLC, as master servicer and as special servicer,
and Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), with respect
to the Salomon Brothers Mortgage Securities VII, Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-C2 (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a beneficial holder of
$___________ aggregate [Certificate Principal
Balance/Certificate Notional Amount] of the Class
____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information"):
___ The information on the Certificate
Administrator's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing
Agreement.
___ The information identified on the schedule
attached hereto pursuant to Section 8.12(b)
of the Pooling and Servicing Agreement.
3. In consideration of the Certificate Administrator's
disclosure to the undersigned of the Information, the
undersigned will keep the Information confidential
(except from such outside persons as are assisting it
in evaluating the Information), and such Information
will not, without the prior written consent of the
Certificate Administrator, be disclosed by the
undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively,
the "Representatives") in any manner whatsoever, in
whole or in part; provided that the undersigned may
<PAGE> 465
provide all or any part of the Information to any
other person or entity that holds or is contemplating
the purchase of any Certificate or interest therein,
but only if such person or entity confirms in writing
such ownership interest or prospective ownership
interest and agrees to keep it confidential; and
provided that the undersigned may provide all or any
part of the Information to its auditors, legal
counsel and regulators.
4. The undersigned will not use or disclose the
Information in any manner which could result in a
violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would
require registration of any Privately Offered
Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities
Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[BENEFICIAL HOLDER OF A
CERTIFICATE]
By: ____________________________
Name:
Title:
Telephone No.:
2
<PAGE> 466
EXHIBIT L-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services (CMFS)
Salomon Brothers 2000-C2
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C2
In accordance with the Pooling and Servicing Agreement, dated
as of August 1, 2000 (the "Pooling and Servicing Agreement"), among Salomon
Brothers Mortgage Securities VII, Inc., as depositor (the "Depositor"), ORIX
Real Estate Capital Markets, LLC, as master servicer and as special servicer,
and Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), with respect
to the Salomon Brothers Mortgage Securities VII, Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-C2 (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the
Class ____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information") for use in evaluating
such possible investment:
___ The information on the Certificate
Administrator's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing
Agreement.
___ The information identified on the schedule
attached hereto pursuant to Section 8.12(b)
of the Pooling and Servicing Agreement.
3. In consideration of the Certificate Administrator's
disclosure to the undersigned of the Information, the
undersigned will keep the Information confidential
(except from such outside persons as are assisting it
in making the investment decision described in
paragraphs 1 and 2), and such Information will not,
without the prior written consent of the Certificate
Administrator, be disclosed by the undersigned or by
its officers, directors, partners, employees, agents
or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole
or in part; provided that in the event the
undersigned purchases any Certificate or any interest
in any Certificate, the undersigned may provide all
or any part of the Information to any other person or
entity that holds or is contemplating
<PAGE> 467
the purchase of any Certificate or interest therein,
but only if such person or entity confirms in writing
such ownership interest or prospective ownership
interest and agrees to keep it confidential; and
provided that the undersigned may provide all or any
part of the Information to its auditors, legal
counsel and regulators.
4. The undersigned will not use or disclose the
Information in any manner which could result in a
violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would
require registration of any Privately Offered
Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities
Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[PROSPECTIVE PURCHASER]
By: ___________________________
Name:
Title:
Telephone No.:
2
<PAGE> 468
EXHIBIT M-1
FORM OF SBRC MORTGAGE LOAN PURCHASE
AGREEMENT
M-1
<PAGE> 469
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective as of August 15, 2000, between Salomon Brothers Realty
Corp., a New York Corporation ("SBRC"), 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 two 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 Fitch,
Inc. and Moody's Investors Service, Inc. (together, the "Rating Agencies").
Certain classes of the Certificates (the "Registered Certificates") will be
registered under the Securities Act of 1933, as amended (the "Securities Act").
The Trust will be created and the Certificates will be issued pursuant to a
pooling and servicing agreement to be dated as of August 1, 2000 (the "Pooling
and Servicing Agreement"), among SBMS VII, as depositor, ORIX Real Estate
Capital Markets, LLC, as master servicer (in such capacity, the "Master
Servicer") and as special servicer (in such capacity, the "Special Servicer"),
and Wells 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
<PAGE> 470
REMIC Interests to the Trust contemporaneously with its purchase of the Mortgage
Loans and the Loan REMIC Interests hereunder.
The Depositor will acquire some of the Other Loans from Paine
Webber Real Estate Securities Inc. ("PWRES"), some of the Other Loans from
Artesia Mortgage Capital Corporation ("AMCC"), and the remaining Other Loans
from ORIX Real Estate Capital Markets, LLC ("ORECM"; and, collectively with
PWRES and AMCC, the "Other Loan Sellers").
SBMS VII intends to sell the Registered Certificates to
Salomon Smith Barney Inc. ("Salomon"), PaineWebber Incorporated ("PaineWebber"),
Chase Securities Inc. ("Chase") and Artesia Banking Corp. ("Artesia BC"),
pursuant to an underwriting agreement, dated the date hereof (the "Underwriting
Agreement"), among SBMS VII, Salomon, PaineWebber, Chase and Artesia BC; and
SBMS VII intends to sell the remaining Certificates (the "Non-Registered
Certificates") to Salomon and PaineWebber, pursuant to a certificate purchase
agreement, dated the date hereof (the "Certificate Purchase Agreement"), among
SBMS VII, Salomon and PaineWebber. The Registered Certificates are more fully
described in the prospectus dated August 4, 2000 (the "Basic Prospectus"); and
the supplement to the Basic Prospectus dated August 15, 2000 (the "Prospectus
Supplement"; and, together with the Basic Prospectus, the "Prospectus"), as each
may be amended or supplemented any time hereafter. Certain classes of the
Non-Registered Certificates are more fully described in the private placement
memorandum dated August 15, 2000 (the "Memorandum"), as it may be amended or
supplemented at any time hereafter.
SBRC will indemnify SBMS VII, Salomon, PaineWebber, Chase,
Artesia BC, the Other Loan Sellers 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 the date hereof (the "Indemnification Agreement"), among SBRC,
SBMS VII, Salomon, PaineWebber, Chase and Artesia BC.
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 August 24, 2000 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 scheduled due dates in August
2000 (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
$297,922,193, subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans and the Loan REMIC Interests shall be $301,409,780, together
with accrued interest on the Mortgage Loans at their respective Net Mortgage
Rates from and including the
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<PAGE> 471
Cut-off Date 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).
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt
of the purchase price referred to in Section 1 hereof, the Seller does hereby
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse but subject to the terms of this Agreement, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including, without limitation, all of the
Seller's right, title and interest in and to the proceeds of any related title,
hazard or other insurance policies received by the Seller on or with respect to
the Mortgage Loans after the Cut-off Date and any Additional Collateral; and any
and all related Loan REMIC Interests. The Seller shall, within 15 days of the
discovery of an 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. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its
expense, deliver or cause to be delivered to the Purchaser or its designee the
Mortgage File and any Additional Collateral (other than reserve funds and escrow
payments) with respect to each Mortgage Loan. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipient of the items
described in the preceding sentence shall be the Trustee.
If the Seller cannot deliver, or cause to be delivered, on or
before the Closing Date, as to any Mortgage Loan, the original Mortgage Note,
the Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser, Trustee, Master Servicer and
Special Servicer against any losses and expenses that may be incurred by reason
of such lost or destroyed Mortgage Note. If the Seller cannot deliver, or cause
to be delivered, on or before the Closing Date, as to any Mortgage Loan, any of
the documents and/or instruments required to be delivered as part of the
Mortgage File for such Mortgage Loan, with evidence of recording or filing
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, the delivery requirements of this Agreement shall be deemed to have been
satisfied as to such non-delivered document or instrument provided that a
photocopy of such non-delivered document or instrument (without evidence of
recording or filing, but certified by the Seller to be a true and complete copy
of the original thereof submitted for recording or filing) is delivered to the
Purchaser, the Trustee or a Custodian appointed thereby
6
<PAGE> 472
on or before the Closing Date, and either the original of such non-delivered
document or instrument, or a photocopy thereof (certified by the appropriate
county recorder's office, in the case of a Mortgage, to be a true and complete
copy of the original thereof submitted for recording or filing), with evidence
of recording or filing thereon, is delivered to the Purchaser, the Trustee or
such Custodian within 365 days of the Closing Date (or within such longer period
after the Closing Date as the Purchaser may consent to, which consent shall not
be unreasonably withheld so long as the Seller is in good faith attempting to
obtain from the appropriate county recorder's office such original or
photocopy). If the Seller cannot deliver, or cause to be delivered, on or before
the Closing Date, as to any Mortgage Loan, any of the documents and/or
instruments referred to in the definition of "Mortgage File", with evidence of
recording thereon, for any other reason, including, without limitation, that
such non-delivered document or instrument has been lost, the delivery
requirements of this Agreement shall be deemed to have been satisfied as to such
non-delivered document or instrument and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File, provided
that a photocopy of such non-delivered document or instrument (with evidence of
recording thereon and certified, in the case of a Mortgage, by the appropriate
county recorder's office to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Purchaser, the Trustee or a
Custodian appointed thereby on or before the Closing Date together with an
affidavit certifying that the original thereof has been lost or destroyed. With
respect to any Mortgage Loan, and notwithstanding the foregoing, the Seller may
deliver a UCC-3 on or before the Closing Date that does not contain the filing
information for the related UCC-1 and/or UCC-2 if such UCC-1 and/or UCC-2 has
not been returned to the Seller by the applicable filing office, and the Seller
may deliver assignments of documents and/or instruments that do not contain the
recording information for the related documents and/or instruments, as
applicable, if such documents and/or instruments have not been returned to the
Seller by the applicable recording office. The Seller hereby authorizes the
Purchaser, acting in its stead and on its behalf, to fill in any missing filing
or recording information or any instrument or document required to be delivered
pursuant to this subsection (b). The delivery of an original pro forma or
specimen title insurance policy or an original marked, redated and recertified
commitment to issue a policy of lender's title insurance in lieu of the delivery
of the actual policy of lender's title insurance shall not be considered a
Document Defect with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf no later than
the 90th day following the Closing Date (or such later date provided that the
reason for the delay in delivery of the title policy to the Trustee or Custodian
is either (i) because of a delay caused by the public recording or filing office
where the Mortgage has been delivered for recording or filing in returning a
filed copy of the Mortgage or (ii) due to the failure of the title company to
forward such title policy in a timely manner).
If the Seller cannot deliver, or cause to be delivered, on or
before the Closing Date, as to any Mortgage Loan, any of the documents and/or
instruments required to be delivered as part of the Mortgage File for such
Mortgage Loan, with evidence of recording or filing thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, and the Seller has
satisfied its delivery requirements as to such non-delivered document or
instrument by delivering a
7
<PAGE> 473
photocopy thereof (without evidence of recording or filing, but certified by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing), then:
(i) the Purchaser will, on or about the 115th day following
the Closing Date and approximately every 90 days thereafter until it or
its designee receives the original or a photocopy of the subject
document or instrument reflecting evidence of recordation or filing,
prepare and forward or cause to be prepared and forwarded to the Seller
a certification, to be signed and returned by the Seller, to the effect
that the Seller is in good faith attempting to obtain from the
appropriate public recording or filing office such original or
photocopy; and
(ii) the Seller agrees to execute and return to the Purchaser
or its designee each such certification within 15 days following its
receipt thereof.
In addition, unless previously delivered by the Seller to the
Purchaser or its designee, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, the following items, on or before the Closing Date (or, if any of
the following items are not in the actual possession of the Seller as soon as
reasonably or practical, but in any event within 30 days, after Closing Date):
(i) copies of the Mortgage Files for the respective Mortgage Loans; (ii)
originals or copies of all financial statements, appraisals, environmental/
engineering reports, leases, rent rolls and tenant estoppels in the possession
or under the control of the Seller that relate to the Mortgage Loans and, to the
extent they are not required to be a part of a Mortgage File in accordance with
the definition thereof, originals or copies of all documents, certificates and
opinions in the possession or under the control of the Seller that were
delivered by or on behalf of the related Borrowers in connection with the
origination of the Mortgage Loans; and (iii) all unapplied reserve funds and
escrow payments in the possession or under the control of the Seller that relate
to the Mortgage Loans, other than those that are to be retained by a
sub-servicer or primary servicer that will continue to act on behalf of the
Purchaser. Unless the Purchaser notifies the Seller in writing to the contrary,
the designated recipient of the items described in clauses (i) - (iii) of the
preceding sentence shall be the Master Servicer.
The Seller shall also provide to the Purchaser or its designee
the initial data on the Mortgage Loans (as of the Closing Date or the most
recent earlier date for which such date is available) contemplated by the Loan
Set-up File, the Loan Periodic Update File, the Operating Statement Analysis
Report and the Property File.
(d) The Seller shall be responsible for: (i) all reasonable
costs and expenses associated with recording and/or filing any and all
assignments and other instruments of transfer to the Purchaser with respect to
the Mortgage Loans that are required to be recorded or filed, as the case may
be, under the Pooling and Servicing Agreement (provided that the Seller shall
not be responsible for actually recording or filing any such assignments or
other instruments of transfer); and (ii) all other reasonable out-of-pocket
costs and expenses incurred by the Trustee or a Custodian pursuant to Section
2.01(e) of the Pooling and Servicing Agreement. In connection with the
endorsement of any Mortgage Note and the delivery of any assignment from the
Seller hereby authorizes the Purchaser or its designee to complete each
endorsement or assignment in blank appearing thereon in favor of the Purchaser
in such manner as the Purchaser
8
<PAGE> 474
shall determine the exercise of its sole discretion, provided that such
endorsement will be without recourse, representation or warranty of the Seller
except as expressly set forth in this Agreement. 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, the Purchaser or an assignee thereof, which
may include the Trustee or its Custodian or its agent, shall notify the Seller
of same. The Seller shall cure such defect within 90 days following such notice
or the Purchaser may prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter the Purchaser shall upon
receipt thereof cause the same to be duly recorded or filed, as appropriate, all
at the Seller's expense. The Purchaser may (and, at the Purchaser's request, the
Seller shall) execute any replacement assignment or instrument of transfer,
being filed in substitution for any such lost or returned unrecorded or unfiled
assignment or instrument of transfer, at the Seller's expense, and the Seller
shall assist the Purchaser or its designee or agent in recording or filing such
documents or instruments. Notwithstanding the foregoing, there shall be no
requirement to record any assignment to the Trustee or to file any UCC-3 in
those jurisdictions where, in the written opinion of the local counsel to
Purchaser or Trustee or such other evidence as is acceptable to the Trustee or
its designee such recordation and/or filing is not required to protect the
Purchaser's interest in the Mortgage Loans against sale, further assignment,
satisfaction or discharge by the Seller, and the reasonable costs of such
opinion and/or other evidence shall be borne by the Seller. The Seller shall
provide the Purchaser or its designee with a power of attorney to enable it or
them to record any loan documents that the Purchaser has been unable to record.
(e) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, 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 to reflect such transfer as a sale (as
opposed to a secured loan).
(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.
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. 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
9
<PAGE> 475
or at law for a breach of the Seller's representations and warranties made
pursuant to Section 4 except as such remedies are otherwise limited by the terms
of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes, as of the Closing Date, to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of
such other date specifically provided in the particular representation or
warranty) to and for the benefit of the Purchaser, each of the representations
and warranties set forth in Exhibit C.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 4 shall survive delivery of the respective
Mortgage Files to the Purchaser or its designee and shall inure to the benefit
of the Purchaser for so long as any of the Mortgage Loans and/or the Loan REMIC
Interests remains outstanding, notwithstanding any restrictive or qualified
endorsement or assignment.
SECTION 4A. Representations, Warranties and Covenants of Purchaser.
The Purchaser hereby represents and warrants, as of the Closing Date,
that:
(d) The Purchaser is a duly formed corporation, validly
existing and in good standing under the laws of the State of Delaware.
(e) 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.
(f) 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.
(g) 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.
(h) 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
10
<PAGE> 476
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.
(i) 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.
(j) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency or body
is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations and
orders that previously have been obtained and those filings and registrations
that previously have been completed.
SECTION 5. Notice of Breach; Cure, Repurchase and
Substitution.
(a) Within 90 days of the earlier of discovery or receipt of
notice by the Seller that there has been a Material Breach or a Material
Document Defect, the Seller shall, subject to subsection (b) below, (i) cure
such Material Breach or Material Document Defect, as the case may be, in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price provided for in the
Pooling and Servicing Agreement, to be deposited or delivered in accordance with
the directions of the Purchaser; provided that if (i) any such Material Breach
or Material Document Defect, as the case may be, does not relate to whether the
Defective Mortgage Loan was, as of the Closing Date, a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (a "Qualified Mortgage"),
(ii) such Material Breach or Material Document Defect, as the case may be, is
capable of being cured but not within such 90-day period, (iii) the Seller has
commenced and is diligently proceeding with the cure of such Material Breach or
Material Document Defect, as the case may be, within such 90-day period, and
(iv) the Seller shall have delivered to the Purchaser a certification executed
on behalf of the Seller by an officer thereof setting forth the reason that such
Material Breach or Material Document Defect, as the case may be, is not capable
of being cured within the initial 90-day period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be cured within an additional period not to exceed 90 more days,
then the Seller shall have up to an additional 90 days to complete such cure or,
failing such, to repurchase the Defective Mortgage Loan. Any such repurchase of
a Defective Mortgage Loan shall be on a whole loan, servicing released basis
(subject to any right of a Designated Sub-Servicer to continue to sub-service
such Defective Mortgage Loan as set forth in the related Designated Sub-Servicer
Agreement). The Seller shall have no obligation to monitor the Mortgage Loans
regarding the existence of a Material Breach or a Material Document Defect, but
if the Seller has actual knowledge of a Material Breach or Material Document
Defect with respect to a Mortgage Loan, it will notify the Purchaser.
If a Breach or Document Defect exists with respect to any
Mortgage Loan constituting part of a Cross-Collateralized Group, then the
determination as to whether such
11
<PAGE> 477
Breach or Document Defect, as the case may be, is a Material Breach or a
Material Document Defect, as applicable, shall be made as follows:
(i) if such Mortgage Loan has become a Specially Serviced
Mortgage Loan by reason of such Breach or Document Defect, then based
solely upon such Mortgage Loan and the Mortgaged Property identified on
the Mortgage Loan Schedule as corresponding thereto, without regard to
the cross-collateralization; and
(ii) otherwise, treating such Cross-Collateralized Group as a
single Mortgage Loan secured by all of the related Mortgaged
Properties.
For purposes of applying the remedies contemplated by this Section 5(a) in
connection with any Material Breach or Material Document Defect in respect of
any Cross-Collateralized Group or any particular Cross-Collateralized Mortgage
Loan that is part of such Cross-Collateralized Group, such Cross-Collateralized
Group shall be treated as a single Mortgage Loan.
If any Defective Mortgage Loan is to be repurchased as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and shall forward
such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller
set forth in this Section 5(a) to cure a Material Breach or a Material Document
Defect or repurchase the related Defective Mortgage Loan(s), constitute the sole
remedies available to the Purchaser with respect to a Breach or Document Defect.
The Seller hereby acknowledges the assignment by the Purchaser
to the Trustee, as trustee under the Pooling and Servicing Agreement, for the
benefit of the Certificateholders, of the representations and warranties
contained herein and of the obligations of the Seller to cure Material
Breaches/Material Document Defects or repurchase Defective Mortgage Loans
pursuant to this Section 5(a). In addition, the Seller hereby acknowledges and
agrees that, pursuant to Section 2.03(d) of the Pooling and Servicing Agreement,
the Master Servicer and the Special Servicer (in the case of Specially Serviced
Mortgage Loans) have the right, for the benefit of the Certificateholders, to
enforce the obligations of the Seller under this Agreement. If the Seller is
required to repurchase a Defective Mortgage Loan, the reasonable out-of-pocket
costs and expenses, including reasonable attorneys' fees and disbursements,
incurred by the Purchaser, the Trustee, the Custodian, the Master Servicer and
the Special Servicer as a result of such repurchase shall be part of the
purchase price.
(b) It shall be a condition to any repurchase of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that (i) the Trustee as
assignee of the Purchaser shall have executed and delivered such instruments of
transfer or assignment then presented to it by the Seller, in each case without
recourse, as shall be necessary to vest in the Seller the legal and beneficial
ownership of such Defective Mortgage Loan (including any property acquired in
respect thereof or proceeds of any insurance policy with respect thereto), to
the extent that such ownership interest was transferred to the Purchaser
hereunder and (ii) the Purchaser or its assignee shall release or cause the
release to the Seller or its designee of the Mortgage File, any Additional
Collateral, all insurance policies and proceeds thereunder, the Servicing File
and any
12
<PAGE> 478
Escrow Payments and/or Reserve Funds held by or on behalf of the Purchaser (or
its assignee) with respect to such Mortgage Loan.
(c) Promptly upon the receipt of notice from Master Servicer
that the Borrower under either of the Mortgage Loans secured by the Mortgaged
Properties identified on the Mortgage Loan Schedule as Hampton Inn-Columbus and
Comfort Suites Hotel, respectively, intends to defease the related Mortgage Loan
prior to the second anniversary of the initial issuance of the Certificates, the
Seller shall repurchase such Mortgage Loan at the related Purchase Price in
accordance with the reasonable directions of the Master Servicer.
SECTION 6. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Sidley & Austin, 875 Third Avenue, New York, New
York 10022 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
made pursuant to Section 4 of this Agreement shall be true and correct
in all material respects as of the Closing Date or such other date as
specified in Exhibit C;
(b) 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;
(c) 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;
(d) All other terms and conditions of this Agreement required
to be complied with by the Seller and the Purchaser, including, without
limitation, in the case of the Purchaser, payment of the purchase
price, on or before the Closing Date shall have been complied with, and
the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees, costs and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement;
and
(f) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
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<PAGE> 479
SECTION 7. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the
Purchaser and the Seller;
(b) The Indemnification Agreement duly executed and delivered
by the Seller, the Purchaser and each of Salomon, PaineWebber, Chase and Artesia
BC;
(c) The Pooling and Servicing Agreement duly executed and
delivered by SBMS VII, the Master Servicer, the Special Servicer and the
Trustee;
(d) An Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and upon
which the Purchaser, Salomon, PaineWebber, Chase, Artesia BC, the Other Loan
Sellers 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
(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
10 days prior to the Closing Date;
(f) A certificate of the Seller substantially in the form of
Exhibit D-2 hereto, executed by an executive officer or authorized signatory of
the Seller and dated the Closing Date, and upon which the Interested Parties may
rely;
(g) Resolutions of the Seller authorizing the transactions
contemplated by this Agreement, which resolutions will be in full force and
effect, and will not have been rescinded, as of the Closing Date;
(h) A written opinion of counsel for the Seller, which may be
delivered by in-house counsel, substantially in the form of Exhibit D-3A hereto
(with any modifications required by any Rating Agency, and subject to such
reasonable assumptions, qualifications and limitations as may be requested by
counsel for the Seller and acceptable to counsel for the Purchaser), dated the
Closing Date and addressed to SBMS VII, each of the other parties to the Pooling
and Servicing Agreement, Salomon, PaineWebber, Chase, Artesia BC and each Rating
Agency; a written opinion of Sidley & Austin as special counsel for the Seller,
substantially in the form of Exhibit D-3B hereto (with any modifications
required by any Rating Agency, and subject to such reasonable assumptions,
qualifications and limitations as may be requested by counsel for the Seller and
acceptable to counsel for the Purchaser), dated the Closing Date and addressed
to SBMS VII, each of the other parties to the Pooling and Servicing Agreement,
Salomon, PaineWebber, Chase, Artesia BC and each Rating Agency; and such other
written opinions as may be required by a 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);
14
<PAGE> 480
(i) 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 Internal Revenue Code of 1986 (the "Code") is properly
made, such Loan REMIC will qualify for treatment as a REMIC for federal income
tax purposes;
(j) One or more accountants' comfort letters relating to the
information regarding the Mortgage Loans contained in the Prospectus and
Memorandum that is of a statistical nature; and
(k) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
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 May 30,
2000 (the "Term Sheet").
SECTION 9. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to the Purchaser at 388 Greenwich Street, New
York, New York 10013, attention: Angela Hutzel, facsimile no. 212-816-8306, 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 388 Greenwich Street, 11th Floor, New York, New York 10013, attention:
Angela Hutzel, facsimile no.: (212) 816-8307, or to such other address or
facsimile number as may hereafter be furnished to the Purchaser in writing by
the Seller.
SECTION 10. Characterization.
The parties hereto agree that it is their express intent that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans and the Loan REMIC Interests. The parties hereto
further agree that it is not their intention that such conveyance be deemed 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's 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,
15
<PAGE> 481
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 pursuant to Section 9-305 of the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction; and
(e) notifications to, and acknowledgments, receipts or confirmations from,
persons or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions 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.
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.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
16
<PAGE> 482
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans and the Loan REMIC Interests to the Trust as contemplated by the
recitals hereto, SBMS VII is expressly authorized to assign it rights and
obligations under this Agreement, in whole or in part, to the Trustee for the
benefit of the registered holders and beneficial owners of the Certificates. To
the extent of any such assignment, the Trustee (including acting through the
Master Servicer and Special Servicer pursuant to the terms of the Pooling and
Servicing Agreement), for the benefit of the registered holders and beneficial
owners of the Certificates, shall be the Purchaser hereunder. In connection with
the transfer of any Mortgage Loan by the Trust as contemplated by the terms of
the Pooling and Servicing Agreement, the Trustee, for the benefit of the
registered holders and beneficial owners of the Certificates, is expressly
authorized to assign its rights and obligations under this Agreement, in whole
or in part, to the transferee of such Mortgage Loan. To the extent of any such
assignment, such transferee shall be the Purchaser hereunder (but solely with
respect to such Mortgage Loan that was transferred to it). Subject to the
foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 17. Amendments.
(a) No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced.
(b) Notwithstanding any contrary provision of this Agreement
or the Pooling and Servicing Agreement, no amendment of the Pooling and
Servicing Agreement executed after the Closing Date that increases the
obligations of or otherwise adversely affects, the Seller, shall be effective
against the Seller.
SECTION 18. Entire Agreement.
17
<PAGE> 483
Except as otherwise expressly contemplated hereby, this
Agreement constitutes the entire agreement and understanding of the parties with
respect to the matters addressed herein, and this Agreement supersedes any prior
agreements and/or understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
18
<PAGE> 484
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:
<PAGE> 485
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached Schedule]
A-1
<PAGE> 486
Schedule of SBRC Mortgage Loans
<TABLE>
<CAPTION>
Control Loan Mortgage Loan / Property City State Zip Original Mortgage
Number Number Loan Property Name Address Code Balance Rate
Seller
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 6603043 SBRC Northpointe 9604-10220 Spokane WA 99218 31,700,000 7.8000%
Plaza North
Newport
Highway
6 6603071 SBRC Western Plaza State Road Mayaguez PR 00680 19,200,000 8.1700%
II Shopping No. 2,
Center Kilometer
149.5
7 6602507 SBRC Metatec 7001 Metatec Dublin OH 43017 19,000,000 8.2000%
Building Boulevard
8 6605032 SBRC Red Lion 9898 Philadelphia PA 19115 17,000,000 8.8600%
Shopping Roosevelt
Center Boulevard
20 6603488 SBRC Fountain Oaks 3603-3697 Tampa FL 33614 11,500,000 8.0600%
West Waters
Avenue
21 6603311 SBRC Park Central 6551-6601 Boca Raton FL 33487 11,150,000 8.0300%
Office Park Of
Development Commerce
Boulevard
22 6604217 SBRC McCormick 8125 North Scottsdale AZ 85258 10,512,000 8.4400%
Place Office Hayden Road
Park
23 6604332 SBRC One Michigan 120 North Lansing MI 48933 9,850,000 8.2300%
Avenue Washington
Square
25 6603150 SBRC St. Joseph 2000 Houston TX 77002 8,500,000 8.2500%
Professional Crawford
Building Street
26 6603774 SBRC Penns Plaza 2 Penns Way New Castle DE 19720 8,172,000 8.3800%
Hundred
27 6603051 SBRC Airport Plaza 1754 San Jose CA 95110 8,100,000 7.8500%
Office Center Technology
- Phase 1 Drive
29 6602253 SBRC Hampton Inn - 4280 Columbus OH 43219 6,000,000 7.2600%
Columbus International
Gateway
30 7000000 SBRC Comfort 4270 Sawyer Columbus OH 43219 2,080,000 7.2600%
Suites Hotel Road
31 6604495 SBRC Raintree 15300 North Scottsdale AZ 85260 7,300,000 8.5300%
Corporate 90th Street
Center -
Phase I
32 6604157 SBRC For Eyes Optical
Portfolio 6,950,000 8.9300%
32A 6604157A SBRC For Eyes 285 West Hialeah FL 33014
Optical - 74th Place
Hialeah
32B 6604157B SBRC For Eyes 7535 West Hialeah FL 33014
Optical - 4th Avenue
Hialeah 2
32C 6604157C SBRC For Eyes 1630 Walnut Philadelphia PA 19103
Optical - Street
Philadelphia 2
32D 6604157D SBRC For Eyes 5251 North Lauderhill FL 33351
Optical - University
Lauderhill Drive
32E 6604157E SBRC For Eyes 3405 US Casselberry FL 32707
Optical - Highway
Casselberry 17-92 South
32F 6604157F SBRC For Eyes 3542-3544 Miami FL 33145
Optical - Coral Way
Coral Gables
32G 6604157G SBRC For Eyes 8107-8111 Richmond VA 23235
Optical - Midlothian
Richmond Turnpike
32H 6604157H SBRC For Eyes 1213 Rosemont PA 19010
Optical - Lancaster
Rosemont Avenue
32I 6604157I SBRC For Eyes 2144 South Philadelphia PA 19145
Optical - Broad Street
Philadelphia
36 6603019 SBRC 2265 Ralph 2265 Ralph Brooklyn NY 11234 6,375,000 7.7500%
Avenue Avenue
44 6603305 SBRC Brookwood 2140 Atlanta GA 30309 5,700,000 8.1600%
Square Peachtree
Shopping Road
Center
47 6604369 SBRC Sorrento Glen 11189 & San Diego CA 92121 5,425,000 8.4100%
11199
</TABLE>
<TABLE>
<CAPTION>
Control Loan Note Cut-off Monthly Original Remaining Scheduled Stated
Number Number Date Date Debt Term to Term to Maturity Original
Balance Service Maturity / Maturity / Date Amortization
Payment ARD (months) ARD (months) Term
(months)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 6603043 08/13/99 31,483,555 228,198.95 120 109 09/01/29 360
6 6603071 06/15/99 19,063,254 143,164.79 120 107 07/01/29 360
7 6602507 07/28/99 18,874,391 142,073.35 120 108 08/01/09 360
8 6605032 02/08/00 16,949,946 135,076.86 120 114 02/01/10 360
20 6603488 08/30/99 11,426,513 84,864.43 120 109 09/01/09 360
21 6603311 08/23/99 11,078,196 82,048.06 120 109 09/01/09 360
22 6604217 03/02/00 10,490,896 80,381.61 120 116 04/01/10 360
23 6604332 12/28/99 9,811,784 73,861.31 120 113 01/01/10 360
25 6603150 08/06/99 8,448,309 63,857.66 120 109 09/01/09 360
26 6603774 12/03/99 8,141,517 62,141.95 120 113 01/01/10 360
27 6603051 07/15/99 8,041,261 58,590.13 120 108 08/01/09 360
29 6602253 09/04/98 5,795,196 45,570.91 240 218 10/01/18 264
30 7000000 09/04/98 2,009,001 15,797.92 240 218 10/01/18 264
31 6604495 01/07/00 7,276,618 56,285.96 120 114 02/01/10 360
32 6604157 02/29/00 6,935,696 55,571.58 120 115 03/01/10 360
32A 6604157A
32B 6604157B
32C 6604157C
32D 6604157D
32E 6604157E
32F 6604157F
32G 6604157G
32H 6604157H
32I 6604157I
36 6603019 05/07/99 6,319,280 45,671.28 120 106 06/01/09 360
44 6603305 07/28/99 5,635,265 44,599.38 120 108 08/01/09 300
47 6604369 03/20/00 5,414,017 41,368.02 120 116 04/01/10 360
</TABLE>
<TABLE>
<CAPTION>
Control Loan Calculated Calculated Loan Cross Anticipated Defease Defease
Number Number Original Remaining Balance at Collateralized Repayment Start Date End Date
Amortization Amortization Maturity/ARD (Mortgage Loan Date
Term Term Group)
(months) (months)
<S> <C> <C> <C> <C> <C> <C> <C>
1 6603043 360 349 28,217,084 No 09/01/09 09/01/02 07/31/09
6 6603071 360 347 17,248,976 No 07/01/09 09/01/02 04/30/09
7 6602507 360 348 17,078,006 No NAP 09/01/02 05/31/09
8 6605032 360 354 15,501,558 No NAP NAP NAP
20 6603488 360 349 10,300,660 No NAP 09/01/02 06/30/09
21 6603311 360 349 9,980,047 No NAP 09/01/02 06/30/09
22 6604217 360 356 9,497,275 No NAP 09/01/02 01/31/10
23 6604332 360 353 8,857,314 No NAP 09/01/02 09/30/09
25 6603150 360 349 7,647,567 No NAP 09/01/02 04/30/09
26 6603774 360 353 7,373,916 No NAP 09/01/02 09/30/09
27 6603051 360 348 7,220,108 No NAP 09/01/02 05/31/09
29 6602253 264 242 1,239,045 Yes (c) NAP 10/01/01 06/30/18
30 7000000 264 242 429,533 Yes (c) NAP 10/01/01 06/30/18
31 6604495 360 354 6,608,151 No NAP 09/01/02 11/30/09
32 6604157 360 355 6,349,276 No NAP 09/01/02 11/30/09
32A 6604157A
32B 6604157B
32C 6604157C
32D 6604157D
32E 6604157E
32F 6604157F
32G 6604157G
32H 6604157H
32I 6604157I
36 6603019 360 346 5,668,830 No NAP 09/01/02 02/28/09
44 6603305 300 288 4,721,444 No NAP 09/01/02 04/30/09
47 6604369 360 356 4,897,973 No NAP 09/01/02 01/31/10
</TABLE>
<TABLE>
<CAPTION>
Control Loan Ownership Interest Master Yield
Number Number Interest Accrual Servicing Maintenance
Method Fee Rate Calculation
Method
<S> <C> <C> <C> <C> <C>
1 6603043 Fee Simple Actual/360 0.0600% NAP
6 6603071 Fee Simple Actual/360 0.0500% NAP
7 6602507 Fee Simple Actual/360 0.0600% NAP
8 6605032 Fee Simple Actual/360 0.0500% Present Value
Type 1
20 6603488 Fee Simple Actual/360 0.0950% NAP
21 6603311 Fee Simple Actual/360 0.0900% NAP
22 6604217 Fee Simple Actual/360 0.0500% NAP
23 6604332 Fee Simple Actual/360 0.0500% NAP
25 6603150 Fee Simple Actual/360 0.1100% NAP
26 6603774 Fee Simple Actual/360 0.0500% NAP
27 6603051 Fee Simple Actual/360 0.1100% NAP
29 6602253 Leasehold Actual/360 0.0500% NAP
30 7000000 Leasehold Actual/360 0.0500% NAP
31 6604495 Fee Simple Actual/360 0.1100% NAP
32 6604157 Fee Simple Actual/360 0.1450% NAP
32A 6604157A Fee Simple
32B 6604157B Fee Simple
32C 6604157C Fee Simple
32D 6604157D Fee Simple
32E 6604157E Fee Simple
32F 6604157F Fee Simple
32G 6604157G Fee Simple
32H 6604157H Fee Simple
32I 6604157I Fee Simple
36 6603019 Fee Simple Actual/360 0.0500% NAP
44 6603305 Fee Simple Actual/360 0.0500% NAP
47 6604369 Fee Simple Actual/360 0.0900% NAP
</TABLE>
A-1
<PAGE> 487
Schedule of SBRC Mortgage Loans
<TABLE>
<CAPTION>
Control Loan Mortgage Loan / Property City State Zip Original Mortgage
Number Number Loan Seller Property Name Address Code Balance Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Sorrento
Valley Road
48 6603691 SBRC Melrose Plaza 7500-7516 Los Angeles CA 90046 8.0300%
Melrose 5,350,000
Avenue
50 6603952 SBRC Gates Park 150 Peyton Atlanta GA 30311 8.2800%
Crossing Place, S.W. 5,250,000
Apartments
54 6603153 SBRC Fairgrounds 2525 Flosden American CA 94589 7.6000%
Mobile Estates Road Canyon 5,080,000
56 6604346 SBRC The Market at 4500 Summer Memphis TN 38112 8.4700%
Summer Oaks Avenue 5,000,000
57 6603590 SBRC Cambridge 12945 South Houston TX 77045 8.0200%
Village Post Oak Road 4,965,000
Apartments
59 6603771 SBRC Princess Anne 2052-2076 Virginia VA 23456 8.3400%
Marketplace South Beach 4,400,000
Independence
Boulevard
60 6603263 SBRC Pinon Trails 1501 El Paso TX 79935 7.9400%
Apartments Lomaland 4,300,000
Drive
62 6604264 SBRC 500 South 500 South Syracuse NY 13202 8.4400%
Salina Street Salina Street 4,200,000
63 6603487 SBRC Kerman 15040 West Kerman CA 93630 8.2000%
Shopping Whitesbridge 4,150,000
Center Avenue
67 6603452 SBRC Beverly 7122 Beverly Los Angeles CA 90036 8.6500%
Westside Boulevard 3,725,000
68 6603174 SBRC Balboa Palms 8441 Balboa Northridge CA 91325 7.8300%
Apartments Boulevard 2,000,000
69 6603178 SBRC Tarzana Palms 5725 Reseda Los Angeles CA 91356 7.8300%
Apartments Boulevard 1,680,000
71 6603021 SBRC 1445 1445 Elmont NY 11003 7.7500%
Hempstead Hempstead 3,650,000
Turnpike Turnpike
73 6602817 SBRC Campbell Hill 308-330 Bowling OH 43402 8.4300%
Apartments Campbell Green 3,570,000
Hill Road
75 6603419 SBRC Lamar 3945-4045 Paris TX 75462 8.5100%
Crossing Lamar Street 3,330,000
Shopping
Center
79 6603491 SBRC Vacaville 741-791 East Vacaville CA 95688 8.0400%
Town Center Monte Vista 3,185,000
Avenue
83 6603938 SBRC 411-423 East 411-423 East New York NY 10029 8.9800%
114th Street 114th Street 3,000,000
87 6603175 SBRC Independence 7255 Canoga Park CA 91303 7.8300%
Court Independence 2,800,000
Apartments Avenue
88 6603020 SBRC 5601 Merrick 5601 Merrick Massapequa NY 11758 8.2500%
Road Road 2,718,000
89 6603887 SBRC Pinnacle 2242 & 2272 Twinsburg OH 44087 8.3800%
Warehouse Pinnacle 2,696,000
Parkway
90 6603769 SBRC 300 Wildwood 300 Wildwood Woburn MA 01810 8.1000%
Avenue Avenue 2,700,000
95 6603246 SBRC Spartacus 4401 Huntsville AL 35805 7.4900%
Apartments Spartacus 2,640,000
Drive
96 6604046 SBRC Storage Depot 276 Mt. Scotts CA 95066 8.8700%
I Hermon Road Valley 2,612,000
97 6603225 SBRC Village Place 7701-7739 Houston TX 77071 2,596,528 8.1500%
Shopping West (@)
Center Bellfort
Avenue
99 6602382 SBRC Tivoli Square 1820 Whitley Los Angeles CA 90028 8.1000%
Apartments Avenue 2,535,000
101 6604473 SBRC McBee 1 Merritt Greenville SC 29601 8.4900%
Apartments Circle 2,500,000
102 6603238 SBRC Golden Sands 15930 Victorville CA 92392 7.4200%
Apartments Nisqualli 2,500,000
Road
107 6603149 SBRC Boardwalk at 304 - 321 Quincy MA 02171 8.4400%
Marina Bay Victory Road 2,334,500
115 6603511 SBRC Crosstown 950 Peachtree GA 30269 8.4300%
Self Storage Crosstown City 2,000,000
Drive
</TABLE>
<TABLE>
<CAPTION>
Control Loan Note Cut-off Monthly Original Remaining Scheduled Stated
Number Number Date Date Debt Term to Term to Maturity Original
Balance Service Maturity / Maturity / Date Amortization
Payment ARD (months) ARD (months) Term
(months)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
48 6603691 10/04/99 5,321,889 39,368.35 120 111 11/01/09 360
50 6603952 10/14/99 5,224,150 39,552.28 120 111 11/01/09 360
54 6603153 05/25/99 5,033,877 35,868.60 120 106 06/01/09 360
56 6604346 02/25/00 4,988,120 38,339.42 120 115 03/01/10 360
57 6603590 09/10/99 4,936,494 36,500.66 120 110 10/01/09 360
59 6603771 10/19/99 4,378,676 33,334.53 120 111 11/01/09 360
60 6603263 08/25/99 4,271,663 31,372.21 120 109 09/01/09 360
62 6604264 03/29/00 4,191,568 32,115.94 120 116 04/01/10 360
63 6603487 09/10/99 4,127,294 31,031.81 120 110 10/01/09 360
67 6603452 09/14/99 3,707,014 29,038.95 120 110 10/01/09 360
68 6603174 12/09/99 1,991,407 14,438.97 120 113 01/01/10 360
69 6603178 12/09/99 1,672,782 12,128.74 120 113 01/01/10 360
71 6603021 05/07/99 3,618,098 26,149.05 120 106 06/01/09 360
73 6602817 10/27/99 3,553,108 27,273.30 120 111 11/01/09 360
75 6603419 11/03/99 3,316,711 25,628.42 120 112 12/01/09 360
79 6603491 08/17/99 3,164,542 23,459.28 120 109 09/01/09 360
83 6603938 01/21/00 2,991,439 24,095.52 120 114 02/01/10 360
87 6603175 12/09/99 2,787,969 20,214.56 120 113 01/01/10 360
88 6603020 08/05/99 2,701,471 20,419.43 120 109 09/01/09 360
89 6603887 12/15/99 2,685,943 20,501.06 120 113 01/01/10 360
90 6603769 09/29/99 2,684,825 20,000.19 120 110 10/01/09 360
95 6603246 06/01/99 2,617,493 18,441.19 120 107 07/01/09 360
96 6604046 12/14/99 2,596,919 21,687.75 120 113 01/01/10 300
97 6603225 05/21/99 2,579,991 19,353.44 117 106 06/01/09 357
99 6602382 08/02/99 2,520,752 18,777.95 120 110 10/01/09 360
101 6604473 02/28/00 2,494,096 19,205.12 120 115 03/01/10 360
102 6603238 05/14/99 2,476,260 17,343.62 120 106 06/01/09 360
107 6603149 08/05/99 2,311,282 18,703.73 120 109 09/01/09 300
115 6603511 07/30/99 1,978,457 16,010.31 120 108 08/01/09 300
</TABLE>
<TABLE>
<CAPTION>
Control Loan Calculated Calculated Loan Cross Anticipated Defease Defease
Number Number Original Remaining Balance at Collateralized Repayment Start Date End Date
Amortization Amortization Maturity/ARD (Mortgage Loan Date
Term Term Group)
(months) (months)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
48 6603691 360 351 4,788,443 No NAP 09/01/02 08/31/09
50 6603952 360 351 4,726,586 No NAP 09/01/02 08/31/09
54 6603153 360 346 4,500,543 No NAP 09/01/02 03/31/09
56 6604346 360 355 4,521,387 No NAP 09/01/02 12/31/09
57 6603590 360 350 4,443,632 No NAP 09/01/02 06/30/09
59 6603771 360 351 3,966,822 No NAP 09/01/02 08/31/09
60 6603263 360 349 3,840,538 No NAP 09/01/02 06/30/09
62 6604264 360 356 3,794,573 No NAP 09/01/02 01/31/10
63 6603487 360 350 3,730,043 No NAP 09/01/02 07/31/09
67 6603452 360 350 3,382,677 No NAP 09/01/02 08/31/09
68 6603174 360 353 1,781,422 Yes(e) NAP 09/01/02 10/31/09
69 6603178 360 353 1,496,394 Yes(e) NAP 09/01/02 10/31/09
71 6603021 360 346 3,245,683 No NAP 09/01/02 02/28/09
73 6602817 360 351 3,225,177 No NAP 09/01/02 08/31/09
75 6603419 360 352 3,014,332 No NAP 09/01/02 09/30/09
79 6603491 360 349 2,851,480 No NAP 09/01/02 06/30/09
83 6603938 360 354 2,742,669 No NAP 09/01/02 11/30/09
87 6603175 360 353 2,493,991 No NAP 09/01/02 10/31/09
88 6603020 360 349 2,445,421 No NAP 09/01/02 06/30/09
89 6603887 360 353 2,432,707 No NAP 09/01/02 09/30/09
90 6603769 360 350 2,421,072 No NAP 09/01/02 07/31/09
95 6603246 360 347 2,332,725 No NAP 09/01/02 04/30/09
96 6604046 300 293 2,205,776 No NAP 09/01/02 10/31/09
97 6603225 358 347 2,334,827 No NAP 06/01/03 03/31/09
99 6602382 360 350 2,273,119 No NAP 09/01/02 07/31/09
101 6604473 360 355 2,261,721 No NAP 09/01/02 12/31/09
102 6603238 360 346 2,204,819 No NAP 09/01/02 03/31/09
107 6603149 300 289 1,948,586 No NAP 09/01/02 05/31/09
115 6603511 300 288 1,669,310 No NAP 09/01/02 05/31/09
</TABLE>
<TABLE>
<CAPTION>
Control Loan Ownership Interest Master Yield
Number Number Interest Accrual Servicing Maintenance
Method Fee Rate Calculation
Method
<S> <C> <C> <C> <C> <C>
48 6603691 Fee Simple Actual/360 0.0500% NAP
50 6603952 Fee Simple Actual/360 0.1000% NAP
54 6603153 Fee Simple Actual/360 0.0500% NAP
56 6604346 Fee Simple Actual/360 0.0500% NAP
57 6603590 Fee Simple Actual/360 0.1100% NAP
59 6603771 Fee Simple Actual/360 0.0500% NAP
60 6603263 Fee Simple Actual/360 0.1100% NAP
62 6604264 Fee Simple Actual/360 0.0500% NAP
63 6603487 Fee Simple Actual/360 0.0500% NAP
67 6603452 Fee Simple Actual/360 0.0500% NAP
68 6603174 Fee Simple Actual/360 0.1100% NAP
69 6603178 Fee Simple Actual/360 0.1100% NAP
71 6603021 Fee Simple Actual/360 0.0500% NAP
73 6602817 Fee Simple Actual/360 0.1100% NAP
75 6603419 Fee Simple Actual/360 0.1000% NAP
79 6603491 Fee Simple Actual/360 0.1100% NAP
83 6603938 Fee Simple Actual/360 0.0500% NAP
87 6603175 Fee Simple Actual/360 0.1100% NAP
88 6603020 Fee Simple Actual/360 0.0500% NAP
89 6603887 Fee Simple Actual/360 0.0500% NAP
90 6603769 Fee Simple Actual/360 0.0500% NAP
95 6603246 Fee Simple Actual/360 0.1000% NAP
96 6604046 Leasehold Actual/360 0.0500% NAP
97 6603225 Fee Simple Actual/360 0.1100% NAP
99 6602382 Fee Simple Actual/360 0.0500% NAP
101 6604473 Fee Simple Actual/360 0.0500% NAP
102 6603238 Fee Simple Actual/360 0.0900% NAP
107 6603149 Fee Simple Actual/360 0.0500% NAP
115 6603511 Fee Simple Actual/360 0.1000% NAP
</TABLE>
A-2
<PAGE> 488
Schedule of SBRC Mortgage Loans
<TABLE>
<CAPTION>
Control Loan Mortgage Loan / Property City State Zip Original Mortgage
Number Number Loan Property Name Address Code Balance Rate
Seller
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
120 6602692 SBRC One One Peabody MA 01960 1,925,000 8.8500%
Centennial Centennial
Drive Drive
121 6602379 SBRC Diplomat 1837 Whitley Los Angeles CA 90028 1,910,000 8.2300%
Apartments Avenue
136 6602380 SBRC Monaco 1823 Grace Los Angeles CA 90028 1,550,000 8.1000%
Apartments Avenue
142 6603541 SBRC Bonhampton 15 & 25 Edison NJ 08837 1,500,000 7.7900%
Corners South Main
Street
176 6603177 SBRC Parthenia 15455 North Hills CA 91343 1,000,000 7.8300%
Garden Parthenia
Apartments Street
</TABLE>
<TABLE>
<CAPTION>
Control Loan Note Cut-off Monthly Original Remaining Scheduled Stated
Number Number Date Date Debt Term to Term to Maturity Original
Balance Service Maturity / Maturity / Date Amortization
Payment ARD (months) ARD (months) Term
(months)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
120 6602692 12/14/99 1,918,678 15,281.68 120 113 01/01/10 360
121 6602379 08/02/99 1,900,471 14,322.35 120 111 11/01/09 360
136 6602380 08/02/99 1,541,288 11,481.59 120 110 10/01/09 360
142 6603541 07/16/99 1,447,064 14,153.53 120 108 08/01/09 180
176 6603177 12/09/99 995,703 7,219.49 120 113 01/01/10 360
</TABLE>
<TABLE>
<CAPTION>
Control Loan Calculated Calculated Loan Cross Anticipated Defease Defease
Number Number Original Remaining Balance at Collateralized Repayment Start Date End Date
Amortization Amortization Maturity/ARD (Mortgage Loan Date
Term Term Group)
(months) (months)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
120 6602692 360 353 1,755,349 No NAP 09/01/02 09/30/09
121 6602379 360 351 1,717,581 No NAP 09/01/02 08/31/09
136 6602380 360 350 1,389,875 No NAP 09/01/02 07/31/09
142 6603541 180 168 722,638 No NAP 09/01/02 03/31/09
176 6603177 360 353 890,710 No NAP 09/01/02 10/31/09
</TABLE>
<TABLE>
<CAPTION>
Control Loan Ownership Interest Master Yield
Number Number Interest Accrual Servicing Maintenance
Method Fee Rate Calculation
Method
<S> <C> <C> <C> <C> <C>
120 6602692 Fee Simple Actual/360 0.0500% NAP
121 6602379 Fee Simple Actual/360 0.0500% NAP
136 6602380 Fee Simple Actual/360 0.0500% NAP
142 6603541 Fee Simple Actual/360 0.0500% NAP
176 6603177 Fee Simple Actual/360 0.1100% NAP
A-3
</TABLE>
<PAGE> 489
EXHIBIT B
The Seller hereby represents and warrants, as of the Closing Date,
that:
(a) The Seller is a duly formed corporation, validly existing
and in good standing under the laws of the State of New York.
(b) The Seller 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 Purchaser, 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.
(d) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this Agreement by
the Seller, will not violate the Seller's certificate of incorporation or
by-laws 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 Seller 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
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.
(f) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the Seller from
entering into this Agreement or, in the Seller's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of the
Seller 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 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.
B-1
<PAGE> 490
(h) The transfer of the Mortgage Loans and the Loan REMIC
Interests by the Seller to the Purchaser, as contemplated herein, is not subject
to any bulk transfer or similar law in effect in any applicable jurisdiction.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller are pending or contemplated.
B-2
<PAGE> 491
EXHIBIT C
The Seller hereby represents and warrants, as of the Closing Date (or
as of such other date specified in the particular representation and warranty)
with respect to each Mortgage Loan, subject to the exceptions attached hereto as
Schedule C-1, that:
(1) Immediately prior to the transfer thereof by Seller to the
Purchaser and the assignment thereof to the Trustee, Seller
had good and marketable title to, and was the sole owner and
holder of, such Mortgage Loan, free and clear of any and all
liens, charges, encumbrances or any other ownership,
participation or other interests on, in or to such Mortgage
Loan (other than, in certain cases, the right of the Master
Servicer or a Sub-Servicer to master service or primary
service such Mortgage Loan). Seller has validly and
effectively conveyed to the Purchaser all legal and beneficial
interest in and to such Mortgage Loan free and clear of any
pledge, lien or security interest.
(2) The Seller has no knowledge of any material default (or
any event, circumstance or condition that would under the
Mortgage Loan documents be considered a material default) by a
related Borrower resulting from the material representations
and warranties made by such Borrower in the related Mortgage
Loan documents being untrue at the time of origination of the
related Mortgage Loan. Seller had full right and authority to
sell, assign and transfer such Mortgage Loan to the Purchaser;
and each Mortgage Loan is properly endorsed as provided in the
Pooling and Servicing Agreement, and such endorsement is
genuine.
(3) The information pertaining to such Mortgage Loan set forth
in the Mortgage Loan Schedule was true and correct, and met
the requirements of this Agreement and the Pooling and
Servicing Agreement, in all material respects as of the
Cut-off Date.
(4) Such Mortgage Loan was not, as of the Cut-off Date or at
any time since origination, more than thirty (30) days
delinquent in respect of any Scheduled P&I Payment required
thereunder, without giving effect to any applicable grace
period.
(5) Each Mortgage securing such Mortgage Loan constitutes a
legal, valid and, subject to the exceptions in paragraph 12
below, enforceable first lien upon the Borrower's interest in
the related Mortgaged Property, including, without limitation,
all buildings located thereon and all fixtures attached
thereto, subject only to (and such Mortgaged Property is free
and clear of all encumbrances and liens having priority over
the lien of such
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<PAGE> 492
Mortgage, except for) (a) the lien of current real property
taxes and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and
other matters of public record specifically referred to in the
lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such
Mortgage Loan or approved after origination, which do not
materially and adversely affect the current use of the
Mortgaged Property, the security interest intended to be
provided by such Mortgage or the value of the Mortgaged
Property, (c) the rights of tenants (whether under ground
leases or space leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that
such tenants are performing under such leases), (d) exceptions
and exclusions specifically referred to in the lender's title
insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan, and
(e) if such Mortgage Loan is cross-collateralized with any
other Mortgage Loan, the lien of the Mortgage for such other
Mortgage Loan (the exceptions set forth in the foregoing
clauses (a), (b), (c), (d) and (e), collectively, "Permitted
Encumbrances"). Such Permitted Encumbrances do not materially
interfere with the security intended to be provided by the
related Mortgage(s), or materially and adversely affect the
current use or value of the related Mortgaged Property or the
current ability of such Mortgaged Property to generate Net
Operating Income sufficient to service the Mortgage Loan.
Except as contemplated by clause (e) of the second preceding
sentence, none of the Permitted Encumbrances are mortgage
liens that are senior to or pari passu with the lien of the
related Mortgage. With respect to personal property of the
related Borrower constituting part of the related Mortgaged
Property which is material to the value of the related real
estate constituting part of such Mortgaged Property, or which,
if no UCC financing statement were filed with respect to such
personal property, would result in a material impairment of
the security for the related Mortgage Loan (such personal
property is herein referred to as "Material Personal
Property"), (a) a UCC financing statement has been filed
and/or recorded in all places necessary to perfect a valid
security interest in the Material Personal Property; (b) an
assignment of such UCC financing statement has been executed
by the Seller in favor of the Trustee or in blank (which the
Trustee or its designated agent may complete and file in the
same filing office in which such UCC financing statement was
filed); and (c) any security agreement, chattel mortgage or
equivalent document related to and delivered in connection
with such Mortgage Loan establishes and creates a valid and,
subject to the exceptions in paragraph 12 below, enforceable
first lien and
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<PAGE> 493
first priority security interest in the property of the
related Borrower described therein, subject to any purchase
money security interest or any security interest to secure a
line of credit or similar financing attaching subsequent to
the date of origination of such Mortgage Loan and of which
Seller has no actual (as opposed to constructive) knowledge.
(6) The lien of each related Mortgage is insured by an
American Land Title Insurance ("ALTA") lender's title
insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized
title insurance company or its subsidiary, insuring the
originator of such Mortgage Loan, its successors and assigns
(as sole insured), as to the first priority lien of the
Mortgage in the original principal amount of such Mortgage
Loan after all advances of principal, subject only to
Permitted Encumbrances (or, if a title insurance policy has
not yet been issued in respect of any Mortgage Loan, a policy
meeting the foregoing description is evidenced by a commitment
for title insurance "marked-up" at the closing of such
Mortgage Loan). 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
Seller's knowledge as of the Closing Date, no material claims
have been made thereunder and no claims have been paid
thereunder (and Seller has not received notice of any material
claims having been made or paid thereunder). No holder of the
related Mortgage has done, by act or omission, anything that
would, and Seller has no actual knowledge of any other
circumstance that would, materially impair the coverage under
such title policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Purchaser, such
title policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of the
Purchaser without the consent of or notice to the insurer. To
Seller's knowledge, the insurance company that issued (or is
obligated to issue) such title policy is qualified to do
business in the jurisdiction in which the related Mortgaged
Property is located. Such policy contains no material
exclusion for or affirmatively insures (except for any
Mortgaged Property located in jurisdictions where such
affirmative insurance is not available) (a) access to a
physically open street, (b) encroachments of any part of the
buildings thereon over easements, (c) that the area shown on
the survey is the same as the property legally described in
the Mortgage, (d) that the Mortgaged Property constitutes one
or more separate tax parcels containing no other real
property, and (e) that, to the extent the Mortgaged Property
consists of more than one parcel used as a single tract of
real property (other than separate parcels with respect to
Mortgage Loans secured by more than one property), such
parcels are
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<PAGE> 494
contiguous. The Mortgage has been properly recorded on the
related Mortgaged Property and all applicable Mortgage
recording taxes have been paid.
(7) Neither Seller nor, to Seller's knowledge, any prior
holder of such Mortgage Loan has waived any material default,
breach, violation or event of acceleration existing under the
related Mortgage or Mortgage Note, except that certain
post-closing conditions or requirements that would either be
reasonably acceptable to a prudent commercial lender or that
would not otherwise materially and adversely affect the
security intended to be provided for such Mortgage Loan, may
not have yet been completed.
(8) As of the Closing Date there is no valid offset, defense,
counterclaim or right to rescission, including the defense of
usury, with respect to any of the Mortgage Note, Mortgage or
other agreements executed in connection therewith (except in
each case with respect to any excess interest on an ARD Loan
after the related Anticipated Repayment Date and any Default
Interest, late charges, Prepayment Premiums and Yield
Maintenance Charges).
(9) As of the Cut-off Date and as of the Closing Date, to
Seller's knowledge, there is no proceeding pending or
threatened for condemnation affecting all or a material
portion of the related Mortgaged Property. To the Seller's
knowledge based upon a site inspection conducted in connection
with the origination of the Mortgage Loan and a review of the
related engineering report, there is no unremedied damage at
the related Mortgaged Property that materially and adversely
affects the use, operation, or value of such Mortgaged
Property (except in such case where an escrow of funds or
letter of credit exists in an amount at least equal to 125% of
the amount estimated to be sufficient to effect the necessary
repairs and maintenance).
(10) At origination, such Mortgage Loan complied in all
material respects with all requirements of federal, state and
local laws (including, without limitation, laws pertaining to
usury) relating to the origination, funding and terms of such
Mortgage Loan or, to the best of Seller's knowledge, servicing
of such Mortgage Loan.
(11) The proceeds of such Mortgage Loan have been fully
disbursed, and there is no requirement for future advances
thereunder.
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<PAGE> 495
(12) The Mortgage and Mortgage Note for such Mortgage Loan and
all other documents to which the related Borrower is a party
and which evidence or secure such Mortgage Loan, are each the
legal, valid and binding obligations of the related Borrower
(subject to any non-recourse provisions and any applicable
state anti-deficiency legislation), enforceable in accordance
with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, redemption,
fraudulent conveyance, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally and
by general principles of equity, and except that certain
provisions of such Mortgage Loan documents are or may be
unenforceable in whole or in part under applicable state or
federal laws, but neither the application of any such laws to
any such provisions nor the inclusion of any such provisions
renders any of the Mortgage Loan documents invalid as a whole,
and such Mortgage Loan documents taken as a whole are
enforceable to the extent necessary and customary for the
practical realization of the rights and benefits afforded
thereby.
(13) The related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting
the requirements of such Mortgage Loan and having a
claims-paying or financial strength rating of at least A:VIII
from A.M. Best Company or "A" (or the equivalent) from Moody's
Investor Service, Inc., Standard & Poor's Rating Services, or
its equivalent, in an amount at least equal to the lesser of
the outstanding principal balance of such Mortgage Loan and
100% of the full replacement cost of the improvements located
on the related Mortgaged Property, on a full replacement cost
basis (or without deduction for depreciation)(excepting,
however, each Mortgaged Property which is a multifamily mobile
home park without material improvements), with (if applicable)
an appropriate endorsement to avoid the application of any
co-insurance provisions with respect to such Mortgaged
Property, and 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 an amount customarily required
by institutional lenders, and (except if such Mortgaged
Property is operated as a mobile home park) by business
interruption or rental loss insurance in an amount equal to
the gross rentals for at least a 12-month period (or an 18
month period for a Mortgaged Property which is not an office,
retail, self storage, industrial, multifamily mobile home park
or mixed use of the foregoing). An architectural or
engineering consultant has performed an analysis of each of
the Mortgaged Properties located in seismic zones 3 or 4 which
is listed on Schedule C-2 in order to evaluate the structural
and seismic condition of such property, for the sole purpose
of
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<PAGE> 496
assessing the probable maximum loss ("PML") for the property
in the event of an earthquake. In such instance the PML was
based on a return period of not less than 100 years, an
exposure period of 50 years and a 10% probability of
excedence. If the resulting report concluded the PML would
exceed 20% of the amount of the replacement costs of the
improvements, earthquake insurance on such Mortgaged Property
was obtained by an insurer rated at least A:VIII by A.M. Best
Company or "A" (or the equivalent) from Moody's Investor
Services, Inc., Standard & Poor's Rating Services or its
equivalent. In addition, no such insurance policy provides
that it may be canceled, endorsed, altered or reissued to
effect a change in coverage unless such insurer shall have
first given the mortgagee under such Mortgage Loan thirty (30)
days' prior written notice, and no notice has been received as
of the date hereof; all premiums required to be paid on such
policy have been paid; all such policies contain a standard
mortgagee clause for the benefit of the holder of the related
Mortgage Loan; and the related Mortgage obligates the related
Borrower to maintain all such insurance and, at the related
Borrower's failure to do so, authorizes the mortgagee under
such Mortgage Loan to purchase such insurance at the related
Borrower's cost and expense and to seek reimbursement from
such Borrower. Further, all insurance coverage required under
the related Mortgage is in full force and effect with respect
to the related Mortgaged Property, and if the related
Mortgaged Property is located in a federally designated
special flood hazard area, the related Borrower is required to
maintain flood insurance in respect thereof (exclusive of any
parking lot or unused or undeveloped portion thereof) to the
extent available under the National Flood Insurance Act of
1968. To Seller's knowledge, the insurer issuing each of the
foregoing insurance policies is qualified to write insurance
in the jurisdiction where the related Mortgaged Property is
located. Subject to clause (I) of paragraph 51 below with
respect to ground lease properties, any insurance proceeds in
respect of a casualty loss or taking, will be applied either
to (A) the repair or restoration of all or part of the related
Mortgaged Property or (B) to the payment of the outstanding
principal balance of such Mortgage Loan together with any
accrued interest thereon, except that in the case of a
ground-leased property casualty and condemnation proceeds are
required to be paid first to the owner of the fee interest in
the related property in accordance with terms of the related
ground lease and then in accordance with the related Mortgage.
(14) A "Phase I" environmental site assessment meeting ASTM
requirements (or an update of a previously conducted
assessment) was performed by a licensed third-party
professional experienced in environmental matters with respect
to the related Mortgaged
C-6
<PAGE> 497
Property within the 24-month period prior to the Closing Date,
and in the case of the Mortgage Loans identified on the
Schedule C-1, a "Phase II" environmental site assessment was
performed in connection with the origination of each such
loan. Either (x) the related environmental reports did not
reveal any known circumstances or conditions with respect to
the related Mortgaged Property that rendered such Mortgaged
Property, at the date(s) of such environmental report(s), in
material violation of any applicable environmental laws or (y)
if any such environmental report did 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 either (i) the
expenditure of funds necessary to effect such remediation is
not material in relation to the outstanding principal balance
of the related Mortgage Loan, or (ii) a sufficient escrow of
funds exists for purposes of effecting such remediation (and
the Borrower has covenanted in the Mortgage Loan documents to
perform such remediation), or (iii) 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 recommended by the environmental site assessment.
Seller has no knowledge of any environmental condition or
circumstance affecting such Mortgaged Property and not
disclosed in the related environmental report(s), which would
impact such Mortgaged Property's soil or groundwater quality
or require remediation by the related Borrower under, or
otherwise would be a material violation of, applicable
environmental law. All such environmental assessments that
were in the possession of the Seller and that relate to a
Mortgaged Property which is insured by an environmental
insurance policy have been delivered to or disclosed to the
environmental insurance carrier issuing such policy prior to
the issuance of such policy. The related Mortgage or other
loan documents contain covenants on the part of the related
Borrower requiring its compliance with applicable federal and
state environmental laws and regulations in respect of the
related Mortgaged Property. To Seller's actual knowledge, in
reliance on such environmental reports, each Mortgaged
Property is in material compliance with all applicable
federal, state and local laws pertaining to the environmental
hazards other than as disclosed in such environmental reports,
and to Seller's actual knowledge, Seller has received no
notice of violation of such laws issued by any governmental
agency or authority, which would cause the Mortgaged Property
not to be in compliance with all federal, state and local laws
pertaining to the environmental hazards. Each Borrower
represents and warrants in the related
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<PAGE> 498
Mortgage Loan documents that except as set forth in certain
environmental reports and to its knowledge there is not
located on the related Mortgaged Property and the Borrower
will not use, cause or permit to exist on the related
Mortgaged Property any hazardous materials in any manner which
violates federal, state or local laws, ordinances, regulations
or orders relating to the environment. 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,
penalties, fines, expenses and claims of any kind whatsoever
(including reasonable 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 the Borrower in connection
with such Mortgage Loan.
(15) Except as indicated on the Mortgage Loan Schedule, such
Mortgage Loan is not cross-collateralized with other Mortgage
Loans in the Mortgage Pool. Such Mortgage Loan is not
cross-collateralized with a mortgage loan outside the Mortgage
Pool. Each Mortgage securing a Cross-Collateralized Mortgage
Loan or other Mortgage Loan secured by more than one related
Mortgaged Property secures an amount no less than the
aggregate original loan balance of the related Mortgage Loan
combined with that of any other Mortgage Loans in the related
Cross-Collateralized Group, if any; provided, that in the case
of each Mortgage on a related Mortgaged Property located in
Florida or New York, the Mortgage secures an amount no less
than 150% of the allocated loan amount for such Mortgaged
Property.
(16) The terms of the Mortgage Note and Mortgage for such
Mortgage Loan have not been impaired, waived, altered or
modified in any material respect, except those that occurred
prior to the Cut-off Date by written instrument which is
specifically set forth in the related Mortgage File and which
is duly recorded to the extent required to perfect, maintain,
or continue the validity and priority of the Mortgage Loan
Documents. No Mortgage has been satisfied, canceled, rescinded
or subordinated, no material portion of the related Mortgaged
Property has been released, and no instrument has been
executed that would effect any such satisfaction,
cancellation, subordination, rescission or release.
(17) There are no delinquent insurance premiums (to the best
knowledge of Seller), or delinquent taxes, water charges,
sewer rents or other similar outstanding charges affecting the
related Mortgaged Property that are not otherwise covered by
an escrow of funds sufficient to pay such charges.
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<PAGE> 499
(18) The interest of the Borrower in the related Mortgaged
Property consists of a fee simple and/or, in the case of the
Mortgaged Properties identified on the Mortgage Loan Schedule
as Kenney Portfolio #2 and Storage Depot 1, leasehold estate
or interest in real property and the improvements thereon.
(19) Such Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
(20) The assignment of the related Mortgage to the Purchaser
has been duly authorized, executed and delivered by Seller, is
in a recordable form and constitutes the legal, valid, binding
and, subject to the exceptions in paragraph 12 above,
enforceable and full assignment of such Mortgage from the
relevant assignor to the Purchaser, and the assignment of the
related Assignment of Leases, if any, or of any other
agreement executed in connection with such Mortgage Loan to
the Purchaser constitutes the legal, valid, binding and,
subject to the exceptions in paragraph 12 above, enforceable
and full assignment thereof from the relevant assignor to the
Purchaser.
(21) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such 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 escrows and deposits are conveyed
hereunder to the Purchaser. Any and all requirements under
each Mortgage Loan as to completion of any material
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 the funds so escrowed have not been
released.
(22) As of the date of origination of such Mortgage Loan and
as of the Closing Date, the related Mortgaged Property was and
is free and clear of any mechanics' and materialmen's liens or
liens in the nature thereof which create a lien prior to that
created by the related Mortgage(s).
(23) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged
Property at the time of origination of such Mortgage Loan lies
outside the boundaries and building restriction lines of such
property to any material extent (except to the extent that it
may constitute a legal
C-9
<PAGE> 500
non-conforming use or structure or title insurance was
provided with respect thereto); no improvements on adjoining
properties encroach upon such Mortgaged Property (except to
the extent not material or covered by title insurance); and no
improvement located on or forming part of such Mortgaged
Property is in material violation of any applicable zoning
laws or ordinances and any non-material violation does not
materially and adversely affect the use, operation or value of
such Mortgaged Property (provided, however, that, although it
does not constitute a violation of law, the improvements on
such Mortgaged Property may constitute a legal non-conforming
use or structure).
(24) To the extent required under applicable law as of the
date of origination and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such
Mortgage Loan was authorized to do business in the
jurisdiction in which the related Mortgaged Property is
located at all times when it originated and held the Mortgage
Loan.
(25) With respect to each Mortgage Loan: (a) since the date of
origination of the such Mortgage Loan, there has been no
declaration by the Seller of an event of acceleration under
the related Mortgage or Mortgage Note; (b) there is no
existing material default or breach under the related
Mortgage, Mortgage Note or Assignment of Leases; (c) to
Seller's knowledge there has not been a material default or
breach under the related Mortgage, Mortgage Note or Assignment
of Leases since the origination of the related Mortgage Loan;
and (d) Seller has not, without having reviewed any public
records, received notice of any event (other than payments due
but not yet 30 days' delinquent) that, with the passage of
time or with notice and the expiration of any grace or cure
period, would constitute such a material default, breach or
event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach
or event of acceleration that specifically pertains to any
matter otherwise covered by any other representation and
warranty made by Seller in any other paragraph of this Exhibit
C and provided, further, that certain post-closing conditions
or requirements may not have yet been completed.
(26) If such Mortgage Loan is secured in whole or in part by
the interest of a Borrower under a Ground Lease and by the
related fee interest, such fee interest is encumbered by the
related Mortgage, and the related Mortgage does not by its
terms provide that it will be subordinated to the lien of any
mortgage or any other lien upon such fee interest.
C-10
<PAGE> 501
(27) No Mortgage Loan contains any equity participation by the
lender, provide for any contingent or additional interest in
the form of participation in the cash flow of the related
Mortgaged Property or, except for ARD Loans, provide for the
negative amortization of interest. Neither Seller nor any
affiliate thereof has any obligation to make any capital
contributions to the Borrower under the Mortgage Loan. The
Mortgage Loan was not originated for the sole purpose of
financing the construction of incomplete improvements on the
related Mortgaged Property.
(28) No holder of such Mortgage Loan has, to Seller's
knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the
owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by the
Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement
of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by thirty (30) days the first Due Date under
the related Mortgage Note.
(29) To Seller's knowledge, based on due diligence customarily
performed in the origination of comparable mortgage loans, as
of the date of origination of such Mortgage Loan, (a)(i) the
related Borrower was in possession of all material licenses,
permits and authorizations required by applicable laws for its
ownership and occupancy of the related Mortgaged Property as
it was then operated (excepting those which any tenant must
possess for its occupancy and operations) and (ii) with
respect to each Mortgaged Property improved by a hotel or
health care facility, the related Borrower was in possession
of all material licenses, permits and authorizations required
by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated (excepting
those which any tenant must possess for its occupancy and
operations), and (b) all such licenses, permits and
authorizations were valid and in full force and effect. The
Mortgage Loan requires the related Borrower (if not an
individual) to be qualified to do business and for the
Borrower to cause the Mortgaged Property to be in material
compliance with all regulations, licenses, permits, zoning,
and building laws.
(30) The related Mortgage or Mortgage Note, together with
applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph
12 above) such as to render the rights and remedies of the
holders thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
C-11
<PAGE> 502
(31) Such 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 (but without regard to the rule in
Treasury Regulation Section 1.860G-2(f)(2)). Any prepayment
premium and yield maintenance charges applicable to the
Mortgage Loan constitute "customary prepayment penalties"
within the meaning of Treasury Regulation Section
1.860G-1(b)(2).
(32) No fraud with respect to such Mortgage Loan has taken
place on the part of Seller or, to Seller's knowledge, on the
part of any originator, in connection with the origination of
such Mortgage Loan.
(33) The terms of such Mortgage Loan provide or, at lender's
option, permit, and the terms of the Pooling and Servicing
Agreement and any Sub-Servicing Agreement to which such
Mortgage Loan is subject provide for purposes of calculating
distributions on the Certificates and additional compensation
payable to the Master Servicer, the Special Servicer and any
related Sub-Servicer, that payments on and proceeds of such
Mortgage Loan will be applied to principal and interest at the
related Mortgage Rate (excluding, in the case of an ARD Loan
after its Anticipated Repayment Date, Additional Interest) due
and owing at the time such payments or proceeds are received,
prior to being applied to any Default Charges, assumption fees
and modification fees then due and owing.
(34) The origination, servicing and collection practices used
with respect to such Mortgage Loan have been in all material
respects legal and have met generally accepted servicing
standards utilized by institutional and commercial mortgage
lenders and loan servicers the main business of which is the
origination and servicing of similar commercial and
multifamily mortgage loans.
(35) There exists as part of the related Mortgage File an
Assignment of Leases (either as a separate instrument or
incorporated into the related Mortgage); and such Assignment
of Leases creates in favor of the holder, a valid, perfected
and (subject to the exceptions set forth in paragraph 12
above) enforceable lien of the same priority as the related
Mortgage, in the property and rights described therein;
provided that the enforceability of such lien is subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws affecting the enforcement of creditors' rights
generally, and by general principles of equity. Seller has the
full right to assign to the Purchaser such Assignment of
Leases and the lien created thereby
C-12
<PAGE> 503
as described in the immediately preceding sentence. No Person
other than the Borrower owns any interest in any payments due
under the related leases. The related Mortgage or such
Assignment of Leases provides for the appointment of a
receiver for rents or allows the lender to enter into
possession to collect rent or provides for rents to be paid
directly to the mortgagee in the event of a default.
(36) At the time of origination of the related Mortgage Loan
the Mortgaged Property was not encumbered by, and without
having reviewed any public records since origination, Seller
has no actual knowledge (as opposed to constructive knowledge)
that the related Mortgaged Property is presently encumbered
by, any debt (excluding preferred equity and mezzanine debt)
other than the related Mortgage Loan or another Mortgage Loan.
(37) Subject to a one-time (or, in the case of certain
Mortgage Loans, a multiple-time) transfer right allowed to a
transferee reasonably acceptable to the lender in accordance
with certain provisions set forth in the related Mortgage, and
excluding transfers for estate planning purposes, transfers to
affiliates or family members, transfers for or other purposes
where no change of control occurs or such transfers which have
been pre-approved to transferees which otherwise have met the
Mortgage Loan Seller's underwriting criteria, the related
Mortgage contains a "due-on-sale" clause which provides for
the acceleration of, or permits the lender to accelerate, the
payment of the unpaid principal balance of such Mortgage Loan
if, without the prior written consent of the holder of the
Mortgage and/or the satisfaction of specified criteria set
forth in the related Mortgage Loan documents, either (a) the
related Borrower transfers ownership of the related Mortgaged
Property subject to such Mortgage or (b) any controlling
interest in the related Borrower is directly or indirectly
transferred or sold. The related Mortgage requires the related
Borrower to pay all of the lender's reasonable fees and
expenses relating to obtaining consent and approval, including
the cost of any REMIC opinion required under the related
Mortgage Loan documents.
(38) Seller has not waived any claims against the related
Borrower or any related guarantor under any non-recourse
exceptions contained in the related Mortgage Note.
(39) The related Mortgage and/or Mortgage Note provides either
(a) that the related Borrower and another individual shall be
fully and personally liable for all liabilities, costs,
losses, damages, expenses or claims suffered or incurred by
the lender or lender's
C-13
<PAGE> 504
successors or assigns by reason of or in connection with and
to the extent of, or (b) that the related Mortgage Loan shall
become a recourse obligation of the Borrower and an individual
guarantor in the event of, any fraud or intentional material
misrepresentation by the related Borrower. Further, the
related Mortgage and/or Mortgage Note provides that the
related Borrower and another individual shall be fully and
personally liable for all liabilities, costs, losses, damages,
expenses or claims suffered or incurred by the lender or
lender's successors or assigns by reason of or in connection
with and to the extent of the related Borrower's
misapplication or misappropriation of rents (after the
occurrence of a default), insurance proceeds or condemnation
awards, acts of waste (or failure to maintain and repair the
related Mortgage Property in accordance with the Mortgage Loan
documents to the extent not covered by insurance proceeds made
available to the lender) and breaches of environmental
covenants.
(40) If such Mortgage Loan is an ARD Loan, it commenced
amortizing on its initial scheduled Due Date, and it provides
that: (i) its Mortgage Rate will increase by at least two (2)
percentage points in connection with the passage of its
Anticipated Repayment Date; (ii) its Anticipated Repayment
Date is not less than seven (7) years following the
origination of such Mortgage Loan; (iii) no later than the
related Anticipated Repayment Date, the related Borrower is
required (if it has not previously done so) to enter into a
"lockbox agreement" whereby all revenue from the related
Mortgaged Property shall be deposited directly into a
designated account controlled by the Master Servicer; (iv) any
cash flow from the related Mortgaged Property that is applied
to amortize such Mortgage Loan following its Anticipated
Repayment Date shall, to the extent such net cash flow is in
excess of the Scheduled P&I Payment payable therefrom, be net
of budgeted and discretionary (servicer approved) capital
expenditures; and (v) if the property manager for the related
Mortgaged Property can be removed by or at the direction of
the lender on the basis of a debt service coverage test, the
subject debt service coverage ratio shall be calculated
without taking account of any increase in the related Mortgage
Rate on such Mortgage Loan's Anticipated Repayment Date.
(41) At origination of such Mortgage Loan, neither the related
Borrower nor any related guarantor was, to Seller's knowledge
(based on customary and usual due diligence conducted by
prudent institutional commercial mortgage lenders), a debtor
in any pending state or federal bankruptcy or insolvency
proceeding. Furthermore, at the Closing Date, without having
reviewed any public records, Seller has no knowledge that the
related Borrower
C-14
<PAGE> 505
was a debtor in any pending state or federal bankruptcy or
insolvency proceeding.
(42) The servicing and collection practices used with respect
to such Mortgage Loan have in all material respects been legal
and met customary standards used by institutional lenders with
respect to comparable mortgage loans.
(43) (a) Without having reviewed any public records since
origination, Seller has no knowledge of any pending litigation
or other pending legal proceedings involving the related
Borrower or the related Mortgaged Property that can reasonably
be expected to materially interfere with the security intended
to be provided by the related Mortgage, the current use of the
related Mortgaged Property, or the current ability of the
Mortgaged Property to generate net cash flow sufficient to
service the Mortgage Loan.
(b) Without having reviewed any public records, Seller has no knowledge
of any pending governmental investigations involving the related Borrower or the
related Mortgaged Property that can reasonably be expected to materially
interfere with the security intended to be provided by the related Mortgage, the
current use of the related Mortgaged Property, or the current ability of the
Mortgaged Property to generate net cash flow sufficient to service the Mortgage
Loan.
(44) If such Mortgage Loan had a Cut-off Date Balance greater
than $5,000,000, the related Borrower has provided in its
organizational documents and/or covenanted in the Mortgage
Loan documents that it is a "single purpose entity". For
purposes of this representation, "single purpose entity" shall
mean an entity, other than an individual, which is limited in
its purpose by its organization documents and/or by the terms
of the related Mortgage Loan documents to owning and operating
a single property or group of properties, and which is not
permitted by its organization documents and/or by the related
Mortgage Loan documents to engage in any business unrelated to
such property and its financing, have any material assets
other than those related to its interest in the related
Mortgaged Property or its financing, or have any indebtedness
prohibited under the related Mortgage Loan. Furthermore, if
such Mortgage Loan had a Cut-off Date Balance greater than
$7,500,000, the related Borrower has provided in its
organizational documents and/or covenanted in the Mortgage
Loan documents that it shall maintain its own books, records
and accounts, in each case which are separate and apart from
the books and records and accounts of any other person,
conduct its business in its own name, not guarantee or assume
the debts or obligations of any other person, not commingle
its assets or funds with those of any other person, transact
business with
C-15
<PAGE> 506
affiliates on an arm's length basis and hold itself out as
being a legal entity, separate and apart from any other
person. To Seller's knowledge, at the time of origination of
such Mortgage Loan, the related Borrower was in compliance
with the aforementioned provisions/covenants.
(45) Except in cases where the related Mortgage Note or the
related Mortgage provide for (a) a substitution of
governmental securities for such Mortgaged Properties in a
defeasance, (b) a release of a portion of the related
Mortgaged Property, which portion was not considered material
for purposes of underwriting the Mortgage Loan, or (c) a
release of a portion of the related Mortgaged Property
conditioned upon the satisfaction of certain underwriting and
legal requirements, property performance requirements and/or
the payment of a release price or a partial defeasance,
neither the related Mortgage Note nor the related Mortgage
requires the lender to release all or any material portion of
the related Mortgaged Property from the lien of the related
Mortgage except upon payment in full of all amounts due under
the related Mortgage Loan.
(46) Such Mortgage Loan does not permit the related Mortgaged
Property to be encumbered subsequent to the date of
origination of such Mortgage Loan by any lien junior to or of
equal priority with the lien of the related Mortgage without
the prior written consent of the holder thereof. The Seller
has not consented to the encumbrance of the related Mortgage
Property by any lien junior to or of equal priority with the
lien of the related Mortgage.
(47) With respect to any Mortgage Loan that is a Defeasance
Loan, the related Mortgage Note or Mortgage provides that the
Defeasance Option is not exercisable prior to a date that is
at least two (2) years following the Startup Day for REMIC I
(or, if such Mortgage Loan is an asset of a Loan REMIC, for
such Loan REMIC). In addition, each Mortgage loan that is a
Defeasance Loan permits defeasance (i) only with substitute
collateral constituting "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage
Note when due, as certified by an independent certified public
accountant and (ii) to Seller's knowledge, only for the
purpose of facilitating the disposition of mortgaged real
property and not as part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate
mortgages.
(48) If the Mortgage Loan permits defeasance, then the related
Mortgage or other related loan document provides that the
related
C-16
<PAGE> 507
Borrower shall (a) pay all Rating Agency fees associated with
defeasance (if Rating Agency approval is a specific condition
precedent thereto) and all other reasonable expenses
associated with defeasance, including, but not limited to,
accountant's fees and opinions of counsel, or (b) provide all
opinions required under the related loan documents, including,
if applicable, a REMIC opinion, and any a applicable rating
agency letters confirming no downgrade or qualification of
ratings on any classes in the transaction and that the related
Mortgage is fully enforceable in accordance with its terms
(subject to applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws affecting the enforcement of
creditors' rights generally, and by general principles of
equity).
(49) If the Mortgage in respect of any Mortgage Loan is a deed
of trust, (a) a trustee, duly qualified under applicable law
to serve as such, is properly designated and serving under
such Mortgage, and (b) except in connection with a trustee's
sale after default by the related Borrower, no fees or
expenses are payable to such trustee by Seller or any
subsequent mortgagee.
(50) The related Mortgage Note is not secured by any
collateral that is not included in the Trust Fund.
(51) If such Mortgage Loan is secured by the interest of the
related Borrower as a lessee under a Ground Lease covering all
or any material portion of the related Mortgaged Property, but
not by the related fee interest in such Mortgaged Property or
portion thereof:
(a) Such Ground Lease was in full force and effect and, to Seller's
knowledge, no default existed under such Ground Lease nor did any estoppel from
the related ground lessor indicate a material incipient default nor is there any
existing condition which, but for the passage of time or giving of notice or
both would result in a default; Seller has provided the ground lessor with
notice of its lien in accordance with the terms of such Ground Lease; and, as of
the Closing Date, Seller has not received written notice of any, and to Seller's
knowledge there is no, default under such Ground Lease;
(b) Either (1) the related ground lessor has subordinated its interest
in the related Mortgaged Property to the interest of the holder of the Mortgage
Loan or (2) the related ground lessor has granted the holder of the Mortgage
Loan the right to written notice of and the right to cure any default or breach
by the ground lessee, including, when necessary, sufficient time to gain
possession of the interest of the lessee under the Ground Lease through legal
proceedings or to take other action so long as the Seller or its assignee is
proceeding diligently;
C-17
<PAGE> 508
(c) Upon the foreclosure of such Mortgage Loan or acceptance of a deed
in lieu thereof, the related Ground Lease is assignable to the lender under such
Mortgage Loan and its assigns without the consent of the ground lessor
thereunder;
(d) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease, or an estoppel letter or other agreement received
by the originator of such Mortgage Loan from the ground lessor, permits the
interest of the lessee thereunder to be encumbered by the related Mortgage; such
Ground Lease does not restrict the use of the related Mortgaged Property by such
lessee, its successors or assigns, in a manner that would materially, adversely
affect the security provided by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation, with
the exception of written instruments which are a part of the related Mortgage
File;
(e) 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;
(f) Such Ground Lease, or an estoppel letter or other agreement
received by the originator of such Mortgage Loan from the ground lessor,
provides that no notice of termination given under such Ground Lease is
effective against the holder unless a copy has been delivered to such lender in
the manner described in such Ground Lease;
(g) Such Ground Lease, or an estoppel letter or other agreement
received by the originator of such Mortgage Loan from the ground lessor,
requires the ground lessor to enter into a new lease with the holder of such
Mortgage Loan upon termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(h) Such Ground Lease has an original term (or an original term plus
one or more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the holder of such Mortgage Loan if it
becomes the owner of such leasehold interest) that extends not less than the
later to occur of (i) ten (10) years beyond the stated maturity of or
Anticipated Repayment Date for such Mortgage Loan or (ii) ten (10) years beyond
the amortization period of such Mortgage Loan;
(i) Under the terms of such Ground Lease, or an estoppel letter or
other agreement received by the originator of the Mortgage Loan from the ground
lessor, and the related Mortgage, taken together, any related insurance proceeds
or condemnation proceeds (other than in respect of a total or substantially
total loss or taking) will be applied either (1) to the repair or restoration of
all or part of the related Mortgaged Property, with the lender or a trustee
appointed by it having the right to hold and disburse such proceeds as the
C-18
<PAGE> 509
repair or restoration progresses or (2) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued interest
thereon. Under the terms of the Ground Lease and the related Mortgage, any
insurance proceeds or condemnation awards in respect of a total or substantially
total loss or taking will be applied first to the payment of the outstanding
principal and interest on the Mortgage Loan (except as otherwise provided by
applicable law);
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender; and
(k) Such Ground Lease may not be amended, modified or, except in the
case of a default, canceled or terminated without the prior written consent of
the holder of the Mortgage Loan, and any such action without such consent is not
binding on such holder, provided that such holder has provided the ground lessor
with notice of its lien in accordance with the terms of such Ground Lease.
(52) Neither the related Mortgage Note nor the related
Mortgage contain provisions limiting the right or ability of
Seller to assign, transfer and convey such documents.
(53) Each Mortgaged Property constitutes one or more complete
separate tax lots.
(54) Seller has inspected or caused to be inspected each
related Mortgaged Property within the twelve (12) months
preceding the Cut-off Date.
(55) The related Mortgage requires the related Borrower to
provide the holder of such Mortgage with quarterly and annual
operating statements, rent rolls and related information and
either quarterly or annual financial statements.
(56) The related Mortgage or other related loan document
provides that the Borrower shall pay any fees payable to a
Rating Agency in connection with the approval of an assumption
of the related Mortgage Loan (if such Mortgage or other
related loan document provides that Rating Agency approval is
a specific condition precedent thereto).
(57) The related Mortgage or Mortgage Note provides a grace
period for delinquent Monthly Payments no longer than ten (10)
days from the applicable Due Date.
(58) The Mortgage File contains 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,
C-19
<PAGE> 510
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 satisfies the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by
the Appraisal Standards Board of the Appraisal Foundation, all
as in effect on the date the Mortgage Loan was originated.
(59) As of the Closing Date, no group of the Seller's Mortgage
Loans representing more than 5% of the Initial Pool Balance
have the same Borrower or, to the Seller's knowledge, have
Borrowers that are affiliates of each other.
(60) To Seller's knowledge based on its inquiry and/or
engineering reports and/or appraisals obtained in connection
with the origination of each Mortgage Loan, each related
Mortgaged Property is served by public utilities, water and
sewer (or septic facilities).
C-20
<PAGE> 511
SCHEDULE C-1
Exceptions to Representations for SBRC Loans
Representation #6 & 23. Loan #6604209 (95 Metcalf Square). The adjacent
improvements encroach across the mortgaged property boundary. An encroachment
agreement was executed.
Representation #6 & 23. Loan #6603305 (Brookwood Square). Encroachment by
adjacent improvement. An encroachment agreement was executed.
Representation #6 & 23. Loan #6603263 (Pinon Trails Apartments). The building
crosses a setback line on the west side of the mortgaged property. A letter was
obtained from the licensed architect that the buildings that cross a setback
line could be relocated elsewhere on the site in the event of damage/destruction
without violating the current zoning rules.
Representation #6 & 23. Loans #6603174 and 6603178 (Balboa Palms & Tarzana
Palms). Each property short one parking space. A building encroaches over a
"future alley".
Representation #13. Loan No. 6603149 (Boardwalk at Marina Bay). Insurance
rating is A.M. Best A:VII.
Representation #13. Loan No. 6603488 (Fountain Oaks Business Center). Insurance
rating is A.M. Best A:XIV.
Representation #13. Loan No. 6602692 (One Centennial Drive). Insurance rating
is A.M. Best A:X.
Representation #13. Loan No. 6603311 (Sorrento Glen). Insurance rating is A.M.
Best B++:VII.
Representation #13. Loan No. 6603071 (Western Plaza SC). Insurance rating is
A.M. Best A:VII.
Representation #13. Loan No. 6603263 (Pinon Trails Apartments). One of the
insurers is not rated.
Representation #13. Loan No. 6603153 (Fairgrounds Mobile Estates). The PML for
the Mortgaged Property was calculated assuming a 9.5% excedence probability, 50
year exposure period and 500 year return period, resulting in a PML% of 16.4%.
Representation #14. Loan No. 6603153 (Fairgrounds Mobile Estates). The Phase I
environmental site assessment is dated June 29, 1998.
Representation #14. Loan No. 6602253 (Hampton Inn - Columbus). The Phase I
environmental site assessment is dated July 7, 1998.
C-1
<PAGE> 512
Representation #14. Loan No. 7000000 (Comfort Suites Hotel). The Phase I
environmental site assessment is dated July 6, 1998.
Representation #29. Loan #6603590 (Cambridge Village Apartments). A certificate
of occupancy not obtained at closing, although it appeared that all
pre-requisites were met at closing for its issuance.
Representation #29. Loan #6603487 (Kerman Shopping Center). The city refused to
locate or produce a certificate of occupancy because at the time of the request,
it was changing its recording systems for archiving data.
Representation #39. Loan #6603043 (Northpointe Plaza). An individual does not
guaranty the recourse obligations of the Borrower. However, the recourse
obligations are guaranteed by Wesbild Inc.
Representation #39. Loan #6602507 (Metatec Buildings). An individual does not
guaranty the recourse obligations of the Borrower. However, the recourse
obligations are guaranteed by Metatec International, Inc.
Representation #39. Loan #6604332 (One Michigan Avenue). There is no Guaranty.
Representation #39. Loan #6600069 (Frank's Nursery). There is no Guaranty.
Representation #39. Loan #6603019 (2265 Ralph Avenue). An individual does not
guaranty the recourse obligations of the Borrower. However, the recourse
obligations are guaranteed by Homeport Associates.
Representation #39. Loan #6603021 (1445 Hempstead Turnpike). An individual does
not guaranty the recourse obligations of the Borrower. However, the recourse
obligations are guaranteed by Elmont Realty Associates, L.P.
Representation #39. Loan #6603020 (5601 Merrick Road). An individual does not
guaranty the recourse obligations of the Borrower. However, the recourse
obligations are guaranteed by Massapequa KSI Venture L.L.C.
Representations #2, #7, #25, & #44. Loan #6603051 (Airport Plaza Office
Center). SPE requirements waived for this borrower at time off origination. The
borrower owns multiple properties.
Representations #2, #7, #25, & #44. Loan #6604495 (Raintree Corporate Center).
SPE requirements waived for this borrower at time off origination, although
there is a covenant to become an SPE within 18 months of origination (July,
2001).
Representation #45. Loan #6603311 (Park Central Office Development). A partial
release is permitted. REMIC opinion and rating agency approval required, as well
as opinion from architect regarding no adverse impact on development.
C-2
<PAGE> 513
Representation #51(A). Loans #6602253 & #7000000 (Kenney Portfolio #2). Although
the estoppels indicate that there is no material default, the lessor reserves
its right to conduct an audit.
Representation #51(B). Loans #6602253 & #7000000 (Kenney Portfolio #2). The
estoppels provide that Lender shall promptly and diligently gain possession
through foreclosure.
Representation #51(B). Loan #6604046 (Storage Depot I). Neither the lease nor
the estoppel explicitly provides that the Lender is allowed sufficient time to
gain possession of the interest of the lessee under the Ground Lease through
legal proceedings. Notwithstanding the foregoing, the Lender has a 60 day cure
right which may be extended to any reasonable time so long as Lender is making a
good faith effort at curing the default. The Lessor may not terminate the lease
within 180 days of the time notice of a default is tendered to the Borrower
without the consent of the Lender.
Representation #51(I). Loan #6604046 (Storage Depot I). The estoppel provides
that insurance proceeds shall be applied in accordance with the terms set forth
in the Mortgage. The Mortgage states that the Lender shall not apply insurance
proceeds to the payment of sums secured by the mortgage if the Borrower is not
in default under the Mortgage, the Lender determines that there are sufficient
funds to restore the Property to the Pre-Existing Condition, the Lender
determines that the rental income will meet operating costs, and the rebuilding
will be completed within one year of the date of the casualty.
Representation #51(I). Loans #6602253 & 700000 (Kenney Portfolio #2). In each
case the Mortgage provides that insurance proceeds and condemnation awards are
subject to the lessor's interest under any ground lease. Each lease provides
that with respect to insurance, in the event of a total casualty, if the cost of
restoration is less than the proceeds available, the Borrower must rebuild. If
the cost exceeds the proceeds available, the Borrower shall rebuild to the
original condition of the Mortgaged Property. With respect to condemnation, in
the event that a taking renders the Mortgaged Premises unsuitable for Borrower's
intended purpose, then the Borrower can terminate the lease and Borrower
surrenders the Premises.
Representation #53. Loan #6604495 (Raintree Corporate Center). The Lender cannot
confirm that the Property is currently a separate tax parcel. The rules of the
local jurisdiction permit the transfer of partial lots without government
approval. The division of tax lots occurs promptly upon the filing of the
conveyance deed. The tax assessment for 2001 will reflect the subdivided
parcels.
Representation #17 & 25. Loan #6603071 (Western Plaza), 6603019 (2265 Ralph
Avenue) and 6603021 (1445 Hempstead Turnpike). Escrowed funds are not being
released to pay the current insurance premiums until satisfactory invoices are
received. Additional detail is set forth on the attached Servicer Disclosure.
Representation #7 & 25. Loan #6603225 (Village Place Shopping Center), 6603019
(2265 Ralph Avenue), 30223048 (Melrose Plaza), 6603021 (1445 Hempstead
Turnpike), 6603769 (300
C-3
<PAGE> 514
Wildwood Avenue) and 6604473 (McBee Apartments). Financial statements have not
in all cases been timely provided in accordance with the requirements of the
Mortgage Loan documents. Additional detail is set forth on the attached Servicer
Disclosure.
Representation #7 & 25. Loans #6603071 (Western Plaza), 6604217 (McCormick
Place), 6603305 (Brookwood Square), 6604346 (Summer Oaks), 6603887 (Pinnacle
Warehouse ), 6604046 (Storage Depot I), 6604473 (McBee Apartments) and 6602692
(One Centennial Drive). With respect to each of the above, the date(s) has/have
passed under the related Mortgage Loan documents for which items of work or
other conditions to the release of reserved funds was/were to have been
completed and/or satisfied, and while the related escrowed funds have not been
disbursed, there is thus a non-compliance with the requirements of the Mortgage
Loan documents, which would perhaps not prevent the release of funds upon
satisfaction of the relevant requirements. Additional detail is set forth on the
attached Servicer Disclosure.
C-4
<PAGE> 515
NOTE ALSO THAT THE FOLLOWING WILL BE INDICATED IN THE SCHEDULE REFERRED TO IN
REPRESENTATION 14 AS MORTGAGED PROPERTIES FOR WHICH A "PHASE II" ENVIRONMENTAL
ASSESSMENT WAS PERFORMED:
<TABLE>
<CAPTION>
Loan # Property Name Report Date
<S> <C> <C>
#6605032 Red Lion Shopping Center 02/18/00
#6604346 The Market at Summer Oaks 01/05/00
#6604264 500 South Salina Street 03/01/00
#6603938 411-423 East 114th Street 12/21/99
</TABLE>
C-1
<PAGE> 516
SERVICER DISCLOSURE
<TABLE>
<CAPTION>
------------ -------------------------- ----------------- ---------------------------------------------------------------------
Salomon Nos. Borrower or Loan Name Issue Description
------------ -------------------------- ----------------- ---------------------------------------------------------------------
<S> <C> <C> <C>
6603071 SFS Mayaguez LP Insurance Midland has not received Insurance invoice to pay premiums.
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6603071 SFS Mayaguez LP Reserve Repair Reserve expired 06/15/2000 (Structural portions have been
completed; still waiting for Environmental documentation).
------------ -------------------------- ----------------- ---------------------------------------------------------------------
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6604217 Abart Properties Reserve Tenant Reserve has expired. Midland is in the process of getting
all necessary documentation to release funds. Tenant has informed
that all required improvement/repairs have been completed.
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6604217 Abart Properties Reserve Voicestream Tenant Estoppel and SNDA not received to date. This
reserve terminates 10 days after Voicestream has occupied the
space and paying rent.
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6603019 Homeport Associates Insurance Midland has not received Insurance amounts for this loan. The
insurance is part of a package policy (for many properties) and the
management company pays (according to ins. agent, Lois Behr at the
Harbor Group).
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6603305 Atlanta Brookwood Reserve Repair Reserve expires on 07/28/00; Borrower will request extension
Associates of one month to complete Asphalt repair. The other two items have
been completed (but Midland has not received any documentation).
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6604346 Park Place MHP Ltd. Reserve Environmental Reserve expired on 05/18/00; Borrower is working on
list of items and will request an extension.
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6604346 Park Place MHP Ltd. Reserve Deferred Maintenance Reserve expired 05/18/00. Borrower has
requested release of funds, but work has not been completed,
because his inspector has told him repairs are not necessary as
originally thought. He will request an extension.
------------ -------------------------- ----------------- ---------------------------------------------------------------------
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6603021 Elmont Realty Insurance Midland has not received Insurance amounts for this loan. The
insurance is part of a package policy (for many properties) and the
management company pays (according to ins agent, Lois Behr at the
Harbor Group).
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6603188 Castle Court Apartments Reserve Repair Reserve has expired; Borrower is in the process of sending
Midland documentation for the release of the funds.
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6202726 BH Westside Building LLC Reserve Deferred Maintenance Reserve has expired.
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6603887 Five-D Properties Reserve Deferred Maintenance has expired. According to the borrower, the
DM is for several items for a tenant. The borrower has tried a
couple of time(s) trying to get a hold of the new contact person at
the tenant's office. They are
------------ -------------------------- ----------------- ---------------------------------------------------------------------
</TABLE>
C-2
<PAGE> 517
<TABLE>
<CAPTION>
------------ -------------------------- ----------------- ---------------------------------------------------------------------
Salomon Nos. Borrower or Loan Name Issue Description
------------ -------------------------- ----------------- ---------------------------------------------------------------------
<S> <C> <C> <C>
working on the outstanding items, but needs to coordinate with the
Tenant.
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6604046 Airport Mini-Storage Reserve Repair Reserve has expired; the borrower has requested that Lender
review their contract to repair and release funds if repairs
(instead of replacement) would be satisfactory (contractor will
guarantee for 10 years).
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6604473 McBee Apartments Reserve Deferred Maintenance Reserve has expired. Borrower has stated all
necessary repairs have been completed. He is waiting on some
pictures before he sends the documentation (draw request) to
Midland. He expects to be able to send this to Midland next week.
----------------------------------------- ------------------ ---------------------------------------------------------------------
6602692 Cadlerock's Centennial Reserve Deferred Maintenance Reserve has expired. Have not heard from
property maintenance person as to the status of the repairs.
------------ -------------------------- ----------------- ---------------------------------------------------------------------
6603225 Village Place Shopping Financial Servicer has requested and informed the borrower of their
Center Statements obligation to provide financial statements in accordance with the
loan documents for Village Place Shopping Center; however, servicer
has been unable to obtain all statements in accordance with the
loan documents.
------------ -------------------------- ----------------- ---------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
-------------- --------------------------------------------------- ------------
First Quarter Financial Statement Exceptions
-------------- --------------------------------------------------- ------------
MIS # SSB # PROPERTY NAME RECEIVED
-------------- ------------
<S> <C> <C> <C>
30221968 6603019 2265 Ralph Avenue NO
-------------- ------------
30223048 6603691 Melrose Plaza NO
-------------- ------------
30221966 6603021 1445 Hempstead Turnpike NO
-------------- ------------
-------------- ------------
-------------- ------------
30223011 6603769 300 Wildwood Avenue NO
-------------- ------------
30223775 6604473 McBee Apartments NO
-------------- --------------------------------------------------- ------------
</TABLE>
C-3
<PAGE> 518
SCHEDULE C-2
<TABLE>
<CAPTION>
LOAN NUMBER MORTGAGE LOAN / PROPERTY NAME ALLOCATED
LOAN SELLER CUT-OFF DATE
BALANCE
-------------------------------------------------------------------------------------
<S> <C> <C> <C>
6603051 SBRC Airport Plaza Office Center - Phase 1 8,041,260.72
6604369 SBRC Sorrento Glen 5,414,016.97
6603691 SBRC Melrose Plaza 5,321,889.11
6603153 SBRC Fairgrounds Mobile Estates 5,033,877.38
6603487 SBRC Kerman Shopping Center 4,127,294.17
6603452 SBRC Beverly Westside 3,707,014.24
6603491 SBRC Vacaville Town Center 3,164,542.00
6603175 SBRC Independence Court Apartments 2,787,969.36
6604046 SBRC Storage Depot I 2,596,919.00
6602382 SBRC Tivoli Square Apartments 2,520,752.43
6603238 SBRC Golden Sands Apartments 2,476,259.66
6603174 SBRC Balboa Palms Apartments 1,991,406.70
6602379 SBRC Diplomat Apartments 1,900,471.30
6603178 SBRC Tarzana Palms Apartments 1,672,781.59
6602380 SBRC Monaco Apartments 1,541,288.43
6603177 SBRC Parthenia Garden Apartments 995,703.31
</TABLE>
C-2-1
<PAGE> 519
EXHIBIT D-1
FORM OF CERTIFICATE OF
A SECRETARY OR ASSISTANT SECRETARY
OF SALOMON BROTHERS REALTY CORP.
Certificate of Assistant Secretary of Salomon Brothers Realty Corp.
I, Andrew W. Alter, hereby certify that I am a duly elected
and acting Assistant Secretary of Salomon Brothers Realty Corp. (the "Company"),
and certify further as follows:
a) The Company is a corporation duly organized and validly
existing under the laws of the State of New York;
b) 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;
c) 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;
d) Since the date of the certificate of good standing referred
to in clause 3 above, the Company has not received any notification
from the Secretary of the State of New York, or from any other source,
that the Company is not in good standing in New York;
e) 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 August
15, 2000 (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.
f) The Mortgage Loans do not constitute all or substantially
all of the assets of the Company.
g) To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Company are pending or contemplated;
and
h) 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 August 15, 2000 (the
"Indemnification Agreement"), among the Company, SBMS VII, Salomon
Smith Barney Inc., PaineWebber Incorporated, Chase Securities
D-1-1
<PAGE> 520
Inc. and Artesia Banking Corporation, and (c) any other document or
certificate delivered on or before the date hereof in connection with
the transactions contemplated by the foregoing documents, was, at the
respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer
or representative, and the signature of such persons appearing on such
documents are their genuine signatures.
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
__________, 2000.
By: ______________________________
Name: Andrew W. Alter
Title: Assistant Secretary
The undersigned, an officer of the Company hereby certifies
that Andrew W. Alter 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
August __, 2000.
By: ______________________________
Name:
Title:
D-1-2
<PAGE> 521
EXHIBIT D-2
FORM OF CERTIFICATE OF
SALOMON BROTHERS REALTY CORP.
Certificate of Salomon Brothers Realty Corp.
In connection with the execution and delivery by Salomon
Brothers Realty Corp. (the "Company") of, and the consummation of the
transactions contemplated by, that certain Mortgage Loan Purchase Agreement
dated as of August 15, 2000 (the "Mortgage Loan Purchase Agreement"), between
Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII") and the Company, the
Company hereby certifies that (i) its representations and warranties set forth
in the Mortgage Loan Purchase Agreement and in the Indemnification Agreement
dated as of August 15, 2000, among the Company, SBMS VII, Salomon Smith Barney
Inc., PaineWebber Incorporated, Chase Securities Inc. and Artesia Banking
Corporation (the "Indemnification Agreement"; and, collectively with the
Mortgage Loan Purchase Agreement, the "Agreements"), are true and correct in all
material respects at and as of the date hereof (or, in the case of the
representations an 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)
it has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Mortgage Loan Purchase
Agreement to be performed or satisfied at or prior to the date hereof.
Capitalized terms used but not otherwise defined herein have the respective
meanings assigned to them in the Mortgage Loan Purchase Agreement and, if not
defined therein, then in the Indemnification Agreement.
Certified this ___ day of August __, 2000.
SALOMON BROTHERS REALTY CORP.
By: ______________________________
Name:
Title:
D-2-1
<PAGE> 522
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL
TO THE SELLER
August __, 2000
Addressees listed on Exhibit A hereto
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through
Certificates, Series 2000-C2
Ladies and Gentlemen:
This opinion is being provided to you by Andrew W. Alter
pursuant to Section 7(h) the Mortgage Loan Purchase Agreement, dated as of
August 15, 2000 (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"). I have also acted as counsel to the Company in
connection with its entering into the Indemnification Agreement dated as of
August 15, 2000 (the "Indemnification Agreement"), among the Company, SBMS VII,
Salomon Smith Barney Inc., PaineWebber Incorporated, Chase Securities Inc. and
Artesia Banking Corporation. 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:
a) The Company is a validly existing 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.
<PAGE> 523
b) Each Agreement has been duly authorized, executed and
delivered by the Company.
c) No consent, approval, authorization or order of any court,
governmental agency or body is required in connection with the
execution and delivery by the Company of the Agreements, except for
those consents, approvals, authorizations or orders that previously
have been obtained.
d) The transfer of the Mortgage Loans as provided in the
Agreements and the fulfillment of the other terms of the Agreements
will not conflict with or result in a violation of the Certificate of
Incorporation or the By-laws of the Company or any agreement,
instrument, order, writ, judgment or decree known to me to which the
Company is a party or is subject.
e) To the best of my knowledge, there are no actions or
proceedings against the Company, pending (with regard to which the
Company has received service of process) or overtly threatened in
writing before any court, governmental agency or arbitrator which
affect the enforceability of the Agreements, or which would draw into
question the validity of the Agreements or any action taken or to be
taken in connection with the Company's obligations contemplated
therein, or which would materially impair the Company's ability to
perform under the terms of the Agreements.
The opinions expressed herein are limited to the laws of the
State of New York and the federal law of the United States.
This 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-2-3
<PAGE> 524
EXHIBIT D-3B
FORM OF OPINION OF SIDLEY & AUSTIN,
SPECIAL COUNSEL TO THE SELLER
August 24, 2000
Salomon Brothers Mortgage Moody's Investors Service, Inc.
Securities VII, Inc. 99 Church Street
388 Greenwich Street New York, New York 10007
New York, New York 10013
Salomon Smith Barney Inc. Fitch, Inc.
388 Greenwich Street One State Street Plaza, 31st Floor
New York, New York 10013 New York, New York 10004
PaineWebber Incorporated Salomon Brothers Realty Corp.
1285 Avenue of the Americas, 38th Floor 388 Greenwich Street
New York, New York 10019 New York, New York 10013
Chase Securities Inc. Wells Fargo Bank Minnesota, N.A.
270 Park Avenue 45 Broadway, 12th Floor
New York, New York 10017 New York, New York 10006
Artesia Banking Corporation
c/o Artesia Mortgage Capital Corporation
1180 Northwest Maple Street, Suite 202
Issaquah, Washington 98027
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C2
Ladies and Gentlemen:
We have acted as special counsel to Salomon Brothers Realty
Corp. ("SBRC") with respect to certain matters in connection with transactions
contemplated by that certain Mortgage Loan Purchase Agreement, dated as of
August 15, 2000 (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(h) of the Mortgage Loan Purchase Agreement. Capitalized terms not
defined herein have the respective meanings set forth in, or otherwise assigned
to them pursuant to, the Mortgage Loan Purchase Agreement.
D-2-4
<PAGE> 525
For the purposes of this opinion letter, we have reviewed the
Mortgage Loan Purchase Agreement. In addition, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of such other
documents and records as we have deemed relevant or necessary as the basis for
the opinions contained in this letter; we have obtained such certificates from
and made such inquiries of officers and representatives of the parties to the
Mortgage Loan Purchase Agreement and public officials as we have deemed relevant
or necessary as the basis for such opinions; and we have relied upon, and
assumed the accuracy of, such other documents and records, such certificates and
the statements made in response to such inquiries, with respect to the factual
matters upon which such opinions are based. We have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters material to this opinion contained in the Mortgage Loan Purchase
Agreement, (ii) the legal capacity of natural persons, (iii) the genuineness of
all signatures, (iv) the authenticity of all documents submitted to us as
originals, (v) the conformity to the authentic originals of all documents
submitted to us as certified, conformed or photostatic 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 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
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 intentions and
agreements of the parties to the Mortgage Loan Purchase Agreement, as expressed
therein.
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
D-2-5
<PAGE> 526
rights or remedies cumulative and enforceable in addition to any other right or
remedy, to provide that the election of any particular remedy does not preclude
recourse to one or more other remedies, to provide that the failure to exercise
or the delay in exercising rights or remedies will not operate as a waiver of
such rights or remedies, to impose penalties or forfeitures, or to provide for
set-off in the absence of mutuality between the parties, (c) any provision that
purports to release, exculpate or exempt a party from, or indemnify a party for,
liability for any act or omission on its part that constitutes negligence,
recklessness or willful or unlawful conduct, (d) any provision that purports to
govern matters of civil procedure, including any such provision that purports to
establish evidentiary standards, to waive objections to venue or forum, to
confer subject matter jurisdiction on any court that would not otherwise have
such jurisdiction or to waive any right to a jury trial, or (e) any provision
that purports to render unenforceable any modification, waiver or amendment that
is not executed in writing, to sever any provision of any agreement, to appoint
any person or entity as the attorney-in-fact of any other person or entity or to
provide that any agreement or any particular provision thereof is to be governed
by or construed in accordance with the laws of any jurisdiction other than the
State of New York; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties
generally; and (5) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provision of any agreement that purports or is construed to provide
indemnification with respect to securities law violations.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Mortgage Loan Purchase Agreement constitutes a valid,
legal and binding agreement of 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 New York 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-2-6
<PAGE> 527
EXHIBIT M-2
FORM OF PWRES MORTGAGE LOAN PURCHASE
AGREEMENT
M-2
<PAGE> 528
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective as of August 15, 2000, between Paine Webber Real Estate
Securities Inc., a Delaware corporation ("PWRES"), 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
PWRES desires to sell, assign, transfer and otherwise convey
to SBMS VII, without recourse, and SBMS VII desires to purchase, subject to the
terms and conditions set forth herein, the multifamily and commercial mortgage
loans (the "Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended from
time to time pursuant to the terms hereof.
SBMS VII intends to create a trust (the "Trust"), the primary
assets of which will be the Mortgage Loans, certain other multifamily and
commercial mortgage loans (the "Other Loans"; and, together with the Mortgage
Loans, the "Securitized Loans"). Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund") will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Fitch, Inc. and Moody's Investors Service, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of August 1, 2000 (the "Pooling and Servicing Agreement"), among SBMS
VII, as depositor, ORIX Real Estate Capital Markets, LLC, as master servicer (in
such capacity, the "Master Servicer") and as special servicer (in such capacity,
the "Special Servicer"), and Wells 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 to the Trust
contemporaneously with its purchase of the Mortgage Loans hereunder.
SBMS VII will acquire some of the Other Loans from Salomon
Brothers Realty Corp. ("SBRC"), some of the Other Loans from Artesia Mortgage
Capital Corporation ("AMCC"), and the remaining Other Loans from ORIX Real
Estate Capital Markets, LLC ("ORECM"; and, collectively with SBRC and AMCC, the
"Other Loan Sellers").
SBMS VII intends to sell the Registered Certificates to
Salomon Smith Barney Inc. ("Salomon"), PaineWebber Incorporated ("PaineWebber"),
Chase Securities Inc. ("Chase") and Artesia Banking Corp. ("Artesia BC"),
pursuant to an underwriting agreement, dated the
<PAGE> 529
date hereof (the "Underwriting Agreement"), among SBMS VII, Salomon,
PaineWebber, Chase and Artesia BC; and SBMS VII intends to sell the remaining
Certificates (the "Non-Registered Certificates") to Salomon and PaineWebber,
pursuant to a certificate purchase agreement, dated the date hereof (the
"Certificate Purchase Agreement"), among SBMS VII, Salomon and PaineWebber. The
Registered Certificates are more fully described in the prospectus dated August
4, 2000 (the "Basic Prospectus"); and the supplement to the Basic Prospectus
dated August 15, 2000 (the "Prospectus Supplement"; and, together with the Basic
Prospectus, the "Prospectus"), as each may be amended or supplemented any time
hereafter. Certain classes of the Non-Registered Certificates are more fully
described in the private placement memorandum dated August 15, 2000 (the
"Memorandum"), as it may be amended or supplemented at any time hereafter.
PWRES will indemnify SBMS VII, Salomon, PaineWebber, Chase,
Artesia BC, the Other Loan Sellers and certain related parties with respect to
the disclosure regarding the Mortgage Loans and PWRES contained in the
Prospectus, the Memorandum and certain other disclosure documents and offering
materials relating to the Certificates, pursuant to an indemnification
agreement, dated the date hereof (the "Indemnification Agreement"), among PWRES,
SBMS VII, Salomon, PaineWebber, Chase and Artesia BC.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise
convey (without recourse) to the Purchaser, and the Purchaser agrees to
purchase, subject to the terms and conditions set forth herein, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on August
24, 2000 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
scheduled due dates in August 2000 (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 $273,146,121, subject to a variance of plus or minus
5%. The purchase price for the Mortgage Loans shall be $284,525,797, together
with accrued interest on the Mortgage Loans at their respective Net Mortgage
Rates from and including the Cut-off Date 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).
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt
of the purchase price referred to in Section 1 hereof, the Seller does hereby
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse but subject to the terms of this Agreement, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including, without limitation, all of the
Seller's right, title and interest in and to the proceeds of any related title,
hazard or other insurance policies received by the Seller on or with respect to
the Mortgage Loans after the Cut-off Date and any
3
<PAGE> 530
Additional Collateral. The Seller shall, within 15 days of the discovery of an
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. The Mortgage Loan Schedule, as it may be amended, shall conform
to the requirements set forth in this Agreement.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its
expense, deliver or cause to be delivered to the Purchaser or its designee the
Mortgage File and any Additional Collateral (other than reserve funds and escrow
payments) with respect to each Mortgage Loan. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipient of the items
described in the preceding sentence shall be the Trustee.
If the Seller cannot deliver, or cause to be delivered, on or
before the Closing Date, as to any Mortgage Loan, the original Mortgage Note,
the Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser, Trustee, Master Servicer and
Special Servicer against any losses and expenses that may be incurred by reason
of such lost or destroyed Mortgage Note. If the Seller cannot deliver, or cause
to be delivered, on or before the Closing Date, as to any Mortgage Loan, any of
the documents and/or instruments required to be delivered as part of the
Mortgage File for such Mortgage Loan, with evidence of recording or filing
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, the delivery requirements of this Agreement shall be deemed to have been
satisfied as to such non-delivered document or instrument provided that a
photocopy of such non-delivered document or instrument (without evidence of
recording or filing, but certified by the Seller to be a true and complete copy
of the original thereof submitted for recording or filing) is delivered to the
Purchaser, the Trustee or a Custodian appointed thereby on or before the Closing
Date, and either the original of such non-delivered document or instrument, or a
photocopy thereof (certified by the appropriate county recorder's office, in the
case of a Mortgage, to be a true and complete copy of the original thereof
submitted for recording or filing), with evidence of recording or filing
thereon, is delivered to the Purchaser, the Trustee or such Custodian within 365
days of the Closing Date (or within such longer period after the Closing Date as
the Purchaser may consent to, which consent shall not be unreasonably withheld
so long as the Seller is in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy). If the Seller cannot
deliver, or cause to be delivered, on or before the Closing Date, as to any
Mortgage Loan, any of the documents and/or instruments referred to in the
definition of "Mortgage File", with evidence of recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost, the delivery requirements of this Agreement shall be
deemed to have been satisfied as to such non-delivered document or instrument
and such non-delivered document or instrument shall be deemed to have been
included in the
4
<PAGE> 531
Mortgage File, provided that a photocopy of such non-delivered document or
instrument (with evidence of recording thereon and certified, in the case of a
Mortgage, by the appropriate county recorder's office to be a true and complete
copy of the original thereof submitted for recording) is delivered to the
Purchaser, the Trustee or a Custodian appointed thereby on or before the Closing
Date together with an affidavit certifying that the original thereof has been
lost or destroyed. With respect to any Mortgage Loan, and notwithstanding the
foregoing, the Seller may deliver a UCC-3 on or before the Closing Date that
does not contain the filing information for the related UCC-1 and/or UCC-2 if
such UCC-1 and/or UCC-2 has not been returned to the Seller by the applicable
filing office, and the Seller may deliver assignments of documents and/or
instruments that do not contain the recording information for the related
documents and/or instruments, as applicable, if such documents and/or
instruments have not been returned to the Seller by the applicable recording
office. The Seller hereby authorizes the Purchaser, acting in its stead and on
its behalf, to fill in any missing filing or recording information or any
instrument or document required to be delivered pursuant to this subsection (b).
The delivery of an original pro forma or specimen title insurance policy or an
original marked, redated and recertified commitment to issue a policy of
lender's title insurance in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf no later than the 90th day following the
Closing Date (or such later date provided that the reason for the delay in
delivery of the title policy to the Trustee or Custodian is either (i) because
of a delay caused by the public recording or filing office where the Mortgage
has been delivered for recording or filing in returning a filed copy of the
Mortgage or (ii) due to the failure of the title company to forward such title
policy in a timely manner).
If the Seller cannot deliver, or cause to be delivered, on or
before the Closing Date, as to any Mortgage Loan, any of the documents and/or
instruments required to be delivered as part of the Mortgage File for such
Mortgage Loan, with evidence of recording or filing thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, and the Seller has
satisfied its delivery requirements as to such non-delivered document or
instrument by delivering a photocopy thereof (without evidence of recording or
filing, but certified by the Seller to be a true and complete copy of the
original thereof submitted for recording or filing), then:
(i) the Purchaser will, on or about the 115th day following
the Closing Date and approximately every 90 days thereafter until it or
its designee receives the original or a photocopy of the subject
document or instrument reflecting evidence of recordation or filing,
prepare and forward or cause to be prepared and forwarded to the Seller
a certification, to be signed and returned by the Seller, to the effect
that the Seller is in good faith attempting to obtain from the
appropriate public recording or filing office such original or
photocopy; and
(ii) the Seller agrees to execute and return to the Purchaser
or its designee each such certification within 15 days following its
receipt thereof.
5
<PAGE> 532
In addition, unless previously delivered by the Seller to the
Purchaser or its designee, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, the following items, on or before the Closing Date (or, if any of
the following items are not in the actual possession of the Seller as soon as
reasonably or practical, but in any event within 30 days, after Closing Date):
(i) copies of the Mortgage Files for the respective Mortgage Loans; (ii)
originals or copies of all financial statements, appraisals, environmental/
engineering reports, leases, rent rolls and tenant estoppels in the possession
or under the control of the Seller that relate to the Mortgage Loans and, to the
extent they are not required to be a part of a Mortgage File in accordance with
the definition thereof, originals or copies of all documents, certificates and
opinions in the possession or under the control of the Seller that were
delivered by or on behalf of the related Borrowers in connection with the
origination of the Mortgage Loans; and (iii) all unapplied reserve funds and
escrow payments in the possession or under the control of the Seller that relate
to the Mortgage Loans, other than those that are to be retained by a
sub-servicer or primary servicer that will continue to act on behalf of the
Purchaser. Unless the Purchaser notifies the Seller in writing to the contrary,
the designated recipient of the items described in clauses (i) - (iii) of the
preceding sentence shall be the Master Servicer.
The Seller shall also provide to the Purchaser or its designee
the initial data on the Mortgage Loans (as of the Closing Date or the most
recent earlier date for which such date is available) contemplated by the Loan
Set-up File, the Loan Periodic Update File, the Operating Statement Analysis
Report and the Property File.
(d) The Seller shall be responsible for: (i) all reasonable
costs and expenses associated with recording and/or filing any and all
assignments and other instruments of transfer to the Purchaser with respect to
the Mortgage Loans that are required to be recorded or filed, as the case may
be, under the Pooling and Servicing Agreement (provided that the Seller shall
not be responsible for actually recording or filing any such assignments or
other instruments of transfer); and (ii) all other reasonable out-of-pocket
costs and expenses incurred by the Trustee or a Custodian pursuant to Section
2.01(e) of the Pooling and Servicing Agreement. In connection with the
endorsement of any Mortgage Note and the delivery of any assignment from the
Seller hereby authorizes the Purchaser or its designee to complete each
endorsement or assignment in blank appearing thereon in favor of the Purchaser
in such manner as the Purchaser shall determine the exercise of its sole
discretion, provided that such endorsement will be without recourse,
representation or warranty of the Seller except as expressly set forth in this
Agreement. 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,
the Purchaser or an assignee thereof, which may include the Trustee or its
Custodian or its agent, shall notify the Seller of same. The Seller shall cure
such defect within 90 days following such notice or the Purchaser may prepare or
cause to be prepared a substitute therefor or cure such defect, as the case may
be, and thereafter the Purchaser shall upon receipt thereof cause the same to be
duly recorded or filed, as appropriate, all at the Seller's expense. The
Purchaser may (and, at the Purchaser's request, the Seller shall) execute any
replacement assignment or instrument of transfer, being filed in substitution
for any such lost or returned unrecorded or unfiled assignment or instrument of
transfer, at the Seller's expense, and the Seller shall assist the Purchaser or
its designee or agent in recording or filing such documents or instruments.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee or to file any UCC-3 in those
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<PAGE> 533
jurisdictions where, in the written opinion of the local counsel to Purchaser or
Trustee or such other evidence as is acceptable to the Trustee or its designee
such recordation and/or filing is not required to protect the Purchaser's
interest in the Mortgage Loans against sale, further assignment, satisfaction or
discharge by the Seller, and the reasonable costs of such opinion and/or other
evidence shall be borne by the Seller. The Seller shall provide the Purchaser or
its designee with a power of attorney to enable it or them to record any loan
documents that the Purchaser has been unable to record.
(e) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller shall report its transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of those assets
to the Purchaser in exchange for the consideration specified in Section 1
hereof. In connection with the foregoing, the Seller shall cause all of its
records to reflect such transfer as a sale (as opposed to a secured loan).
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
SECTION 3. Examination of Mortgage Loan Files and Due
Diligence Review.
The Seller shall reasonably cooperate with any examination of
the Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser. The
fact that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section 4
except as such remedies are otherwise limited by the terms of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes, as of the Closing Date, to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of
such other date specifically provided in the particular representation or
warranty) to and for the benefit of the Purchaser, each of the representations
and warranties set forth in Exhibit C.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 4 shall survive delivery of the respective
Mortgage Files to the Purchaser or its designee and shall inure to the benefit
of the Purchaser for so long as any of the Mortgage Loans remains outstanding,
notwithstanding any restrictive or qualified endorsement or assignment.
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<PAGE> 534
SECTION 4A. Representations, Warranties and Covenants of Purchaser.
The Purchaser hereby represents and warrants, as of the Closing Date, that:
(a) The Purchaser is a duly formed corporation, validly existing and
in good standing under the laws of the State of Delaware.
(b) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
(c) This Agreement, assuming due authorization, execution and delivery
by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(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.
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<PAGE> 535
SECTION 5. Notice of Breach; Cure, Repurchase and
Substitution.
(a) Within 90 days of the earlier of discovery or receipt of
notice by the Seller that there has been a Material Breach or a Material
Document Defect, the Seller shall, subject to subsection (b) below, (i) cure
such Material Breach or Material Document Defect, as the case may be, in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price provided for in the
Pooling and Servicing Agreement, to be deposited or delivered in accordance with
the directions of the Purchaser; provided that if (i) any such Material Breach
or Material Document Defect, as the case may be, does not relate to whether the
Defective Mortgage Loan was, as of the Closing Date, a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (a "Qualified Mortgage"),
(ii) such Material Breach or Material Document Defect, as the case may be, is
capable of being cured but not within such 90-day period, (iii) the Seller has
commenced and is diligently proceeding with the cure of such Material Breach or
Material Document Defect, as the case may be, within such 90-day period, and
(iv) the Seller shall have delivered to the Purchaser a certification executed
on behalf of the Seller by an officer thereof setting forth the reason that such
Material Breach or Material Document Defect, as the case may be, is not capable
of being cured within the initial 90-day period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be cured within an additional period not to exceed 90 more days,
then the Seller shall have up to an additional 90 days to complete such cure or,
failing such, to repurchase the Defective Mortgage Loan. 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 a Material Document Defect, but if the Seller
has actual knowledge of a Material Breach or Material Document Defect with
respect to a Mortgage Loan, it will notify the Purchaser.
If a Breach or Document Defect exists with respect to any
Mortgage Loan constituting part of a Cross-Collateralized Group, then the
determination as to whether such Breach or Document Defect, as the case may be,
is a Material Breach or a Material Document Defect, as applicable, shall be made
as follows:
(i) if such Mortgage Loan has become a Specially Serviced
Mortgage Loan by reason of such Breach or Document Defect, then based
solely upon such Mortgage Loan and the Mortgaged Property identified on
the Mortgage Loan Schedule as corresponding thereto, without regard to
the cross-collateralization; and
(ii) otherwise, treating such Cross-Collateralized Group as a
single Mortgage Loan secured by all of the related Mortgaged
Properties.
For purposes of applying the remedies contemplated by this Section 5(a) in
connection with any Material Breach or Material Document Defect in respect of
any Cross-Collateralized Group or any particular Cross-Collateralized Mortgage
Loan that is part of such Cross-Collateralized Group, such Cross-Collateralized
Group shall be treated as a single Mortgage Loan.
9
<PAGE> 536
If any Defective Mortgage Loan is to be repurchased as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and shall forward
such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller
set forth in this Section 5(a) to cure a Material Breach or a Material Document
Defect or repurchase the related Defective Mortgage Loan(s), constitute the sole
remedies available to the Purchaser with respect to a Breach or Document Defect.
The Seller hereby acknowledges the assignment by the Purchaser
to the Trustee, as trustee under the Pooling and Servicing Agreement, for the
benefit of the Certificateholders, of the representations and warranties
contained herein and of the obligations of the Seller to cure Material
Breaches/Material Document Defects or repurchase Defective Mortgage Loans
pursuant to this Section 5(a). In addition, the Seller hereby acknowledges and
agrees that, pursuant to Section 2.03(d) of the Pooling and Servicing Agreement,
the Master Servicer and the Special Servicer (in the case of Specially Serviced
Mortgage Loans) have the right, for the benefit of the Certificateholders, to
enforce the obligations of the Seller under this Agreement. If the Seller is
required to repurchase a Defective Mortgage Loan, the reasonable out-of-pocket
costs and expenses, including reasonable attorneys' fees and disbursements,
incurred by the Purchaser, the Trustee, the Custodian, the Master Servicer and
the Special Servicer as a result of such repurchase shall be part of the
purchase price.
(b) It shall be a condition to any repurchase of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that (i) the Trustee as
assignee of the Purchaser shall have executed and delivered such instruments of
transfer or assignment then presented to it by the Seller, in each case without
recourse, as shall be necessary to vest in the Seller the legal and beneficial
ownership of such Defective Mortgage Loan (including any property acquired in
respect thereof or proceeds of any insurance policy with respect thereto), to
the extent that such ownership interest was transferred to the Purchaser
hereunder and (ii) the Purchaser or its assignee shall release or cause the
release to the Seller or its designee of the Mortgage File, any Additional
Collateral, all insurance policies and proceeds thereunder, the Servicing File
and any Escrow Payments and/or Reserve Funds held by or on behalf of the
Purchaser (or its assignee) with respect to such Mortgage Loan.
SECTION 6. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Sidley & Austin, 875 Third Avenue, New York, New
York 10022 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
made pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date or such other date as specified in
Exhibit C;
(b) 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
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<PAGE> 537
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;
(c) 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;
(d) All other terms and conditions of this Agreement required
to be complied with by the Seller and the Purchaser, including, without
limitation, in the case of the Purchaser, payment of the purchase price, on or
before the Closing Date shall have been complied with, and the Seller shall have
the ability to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees, costs and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement; and
(f) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the
Purchaser and the Seller;
(b) The Indemnification Agreement duly executed and delivered
by the Seller, the Purchaser and each of Salomon, PaineWebber, Chase and Artesia
BC;
(c) The Pooling and Servicing Agreement duly executed and
delivered by SBMS VII, the Master Servicer, the Special Servicer and the
Trustee;
(d) An Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and upon
which the Purchaser, Salomon, PaineWebber, Chase, Artesia BC, the Other Loan
Sellers 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
(g) below;
(e) A certificate of good standing with respect to the Seller
issued by the Secretary of State of the State of Delaware dated not earlier than
10 days prior to the Closing Date;
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<PAGE> 538
(f) A certificate of the Seller substantially in the form of
Exhibit D-2 hereto, executed by an executive officer or authorized signatory of
the Seller and dated the Closing Date, and upon which the Interested Parties may
rely;
(g) Resolutions of the Seller authorizing the transactions
contemplated by this Agreement, which resolutions will be in full force and
effect, and will not have been rescinded, as of the Closing Date;
(h) A written opinion of counsel for the Seller, which may be
delivered by in-house counsel, substantially in the form of Exhibit D-3A hereto
(with any modifications required by any Rating Agency, and subject to such
reasonable assumptions, qualifications and limitations as may be requested by
counsel for the Seller and acceptable to counsel for the Purchaser), dated the
Closing Date and addressed to SBMS VII, each of the other parties to the Pooling
and Servicing Agreement, Salomon, PaineWebber, Chase, Artesia BC and each Rating
Agency; a written opinion of Sidley & Austin as special counsel for the Seller,
substantially in the form of Exhibit D-3B hereto (with any modifications
required by any Rating Agency, and subject to such reasonable assumptions,
qualifications and limitations as may be requested by counsel for the Seller and
acceptable to counsel for the Purchaser), dated the Closing Date and addressed
to SBMS VII, each of the other parties to the Pooling and Servicing Agreement,
Salomon, PaineWebber, Chase, Artesia BC and each Rating Agency; and such other
written opinions as may be required by a 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); (i) One or more
accountants' comfort letters relating to the information regarding the Mortgage
Loans contained in the Prospectus and Memorandum that is of a statistical
nature; and
(j) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
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 May 30,
2000 (the "Term Sheet").
SECTION 9. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to the Purchaser at 388 Greenwich Street, New
York, New York 10013, attention: Angela Hutzel, facsimile no. 212-816-8306, 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 1285 Avenue of the Americas, 38th Floor, New York, New York 10019,
attention: Mark Lebowitz, facsimile no.: (212) 713-3006,
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<PAGE> 539
or to such other address or facsimile number as may hereafter be furnished to
the Purchaser in writing by the Seller.
SECTION 10. Characterization.
The parties hereto agree that it is their express intent that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. The parties hereto further agree that it is not
their intention that such conveyance be deemed a pledge of the Mortgage Loans by
the Seller to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to continue to be property of the Seller, then: (a) this Agreement shall be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder(s) of those assets in accordance with the terms thereof (other
than scheduled payments of interest and principal due on or before the Cut-off
Date) and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property; (c) the
assignment by SBMS VII to the Trustee of its interests in the Mortgage Loans as
contemplated by Section 16 hereof shall be deemed to be an assignment of any
security interest created hereunder; (d) the possession by the Purchaser or any
successor thereto of the related Mortgage Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction; and
(e) notifications to, and acknowledgments, receipts or confirmations from,
persons or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any
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<PAGE> 540
part, provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, SBMS VII is
expressly authorized to assign it rights and obligations under this Agreement,
in whole or in part, to the Trustee, for the benefit of the registered holders
and beneficial owners of the Certificates. To the extent of any such assignment,
the Trustee (including acting through the Master Servicer and Special Servicer
pursuant to the terms of the Pooling and Servicing Agreement), for the benefit
of the registered holders and beneficial owners of the Certificates, shall be
the Purchaser hereunder. In connection with the transfer of any Mortgage Loan by
the Trust as contemplated by the terms of the Pooling and Servicing Agreement,
the Trustee, for the benefit of the registered holders and beneficial owners of
the Certificates, is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the transferee of such Mortgage
Loan. To the extent of any such assignment, such transferee shall be the
Purchaser hereunder (but solely with
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<PAGE> 541
respect to such Mortgage Loan that was transferred to it). Subject to the
foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 17. Amendments.
(a) No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced.
(b) Notwithstanding any contrary provision of this Agreement
or the Pooling and Servicing Agreement, no amendment of the Pooling and
Servicing Agreement executed after the Closing Date that increases the
obligations of or otherwise adversely affects, the Seller, shall be effective
against the Seller.
SECTION 18. Entire Agreement.
Except as otherwise expressly contemplated hereby, this
Agreement constitutes the entire agreement and understanding of the parties with
respect to the matters addressed herein, and this Agreement supersedes any prior
agreements and/or understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
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<PAGE> 542
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.
PAINE WEBBER REAL ESTATE SECURITIES INC.
By:_____________________________________
Name:
Title:
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
By:_____________________________________
Name:
Title:
<PAGE> 543
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached Schedule]
<PAGE> 544
SCHEDULE OF PWRES MORTGAGE LOANS
<TABLE>
<CAPTION>
CONTROL LOAN MORTGAGE LOAN / PROPERTY NAME PROPERTY ADDRESS CITY ZIP ORIGINAL
NUMBER NUMBER LOAN STATE CODE BALANCE
SELLER
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
2 10651 PW 1615 Poydras Street 1615 Poydras Street New Orleans LA 70112 29,200,000
5 10388 PW Diplomat Centre 820 Second Avenue New York NY 10017 19,300,000
9 11128 PW Diamond Point Plaza 8250 Eastern Avenue Baltimore MD 21224 15,300,000
10 11539 PW Mount Vernon Medical 755 Mount Vernon Highway Atlanta GA 30328 15,250,000
Office Building
12 10124 PW 110 Greenwich Street 110 Greenwich Street New York NY 10006 14,400,000
13 10959 PW San Fernando Professional
Buildings Portfolio 14,100,000
13A 10959A PW 11155-11165 Sepulveda 11155-11165 Sepulveda Mission Hills CA 91345
Boulevard Boulevard
13B 10959B PW 11211 Sepulveda Boulevard 11211 Sepulveda Boulevard Mission Hills CA 91345
13C 10959C PW 17909 Soledad Canyon Road 17909 Soledad Canyon Road Santa Clarita CA 91351
14 9913 PW 3200 Regatta Boulevard 3200 Regatta Boulevard Richmond CA 94804 12,600,000
17 11233A PW Kmart Plaza 200 South Main Street West Lebanon NH 03784 8,610,000
18 11233B PW Miracle Mile Shopping 422 Miracle Mile Lebanon NH 03766 1,495,000
Center
19 11233C PW North Country Plaza 267 Plainfield Road West Lebanon NH 03784 1,565,000
28 7217 PW 375 Ballardvale Street 375 Ballardvale Street Wilmington MA 01887 7,920,000
33 8902 PW Gateway Mobile Home Park 10100 Gandy Blvd. North St. Petersburg FL 33716 6,850,000
34 9529 PW Lake Cook Office 4201 Lake Cook Road Northbrook IL 60062 6,700,000
35 10216 PW Pine Terrace Apartments 838 Pine Avenue Long Beach CA 90813 6,525,000
37 8997 PW Shoppers Food Warehouse 1320 Carl D. Silver Parkway Fredericksburg VA 22401 6,300,000
42 9865 PW 400 Blair Road 400 Blair Road Carteret NJ 07008 6,000,000
43 7222 PW 14 Jewel Drive 14 Jewel Drive Wilmington MA 01887 5,760,000
45 7223 PW 87 Concord & 7 Lopez
Portfolio 5,505,000
45A 7223A PW 87 Concord Road 87 Concord Road North Reading MA 01864
45B 7223B PW 7 Lopez Road 7 Lopez Road Wilmington MA 01887
51 4459A PW Days Inn Fort Wright 1945 Dixie Highway Fort Wright KY 41011 1,835,000
52 4459B PW Days Inn Frankfort 1051 US Highway 127 South Frankfort KY 40601 2,255,000
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN MORT- NOTE CUT-OFF MONTHLY ORIGINAL REMAIN- SCHED- STATED CALCU-
NUMBER NUMBER GAGE RATE DATE DATE DEBT TERM TO ING TERM ULED ORIGINAL LATED
BALANCE SERVICE MATURITY TO MATURITY AMORT- ORIGINAL
PAYMENT / ARD MATURITY / DATE IZATION AMORT-
(MONTHS) / ARD TERM IZATION
(MONTHS) (MONTHS) TERM
(MONTHS)
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2 10651 8.4500% 04/07/00 29,159,803 223,488.84 120 117 05/01/30 360 360
5 10388 8.4500% 05/04/00 19,280,819 147,716.94 120 118 06/01/10 360 360
9 11128 8.8900% 06/02/00 15,295,228 121,898.23 120 119 07/01/10 360 360
10 11539 8.2400% 06/29/00 15,243,746 114,460.97 120 119 07/01/10 360 360
12 10124 8.4300% 05/12/00 14,385,472 110,077.61 119 117 05/01/10 359 359
13 10959 9.1000% 05/22/00 14,088,419 114,467.79 120 118 06/01/10 360 360
13A 10959A
13B 10959B
13C 10959C
14 9913 8.8000% 12/27/99 12,558,042 99,574.55 120 113 01/01/10 360 360
17 11233A 8.6400% 06/30/00 8,606,999 67,059.61 120 119 07/01/10 360 360
18 11233B 8.7700% 06/30/00 1,494,508 11,782.53 120 119 07/01/10 360 360
19 11233C 8.7400% 06/30/00 1,564,478 12,300.69 120 119 07/01/10 360 360
28 7217 8.5500% 11/12/99 7,888,749 61,178.82 120 112 12/01/09 360 360
33 8902 8.4500% 09/13/99 6,815,006 52,428.03 120 110 10/01/09 360 360
34 9529 9.0000% 05/17/00 6,694,327 53,909.72 120 118 06/01/10 360 360
35 10216 8.3500% 04/20/00 6,515,732 49,479.61 120 117 05/01/10 360 360
37 8997 8.5000% 12/01/99 6,274,789 48,441.55 120 112 12/01/29 360 360
42 9865 8.3800% 06/19/00 5,997,671 45,625.51 120 119 07/01/30 360 360
43 7222 8.5500% 11/12/99 5,737,272 44,493.69 120 112 12/01/09 360 360
45 7223 8.5500% 11/12/99 5,483,278 42,523.91 120 112 12/01/09 360 360
45A 7223A
45B 7223B
51 4459A 7.8000% 07/16/98 1,788,065 13,920.57 120 96 08/01/08 300 300
52 4459B 7.8000% 07/16/98 2,197,322 17,106.75 120 96 08/01/08 300 300
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN CALCULATED LOAN CROSS ANTICI- DEFEASE DEFEASE OWNER-SHIP INTEREST
NUMBER NUMBER REMAINING BALANCE COLLATER- PATED START DATE END DATE INTEREST ACCRUAL
AMORT- AT ALIZED REPAY- METHOD
IZATION MATURITY / (MORTGAGE MENT DATE
TERM ARD LOAN GROUP)
(MONTHS)
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2 10651 357 26,391,631 No 05/01/10 05/01/04 04/30/10 Fee Simple Actual/360
5 10388 358 17,440,104 No NAP 06/01/04 05/31/10 Fee Simple Actual/360
9 11128 359 13,963,921 No NAP 07/01/04 03/31/10 Fee Simple Actual/360
10 11539 359 13,716,170 No NAP 09/01/02 06/30/10 Fee Simple Actual/360
12 10124 357 13,009,262 No NAP 06/01/04 04/30/10 Fee Simple Actual/360
13 10959 358 12,924,549 No NAP 09/01/02 05/31/10 Actual/360
13A 10959A Fee Simple
13B 10959B Fee Simple
13C 10959C Fee Simple
14 9913 353 11,477,006 No NAP 01/01/04 12/31/09 Fee Simple Actual/360
17 11233A 359 7,814,949 Yes (b) NAP 09/01/02 06/30/10 Fee Simple Actual/360
18 11233B 359 1,360,869 Yes (b) NAP 09/01/02 06/30/10 Fee Simple Actual/360
19 11233C 359 1,423,646 Yes (b) NAP 09/01/02 06/30/10 Fee Simple Actual/360
28 7217 352 7,175,706 No NAP 12/01/03 11/30/09 Fee Simple Actual/360
33 8902 350 6,192,479 No NAP 10/01/03 09/30/09 Fee Simple Actual/360
34 9529 358 6,128,349 No NAP 06/01/04 05/31/10 Fee Simple Actual/360
35 10216 357 5,883,955 No NAP 05/01/04 04/30/10 Fee Simple Actual/360
37 8997 352 5,701,497 No 12/01/09 01/01/04 11/30/09 Fee Simple Actual/360
42 9865 359 5,414,010 No 07/01/10 07/01/04 03/31/10 Fee Simple Actual/360
43 7222 352 5,218,695 No NAP 12/01/03 11/30/09 Fee Simple Actual/360
45 7223 352 4,987,659 No NAP 12/01/03 11/30/09 Actual/360
45A 7223A Fee Simple
45B 7223B Fee Simple
51 4459A 276 1,504,071 Yes (d) NAP 09/01/03 01/31/08 Fee Simple Actual/360
52 4459B 276 1,848,327 Yes (d) NAP 09/01/03 01/31/08 Fee Simple Actual/360
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN MASTER YIELD CTL RELATED GUARANTOR RATED CTL LEASE
NUMBER NUMBER SERVICING MAINTENANCE LOAN CREDIT PARTY ENHANCEME
FEE RATE CALCULATION TENANT POLICY
METHOD
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
2 10651 0.0500% NAP No
5 10388 0.0500% NAP No
9 11128 0.0500% NAP No
10 11539 0.0500% NAP No
12 10124 0.0500% NAP No
13 10959 0.0500% NAP No
13A 10959A
13B 10959B
13C 10959C
14 9913 0.0500% NAP No
17 11233A 0.0500% NAP No
18 11233B 0.0500% NAP No
19 11233C 0.0500% NAP No
28 7217 0.0500% NAP No
33 8902 0.0500% NAP No
34 9529 0.0500% NAP No
35 10216 0.0500% NAP No
37 8997 0.0500% NAP No
42 9865 0.0500% NAP No
43 7222 0.0500% NAP No
45 7223 0.0500% NAP No
45A 7223A
45B 7223B
51 4459A 0.0500% NAP No
52 4459B 0.0500% NAP No
</TABLE>
A-1
<PAGE> 545
<TABLE>
<CAPTION>
CONTROL LOAN MORTGAGE LOAN / PROPERTY NAME PROPERTY ADDRESS CITY ZIP ORIGINAL
NUMBER NUMBER LOAN STATE CODE BALANCE
SELLER
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
53 4459C PW Days Inn Shepherdsville 120 South Lakeview Drive Shepherdsville KY 40165 1,215,000
61 9430 PW Cayuga Village Mobile 9370 Niagara Falls Boulevard Niagara Falls NY 14304 4,250,000
Home Park
64 7220 PW 155 West Street 155 West Street Wilmington MA 01887 4,030,000
70 8686 PW 131 Spring Street 131-137 Spring Street New York NY 10012 3,651,000
72 10142 PW Jackson Professional 209-211 Gibson Street Leesburg VA 20176 3,600,000
74 7218 PW 377 Ballardvale &
315 New Boston Portfolio 3,415,000
74A 7218A PW 377 Ballardvale Street 377 Ballardvale Street Wilmington MA 01887
74B 7218B PW 315 New Boston Street 315 New Boston Street Woburn MA 01801
77 10593 PW Plimpton and Hills
Portfolio 3,200,000
77A 10593A PW 114-146 Kings Highway East 114-146 Kings Highway East Fairfield CT 06432
77B 10593B PW 1 Maxim Road 1 Maxim Road Hartford CT 06146
78 9133 PW 4444 West Bristol Road 4444 West Bristol Road Flint MI 48507 3,200,000
81 10851 PW RPM Warehouse 11150 N.W. 32nd Avenue Miami FL 33167 3,100,000
82 9583 PW Deere Road Warehouse 6392-6402-6412 Deere Road Syracuse NY 13206 3,040,000
Buildings
84 10065 PW SunTrust Centre 1890 University Drive Coral Springs FL 33071 2,962,500
91 10094 PW Congress Professional 1620 S. Congress Avenue Palm Springs FL 33437 2,650,000
Center III
92 10105 PW Keystone Building 3520 Fifth Avenue Pittsburgh PA 15213 2,650,000
93 10939 PW 4621 W. Napoleon 4621 W. Napoleon Metairie LA 70001 2,636,000
94 10762 PW Balboa Pointe Apartments 6626 Hayvenhurst Avenue Van Nuys CA 91406 2,625,000
98 7585 PW Burke Village Center 9570 Burke Road Burke VA 22015 2,565,000
103 9925 PW Eckerds - Gloversville 178 North Main Street Gloversville NY 12078 2,428,387
109 10003 PW CVS - Murfreesboro 607 Southeast Broad Street Murfreesboro TN 37130 2,187,876
110 7592 PW La Quinta Gardens 4505 Aldine Mail Route Houston TX 77039 2,165,000
111 7042 PW Urban Outfitters Ann Arbor 231-33 S. State Street Ann Arbor MI 48104 2,100,000
113 8988 PW South Meadows 9475 Double R Boulevard Reno NV 89511 2,000,000
116 9998 PW Esquire Apartments 3102 Buford Highway Atlanta GA 30329 1,982,000
118 8574 PW Falcon Cove Apartments 13300 Biscayne Dr. Homestead FL 33033 1,950,000
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN MORT- NOTE CUT-OFF MONTHLY ORIGINAL REMAIN- SCHED- STATED CALCU-
NUMBER NUMBER GAGE RATE DATE DATE DEBT TERM TO ING TERM ULED ORIGINAL LATED
BALANCE SERVICE MATURITY TO MATURITY AMORT- ORIGINAL
PAYMENT / ARD MATURITY DATE IZATION AMORT-
(MONTHS) / ARD TERM IZATION
(MONTHS) (MONTHS) TERM
(MONTHS)
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
53 4459C 7.8000% 07/16/98 1,183,923 9,217.16 120 96 08/01/08 300 300
61 9430 8.8000% 12/30/99 4,235,847 33,586.65 120 113 01/01/10 360 360
64 7220 8.5500% 11/12/99 4,014,098 31,130.13 120 112 12/01/09 360 360
70 8686 7.8500% 12/15/99 3,635,391 26,408.96 120 113 01/01/10 360 360
72 10142 8.9000% 06/07/00 3,598,882 28,707.76 120 119 07/01/10 360 360
74 7218 8.5500% 11/12/99 3,401,525 26,379.50 120 112 12/01/09 360 360
74A 7218A
74B 7218B
77 10593 8.5000% 04/06/00 3,195,664 24,605.23 120 117 05/01/30 360 360
77A 10593A
77B 10593B
78 9133 9.1500% 01/28/00 3,191,269 26,094.05 120 114 02/01/30 360 360
81 10851 8.6400% 06/16/00 3,098,919 24,144.57 120 119 07/01/10 360 360
82 9583 9.1500% 02/24/00 3,034,181 24,789.34 120 115 03/01/10 360 360
84 10065 8.4500% 03/13/00 2,956,569 22,674.17 120 116 04/01/10 360 360
91 10094 8.5000% 05/10/00 2,647,403 20,376.21 120 118 06/01/10 360 360
92 10105 8.5000% 02/29/00 2,643,761 20,376.21 120 115 03/01/10 360 360
93 10939 8.7100% 05/30/00 2,633,568 20,662.16 120 118 06/01/10 360 360
94 10762 8.3500% 03/28/00 2,619,596 19,905.59 120 116 04/01/10 360 360
98 7585 8.7000% 03/14/00 2,556,523 21,000.92 120 116 04/01/10 300 300
103 9925 8.9300% 02/02/00 2,409,906 22,073.16 232 227 07/01/19 232 232
109 10003 8.7300% 03/08/00 2,178,865 18,409.00 238 234 02/01/20 238 238
110 7592 8.2500% 09/23/99 2,153,314 16,264.92 120 110 10/01/09 360 360
111 7042 8.9500% 11/01/99 2,091,391 16,821.58 120 111 11/01/09 360 360
113 8988 9.0000% 12/30/99 1,993,702 16,092.45 120 113 01/01/10 360 360
116 9998 8.6000% 02/10/00 1,977,474 15,380.55 120 115 03/01/10 360 360
118 8574 8.7000% 12/29/99 1,943,325 15,271.07 120 113 01/01/10 360 360
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN CALCULATED LOAN CROSS ANTICI- DEFEASE DEFEASE OWNERSHIP INTEREST MASTER
NUMBER NUMBER REMAINING BALANCE COLLATER- PATED START DATE END DATE INTEREST ACCRUAL SERVICING
AMORT- AT ALIZED REPAY- METHOD FEE RATE
IZATION MATURITY / (MORTGAGE MENT DATE
TERM ARD LOAN GROUP)
(MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
53 4459C 276 995,883 Yes (d) NAP 09/01/03 01/31/08 Fee Simple Actual/360 0.0500%
61 9430 353 3,871,212 No NAP 01/01/04 12/31/09 Fee Simple Actual/360 0.0500%
64 7220 352 3,651,275 No NAP 12/01/03 11/30/09 Fee Simple Actual/360 0.0500%
70 8686 353 3,253,564 No NAP 01/01/04 12/31/09 Fee Simple Actual/360 0.0500%
72 10142 359 3,286,343 No NAP 07/01/04 06/30/10 Leasehold Actual/360 0.0500%
74 7218 352 3,094,070 No NAP 12/01/03 11/30/09 Actual/360 0.0500%
74A 7218A Fee Simple
74B 7218B Fee Simple
77 10593 357 2,895,521 No 05/01/10 05/01/04 01/31/10 Actual/360 0.0500%
77A 10593A Fee Simple
77B 10593B Fee Simple
78 9133 354 2,936,114 No 02/01/10 09/01/02 01/31/10 Fee Simple Actual/360 0.0500%
81 10851 359 2,813,745 No NAP 07/01/04 06/30/10 Fee Simple Actual/360 0.0500%
82 9583 355 2,790,375 No NAP 03/01/04 02/28/10 Fee Simple Actual/360 0.0500%
84 10065 356 2,677,138 No NAP 04/01/04 03/31/10 Fee Simple Actual/360 0.0500%
91 10094 358 2,397,342 No NAP 06/01/04 05/31/10 Fee Simple Actual/360 0.0500%
92 10105 355 2,397,968 No NAP 03/01/04 02/28/10 Fee Simple Actual/360 0.0500%
93 10939 358 2,395,903 No NAP 09/01/02 05/31/10 Fee Simple Actual/360 0.0500%
94 10762 356 2,366,731 No NAP 09/01/02 03/31/10 Fee Simple Actual/360 0.0500%
98 7585 296 2,155,923 No NAP 04/01/04 03/31/10 Fee Simple Actual/360 0.0500%
103 9925 227 0 No NAP 03/01/04 06/30/19 Fee Simple Actual/360 0.0500%
109 10003 234 0 No NAP 04/01/04 01/31/20 Fee Simple Actual/360 0.0500%
110 7592 350 1,948,186 No NAP 10/01/03 09/30/09 Fee Simple Actual/360 0.0500%
111 7042 351 1,919,184 No NAP 12/01/03 10/31/09 Fee Simple Actual/360 0.0500%
113 8988 353 1,829,671 No NAP 01/01/04 12/31/09 Fee Simple Actual/360 0.0500%
116 9998 355 1,797,550 No NAP 09/01/02 02/28/10 Fee Simple Actual/360 0.0500%
118 8574 353 1,772,293 No NAP 01/01/04 12/31/09 Fee Simple Actual/360 0.0500%
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN YIELD CTL RELATED GUARANTOR RATED CTL LEASE
NUMBER NUMBER MAINTENANCE LOAN CREDIT PARTY ENHANCEMENT
CALCULATION TENANT POLICY
METHOD
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
53 4459C NAP No
61 9430 NAP No
64 7220 NAP No
70 8686 NAP No
72 10142 NAP No
74 7218 NAP No
74A 7218A
74B 7218B
77 10593 NAP No
77A 10593A
77B 10593B
78 9133 NAP No
81 10851 NAP No
82 9583 NAP No
84 10065 NAP No
91 10094 NAP No
92 10105 NAP No
93 10939 NAP No
94 10762 NAP No
98 7585 NAP No
103 9925 NAP Yes Fay's Eckerd JC Penney CO. No
Incorporated Corporation CVS
109 10003 NAP Yes Hook - CVS Corporation Corporation No
SupeRx, Inc.
110 7592 NAP No
111 7042 NAP No
113 8988 NAP No
116 9998 NAP No
118 8574 NAP No
</TABLE>
A-2
<PAGE> 546
SCHEDULE OF PWRES MORTGAGE LOANS
<TABLE>
<CAPTION>
CONTROL LOAN MORTGAGE LOAN / PROPERTY NAME PROPERTY ADDRESS CITY ZIP ORIGINAL
NUMBER NUMBER LOAN STATE CODE BALANCE
SELLER
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
122 10193 PW Avenue J Warehouse 1201 Avenue J East Grand Prairie TX 75050 1,900,000
125 8696 PW Texas Tech Office Building 6901 Quaker Avenue Lubbock TX 79423 1,850,000
127 10117 PW Des Moines Apartments
Portfolio 1,717,000
127A 10117A PW Capital Hills Apartments 816 East Lyon Street Des Moines IA 50309
127B 10117B PW Lyon Manor Apartments 906 East Lyon Street Des Moines IA 50316
127C 10117C PW Silhouette Apartments 3710 57th Street Des Moines IA 50310
128 10611 PW 69-75 Lehigh Avenue 69-75 Lehigh Avenue Paterson NJ 07503 1,700,000
131 8951 PW North Park Industrial 4436 Lawrence Street Las Vegas NV 89031 1,650,000
132 9381 PW Midwood Medical Center 1915 & 1917 Ocean Avenue Brooklyn NY 11230 1,630,000
144 9165 PW Jupiter Corporate Center 825 Highway One Jupiter FL 33477 1,400,000
147 9809 PW Carrington Heights & Plaza
Apts Portfolio 1,330,000
147A 9809A PW Carrington Heights 1855 Burnet Avenue Syracuse NY 13206
Apartments
147B 9809B PW Plaza Apartments 1108 E. Genesee Syracuse NY 13210
149 10326 PW Pond Street & North Court
Apts. Portfolio 1,300,000
149A 10326A PW Pond Street Apartments 800 Pond Street Syracuse NY 13208
149B 10326B PW North Court Apartments 1106 & 1109 First North Syracuse NY 13208
Street
151 7368 PW Paradise Palm Mobile Home 1360 North Dixie Downs St. George UT 84770 1,280,000
Park
163 9792 PW 85 Second Avenue 85 Second Avenue New York NY 10003 1,149,000
167 9370 PW St. James Apartments 1226 & 1314 James Avenue Waco TX 76706 1,100,000
170 9835 PW CVS - Lowell 1815 Middlesex Road Lowell MA 01851 1,083,750
174 10809 PW Ivory Garden Apartments 183-189 Ivory Foster Road Owego NY 13827 1,024,000
182 7221 PW 10 Jewel Drive 10 Jewel Drive Wilmington MA 01887 925,000
186 9369 PW Pine Street Apartments 3927-3931 Pine Street Philadelphia PA 19104 917,000
192 9510 PW Reading Business Center 8711 Reading Road Reading OH 45215 807,000
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN MORT- NOTE CUT-OFF MONTHLY ORIGINAL REMAIN- SCHED- STATED CALCU- CALCULATED
NUMBER NUMBER GAGE RATE DATE DATE DEBT TERM TO ING TERM ULED ORIGINAL LATED REMAINING
BALANCE SERVICE MATURITY TO MATURITY AMORT- ORIGINAL AMORT-
PAYMENT / ARD MATURITY DATE IZATION AMORT- IZATION
(MONTHS) / ARD TERM IZATION TERM
(MONTHS) (MONTHS) TERM (MONTHS)
(MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
122 10193 8.3500% 03/28/00 1,896,089 14,407.86 120 116 04/01/10 360 360 356
125 8696 8.4500% 11/04/99 1,842,492 14,159.40 120 112 12/01/09 360 360 352
127 10117 8.8000% 01/11/00 1,711,866 13,569.01 120 114 02/01/10 360 360 354
127A 10117A
127B 10117B
127C 10117C
128 10611 8.8000% 04/26/00 1,696,099 14,034.24 120 117 05/01/25 300 300 297
131 8951 8.3500% 09/30/99 1,641,334 12,512.09 120 110 10/01/09 360 360 350
132 9381 8.6500% 11/30/99 1,618,960 13,290.38 120 112 12/01/09 300 300 292
144 9165 8.4000% 10/19/99 1,393,323 10,665.73 120 111 11/01/09 360 360 351
147 9809 8.9500% 03/31/00 1,325,826 11,115.81 120 116 04/01/10 300 300 296
147A 9809A
147B 9809B
149 10326 8.4000% 04/03/00 1,298,182 9,903.89 120 117 05/01/10 360 360 357
149A 10326A
149B 10326B
151 7368 8.6000% 10/07/99 1,274,215 9,932.95 120 111 11/01/09 360 360 351
163 9792 9.4000% 01/14/00 1,146,069 9,577.69 120 114 02/01/10 360 360 354
167 9370 8.5000% 12/17/99 1,096,026 8,458.05 120 113 01/01/10 360 360 353
170 9835 8.8500% 03/03/00 1,081,816 8,603.39 120 116 04/01/30 360 360 356
174 10809 8.5000% 04/20/00 1,022,613 7,873.67 120 117 05/01/10 360 360 357
182 7221 8.5500% 11/12/99 921,350 7,145.25 120 112 12/01/09 360 360 352
186 9369 8.6000% 11/30/99 910,726 7,445.83 120 112 12/01/09 300 300 292
192 9510 8.8000% 12/30/99 804,313 6,377.51 120 113 01/01/10 360 360 353
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN LOAN CROSS ANTICI- DEFEASE DEFEASE OWNER-SHIP INTEREST MASTER YIELD
NUMBER NUMBER BALANCE COLLATER- PATED START DATE END DATE INTEREST ACCRUAL SERVICING MAINTENANCE
AT ALIZED REPAY- METHOD FEE RATE CALCULATION
MATURITY / (MORTGAGE MENT DATE METHOD
ARD LOAN GROUP)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
122 10193 1,713,063 No NAP 04/01/04 03/31/10 Fee Simple Actual/360 0.0500% NAP
125 8696 1,672,347 No NAP 12/01/03 11/30/09 Fee Simple Actual/360 0.0500% NAP
127 10117 1,563,610 No NAP 02/01/04 01/31/10 Actual/360 0.0500% NAP
127A 10117A Fee Simple
127B 10117B Fee Simple
127C 10117C Fee Simple
128 10611 1,433,048 No 05/01/10 09/01/02 04/30/10 Fee Simple Actual/360 0.0500% NAP
131 8951 1,488,204 No NAP 10/01/03 09/30/09 Fee Simple Actual/360 0.0500% NAP
132 9381 1,368,652 No NAP 12/01/03 11/30/09 Fee Simple Actual/360 0.0500% NAP
144 9165 1,263,909 No NAP 11/01/03 10/31/09 Fee Simple Actual/360 0.0500% NAP
147 9809 1,125,452 No NAP 04/01/04 03/31/10 Actual/360 0.0500% NAP
147A 9809A Fee Simple
147B 9809B Fee Simple
149 10326 1,173,629 No NAP 05/01/04 04/30/10 Actual/360 0.0500% NAP
149A 10326A Fee Simple
149B 10326B Fee Simple
151 7368 1,160,817 No NAP 11/01/03 10/31/09 Fee Simple Actual/360 0.0500% NAP
163 9792 1,059,751 No NAP 02/01/04 01/31/10 Fee Simple Actual/360 0.0500% NAP
167 9370 995,288 No NAP 01/01/04 12/31/09 Fee Simple Actual/360 0.0500% NAP
170 9835 988,123 No 04/01/10 09/01/02 01/31/10 Fee Simple Actual/360 0.0500% NAP
174 10809 926,567 No NAP 09/01/02 04/30/10 Fee Simple Actual/360 0.0500% NAP
182 7221 838,072 No NAP 12/01/03 11/30/09 Fee Simple Actual/360 0.0500% NAP
186 9369 768,915 No NAP 12/01/03 11/30/09 Fee Simple Actual/360 0.0500% NAP
192 9510 735,075 No NAP 01/01/04 12/31/09 Fee Simple Actual/360 0.0500% NAP
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN CTL RELATED GUARANTOR RATED CTL LEASE
NUMBER NUMBER LOAN CREDIT PARTY ENHANCEMENT
TENANT POLICY
----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
122 10193 No
125 8696 No
127 10117 No
127A 10117A
127B 10117B
127C 10117C
128 10611 No
131 8951 No
132 9381 No
144 9165 No
147 9809 No
147A 9809A
147B 9809B
149 10326 No
149A 10326A
149B 10326B
151 7368 No
163 9792 No
167 9370 No
170 9835 No
174 10809 No
182 7221 No
186 9369 No
192 9510 No
</TABLE>
A-3
<PAGE> 547
EXHIBIT B
The Seller hereby represents and warrants, as of the Closing Date,
that:
(a) The Seller is a duly formed corporation, validly existing
and in good standing under the laws of the State of Delaware.
(b) The Seller 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 Purchaser, 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.
(d) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this Agreement by
the Seller, will not violate the Seller's certificate of incorporation or
by-laws 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 Seller 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
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.
(f) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the Seller from
entering into this Agreement or, in the Seller's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of the
Seller 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 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.
B-1
<PAGE> 548
(h) The transfer of the Mortgage Loans by the Seller to the
Purchaser, as contemplated herein, is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(i) The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
(j) The Seller will be solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
(k) After giving effect to its transfer of the Mortgage Loans
to the Purchaser, as provided herein, the value of the Seller's assets, either
taken at their present fair saleable value or at fair valuation, will exceed the
amount of the Seller's debts and obligations, including contingent and
unliquidated debts and obligations of the Seller, and the Seller will not be
left with unreasonably small assets or capital with which to engage in and
conduct its business.
(l) 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.
(m) No proceedings looking toward merger (except for the
merger of the Seller's parent Paine Webber Group Inc. into a subsidiary of UBS
AG), liquidation, dissolution or bankruptcy of the Seller are pending or
contemplated.
B-2
<PAGE> 549
EXHIBIT C
The Seller hereby represents and warrants, as of the Closing Date (or
as of such other date specified in the particular representation and warranty)
with respect to each Mortgage Loan, subject to the exceptions attached hereto as
Schedule C-1, that:
(1) Immediately prior to the transfer thereof by Seller to the
Purchaser and the assignment thereof to the Trustee, Seller
had good and marketable title to, and was the sole owner and
holder of, such Mortgage Loan, free and clear of any and all
liens, charges, encumbrances or any other ownership,
participation or other interests on, in or to such Mortgage
Loan (other than, in certain cases, the right of the Master
Servicer or a Sub-Servicer to master service or primary
service such Mortgage Loan). Seller has validly and
effectively conveyed to the Purchaser all legal and beneficial
interest in and to such Mortgage Loan free and clear of any
pledge, lien or security interest.
(2) The Seller has no knowledge of any material default (or
any event, circumstance or condition that would under the
Mortgage Loan documents be considered a material default) by a
related Borrower resulting from the material representations
and warranties made by such Borrower in the related Mortgage
Loan documents being untrue at the time of origination of the
related Mortgage Loan. Seller had full right and authority to
sell, assign and transfer such Mortgage Loan to the Purchaser;
and each Mortgage Loan is properly endorsed as provided in the
Pooling and Servicing Agreement, and such endorsement is
genuine.
(3) The information pertaining to such Mortgage Loan set forth
in the Mortgage Loan Schedule was true and correct, and met
the requirements of this Agreement and the Pooling and
Servicing Agreement, in all material respects as of the
Cut-off Date.
(4) Such Mortgage Loan was not, as of the Cut-off Date or at
any time since origination, more than thirty (30) days
delinquent in respect of any Scheduled P&I Payment required
thereunder, without giving effect to any applicable grace
period.
(5) Each Mortgage securing such Mortgage Loan constitutes a
legal, valid and, subject to the exceptions in paragraph 12
below, enforceable first lien upon the Borrower's interest in
the related Mortgaged Property, including, without limitation,
all buildings located thereon and all fixtures attached
thereto, subject only to (and such Mortgaged Property is free
and clear of all encumbrances and liens having priority over
the lien of such
C-1
<PAGE> 550
Mortgage, except for) (a) the lien of current real property
taxes and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and
other matters of public record specifically referred to in the
lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such
Mortgage Loan or approved after origination, which do not
materially and adversely affect the current use of the
Mortgaged Property, the security interest intended to be
provided by such Mortgage or the value of the Mortgaged
Property, (c) the rights of tenants (whether under ground
leases or space leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that
such tenants are performing under such leases), (d) exceptions
and exclusions specifically referred to in the lender's title
insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan, and
(e) if such Mortgage Loan is cross-collateralized with any
other Mortgage Loan, the lien of the Mortgage for such other
Mortgage Loan (the exceptions set forth in the foregoing
clauses (a), (b), (c), (d) and (e), collectively, "Permitted
Encumbrances"). Such Permitted Encumbrances do not materially
interfere with the security intended to be provided by the
related Mortgage(s), or materially and adversely affect the
current use or value of the related Mortgaged Property or the
current ability of such Mortgaged Property to generate Net
Operating Income sufficient to service the Mortgage Loan.
Except as contemplated by clause (e) of the second preceding
sentence, none of the Permitted Encumbrances are mortgage
liens that are senior to or pari passu with the lien of the
related Mortgage. With respect to personal property of the
related Borrower constituting part of the related Mortgaged
Property which is material to the value of the related real
estate constituting part of such Mortgaged Property, or which,
if no UCC financing statement were filed with respect to such
personal property, would result in a material impairment of
the security for the related Mortgage Loan (such personal
property is herein referred to as "Material Personal
Property"), (a) a UCC financing statement has been filed
and/or recorded in all places necessary to perfect a valid
security interest in the Material Personal Property; (b) an
assignment of such UCC financing statement has been executed
by the Seller in favor of the Trustee or in blank (which the
Trustee or its designated agent may complete and file in the
same filing office in which such UCC financing statement was
filed); and (c) any security agreement, chattel mortgage or
equivalent document related to and delivered in connection
with such Mortgage Loan establishes and creates a valid and,
subject to the exceptions in paragraph 12 below, enforceable
first lien and
C-2
<PAGE> 551
first priority security interest in the property of the
related Borrower described therein, subject to any purchase
money security interest or any security interest to secure a
line of credit or similar financing attaching subsequent to
the date of origination of such Mortgage Loan and of which
Seller has no actual (as opposed to constructive) knowledge.
(6) The lien of each related Mortgage is insured by an
American Land Title Insurance ("ALTA") lender's title
insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized
title insurance company or its subsidiary, insuring the
originator of such Mortgage Loan, its successors and assigns
(as sole insured), as to the first priority lien of the
Mortgage in the original principal amount of such Mortgage
Loan after all advances of principal, subject only to
Permitted Encumbrances (or, if a title insurance policy has
not yet been issued in respect of any Mortgage Loan, a policy
meeting the foregoing description is evidenced by a commitment
for title insurance "marked-up" at the closing of such
Mortgage Loan). 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
Seller's knowledge as of the Closing Date, no material claims
have been made thereunder and no claims have been paid
thereunder (and Seller has not received notice of any material
claims having been made or paid thereunder). No holder of the
related Mortgage has done, by act or omission, anything that
would, and Seller has no actual knowledge of any other
circumstance that would, materially impair the coverage under
such title policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Purchaser, such
title policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of the
Purchaser without the consent of or notice to the insurer. To
Seller's knowledge, the insurance company that issued (or is
obligated to issue) such title policy is qualified to do
business in the jurisdiction in which the related Mortgaged
Property is located. Such policy contains no material
exclusion for or affirmatively insures (except for any
Mortgaged Property located in jurisdictions where such
affirmative insurance is not available) (a) access to a
physically open street, (b) encroachments of any part of the
buildings thereon over easements, (c) that the area shown on
the survey is the same as the property legally described in
the Mortgage, (d) that the Mortgaged Property constitutes one
or more separate tax parcels containing no other real
property, and (e) that, to the extent the Mortgaged Property
consists of more than one parcel used as a single tract of
real property (other than separate parcels with respect to
Mortgage Loans secured by more than one property), such
parcels are
C-3
<PAGE> 552
contiguous. The Mortgage has been properly recorded on the
related Mortgaged Property and all applicable Mortgage
recording taxes have been paid.
(7) Neither Seller nor, to Seller's knowledge, any prior
holder of such Mortgage Loan has waived any material default,
breach, violation or event of acceleration existing under the
related Mortgage or Mortgage Note, except that certain
post-closing conditions or requirements that would either be
reasonably acceptable to a prudent commercial lender or that
would not otherwise materially and adversely affect the
security intended to be provided for such Mortgage Loan, may
not have yet been completed.
(8) As of the Closing Date there is no valid offset, defense,
counterclaim or right to rescission, including the defense of
usury, with respect to any of the Mortgage Note, Mortgage or
other agreements executed in connection therewith (except in
each case with respect to any excess interest on an ARD Loan
after the related Anticipated Repayment Date and any Default
Interest, late charges, Prepayment Premiums and Yield
Maintenance Charges).
(9) As of the Cut-off Date and as of the Closing Date, to
Seller's knowledge, there is no proceeding pending or
threatened for condemnation affecting all or a material
portion of the related Mortgaged Property. To the Seller's
knowledge based upon a site inspection conducted in connection
with the origination of the Mortgage Loan and a review of the
related engineering report, there is no unremedied damage at
the related Mortgaged Property that materially and adversely
affects the use, operation, or value of such Mortgaged
Property (except in such case where an escrow of funds or
letter of credit exists in an amount at least equal to 125% of
the amount estimated to be sufficient to effect the necessary
repairs and maintenance).
(10) At origination, such Mortgage Loan complied in all
material respects with all requirements of federal, state and
local laws (including, without limitation, laws pertaining to
usury) relating to the origination, funding and terms of such
Mortgage Loan or, to the best of Seller's knowledge, servicing
of such Mortgage Loan.
(11) The proceeds of such Mortgage Loan have been fully
disbursed, and there is no requirement for future advances
thereunder.
C-4
<PAGE> 553
(12) The Mortgage and Mortgage Note for such Mortgage Loan and
all other documents to which the related Borrower is a party
and which evidence or secure such Mortgage Loan, are each the
legal, valid and binding obligations of the related Borrower
(subject to any non-recourse provisions and any applicable
state anti-deficiency legislation), enforceable in accordance
with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, redemption,
fraudulent conveyance, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally and
by general principles of equity, and except that certain
provisions of such Mortgage Loan documents are or may be
unenforceable in whole or in part under applicable state or
federal laws, but neither the application of any such laws to
any such provisions nor the inclusion of any such provisions
renders any of the Mortgage Loan documents invalid as a whole,
and such Mortgage Loan documents taken as a whole are
enforceable to the extent necessary and customary for the
practical realization of the rights and benefits afforded
thereby.
(13) The related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting
the requirements of such Mortgage Loan and having a
claims-paying or financial strength rating of at least A:VIII
from A.M. Best Company or "A" (or the equivalent) from Moody's
Investor Service, Inc., Standard & Poor's Rating Services, or
its equivalent, in an amount at least equal to the lesser of
the outstanding principal balance of such Mortgage Loan and
100% of the full replacement cost of the improvements located
on the related Mortgaged Property, on a full replacement cost
basis (or without deduction for depreciation)(excepting,
however, each Mortgaged Property which is a multifamily mobile
home park without material improvements), with (if applicable)
an appropriate endorsement to avoid the application of any
co-insurance provisions with respect to such Mortgaged
Property, and 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 an amount customarily required
by institutional lenders, and (except if such Mortgaged
Property is operated as a mobile home park) by business
interruption or rental loss insurance in an amount equal to
the gross rentals for at least a 12-month period (or an 18
month period for a Mortgaged Property which is not an office,
retail, self storage, industrial, multifamily mobile home park
or mixed use of the foregoing). An architectural or
engineering consultant has performed an analysis of each of
the Mortgaged Properties located in seismic zones 3 or 4 which
is listed on Schedule C-2 in order to evaluate the structural
and seismic condition of such property, for the sole purpose
of
C-5
<PAGE> 554
assessing the probable maximum loss ("PML") for the property
in the event of an earthquake. In such instance the PML was
based on a return period of not less than 100 years, an
exposure period of 50 years and a 10% probability of
excedence. If the resulting report concluded the PML would
exceed 20% of the amount of the replacement costs of the
improvements, earthquake insurance on such Mortgaged Property
was obtained by an insurer rated at least A:VIII by A.M. Best
Company or "A" (or the equivalent) from Moody's Investor
Services, Inc., Standard & Poor's Rating Services or its
equivalent. In addition, no such insurance policy provides
that it may be canceled, endorsed, altered or reissued to
effect a change in coverage unless such insurer shall have
first given the mortgagee under such Mortgage Loan thirty (30)
days' prior written notice, and no notice has been received as
of the date hereof; all premiums required to be paid on such
policy have been paid; all such policies contain a standard
mortgagee clause for the benefit of the holder of the related
Mortgage Loan; and the related Mortgage obligates the related
Borrower to maintain all such insurance and, at the related
Borrower's failure to do so, authorizes the mortgagee under
such Mortgage Loan to purchase such insurance at the related
Borrower's cost and expense and to seek reimbursement from
such Borrower. Further, all insurance coverage required under
the related Mortgage is in full force and effect with respect
to the related Mortgaged Property, and if the related
Mortgaged Property is located in a federally designated
special flood hazard area, the related Borrower is required to
maintain flood insurance in respect thereof (exclusive of any
parking lot or unused or undeveloped portion thereof) to the
extent available under the National Flood Insurance Act of
1968. To Seller's knowledge, the insurer issuing each of the
foregoing insurance policies is qualified to write insurance
in the jurisdiction where the related Mortgaged Property is
located. Subject to clause (I) of paragraph 51 below with
respect to ground lease properties, any insurance proceeds in
respect of a casualty loss or taking, will be applied either
to (A) the repair or restoration of all or part of the related
Mortgaged Property or (B) to the payment of the outstanding
principal balance of such Mortgage Loan together with any
accrued interest thereon, except that in the case of a
ground-leased property casualty and condemnation proceeds are
required to be paid first to the owner of the fee interest in
the related property in accordance with terms of the related
ground lease and then in accordance with the related Mortgage.
(14) Except in the case of the Mortgage Loans identified on
Schedule C-1, where a limited environmental screen or
assessment was obtained (collectively, the "Limited
Environmental Report Loans"), and in the case of the Mortgage
Loans identified on
C-6
<PAGE> 555
Schedule C-1, where no environmental screen or assessment was
obtained (collectively, the "Waived Environmental Report
Loans"), but for which the related Mortgaged Property for such
Limited Environmental Report Loans and Waived Environmental
Report Loans, is insured under a policy of insurance, subject
to certain per occurrence and aggregate limits and a
deductible, against possible losses arising from certain
environmental circumstances or conditions, a "Phase I"
environmental site assessment meeting ASTM requirements (or an
update of a previously conducted assessment) was performed by
a licensed third-party professional experienced in
environmental matters with respect to the related Mortgaged
Property within the 24-month period prior to the Closing Date,
and in the case of the Mortgage Loans identified on Schedule
C-1, a "Phase II" environmental site assessment was performed
in connection with the origination of each such loan. Either
(x) the related environmental reports did not reveal any known
circumstances or conditions with respect to the related
Mortgaged Property that rendered such Mortgaged Property, at
the date(s) of such environmental report(s), in material
violation of any applicable environmental laws or (y) if any
such environmental report did 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 either (i) the expenditure of funds necessary
to effect such remediation is not material in relation to the
outstanding principal balance of the related Mortgage Loan, or
(ii) a sufficient escrow of funds exists for purposes of
effecting such remediation (and the Borrower has covenanted in
the Mortgage Loan documents to perform such remediation), or
(iii) 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 recommended by
the environmental site assessment. Seller has no knowledge of
any environmental condition or circumstance affecting such
Mortgaged Property and not disclosed in the related
environmental report(s), which would impact such Mortgaged
Property's soil or groundwater quality or require remediation
by the related Borrower under, or otherwise would be a
material violation of, applicable environmental law. All such
environmental assessments that were in the possession of the
Seller and that relate to a Mortgaged Property which is
insured by an environmental insurance policy have been
delivered to or disclosed to the environmental insurance
carrier issuing such policy prior to the issuance of such
policy. The related Mortgage or other loan documents contain
covenants on the part of the related Borrower requiring its
compliance with applicable federal and state
C-7
<PAGE> 556
environmental laws and regulations in respect of the related
Mortgaged Property. To Seller's actual knowledge, in reliance
on such environmental reports, each Mortgaged Property is in
material compliance with all applicable federal, state and
local laws pertaining to the environmental hazards other than
as disclosed in such environmental reports, and to Seller's
actual knowledge, Seller has received no notice of violation
of such laws issued by any governmental agency or authority,
which would cause the Mortgaged Property not to be in
compliance with all federal, state and local laws pertaining
to the environmental hazards. Each Borrower represents and
warrants in the related Mortgage Loan documents that except as
set forth in certain environmental reports and to its
knowledge there is not located on the related Mortgaged
Property and the Borrower will not use, cause or permit to
exist on the related Mortgaged Property any hazardous
materials in any manner which violates federal, state or local
laws, ordinances, regulations or orders relating to the
environment. 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, penalties, fines, expenses and
claims of any kind whatsoever (including reasonable 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 the Borrower in connection with such Mortgage Loan.
(15) Except as indicated on the Mortgage Loan Schedule, such
Mortgage Loan is not cross-collateralized with other Mortgage
Loans in the Mortgage Pool. Such Mortgage Loan is not
cross-collateralized with a mortgage loan outside the Mortgage
Pool. Each Mortgage securing a Cross-Collateralized Mortgage
Loan or other Mortgage Loan secured by more than one related
Mortgaged Property secures an amount no less than the
aggregate original loan balance of the related Mortgage Loan
combined with that of any other Mortgage Loans in the related
Cross-Collateralized Group, if any; provided, that in the case
of each Mortgage on a related Mortgaged Property located in
Florida or New York, the Mortgage secures an amount no less
than 150% of the allocated loan amount for such Mortgaged
Property.
(16) The terms of the Mortgage Note and Mortgage for such
Mortgage Loan have not been impaired, waived, altered or
modified in any material respect, except those that occurred
prior to the Cut-off Date by written instrument which is
specifically set forth in the related Mortgage File and which
is duly recorded to the extent required to perfect, maintain,
or continue the validity and
C-8
<PAGE> 557
priority of the Mortgage Loan Documents. No Mortgage has been
satisfied, canceled, rescinded or subordinated, no material
portion of the related Mortgaged Property has been released,
and no instrument has been executed that would effect any such
satisfaction, cancellation, subordination, rescission or
release.
(17) There are no delinquent insurance premiums (to the best
knowledge of Seller), or delinquent taxes, water charges,
sewer rents or other similar outstanding charges affecting the
related Mortgaged Property that are not otherwise covered by
an escrow of funds sufficient to pay such charges.
(18) The interest of the Borrower in the related Mortgaged
Property consists of a fee simple and/or, with respect to the
Mortgage Property identified on the Mortgage Loan Schedule as
Jackson Professional Building, leasehold estate or interest in
real property and the improvements thereon.
(19) Such Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
(20) The assignment of the related Mortgage to the Purchaser
has been duly authorized, executed and delivered by Seller, is
in a recordable form and constitutes the legal, valid, binding
and, subject to the exceptions in paragraph 12 above,
enforceable and full assignment of such Mortgage from the
relevant assignor to the Purchaser, and the assignment of the
related Assignment of Leases, if any, or of any other
agreement executed in connection with such Mortgage Loan to
the Purchaser constitutes the legal, valid, binding and,
subject to the exceptions in paragraph 12 above, enforceable
and full assignment thereof from the relevant assignor to the
Purchaser.
(21) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such 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 escrows and deposits are conveyed
hereunder to the Purchaser. Any and all requirements under
each Mortgage Loan as to completion of any material
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 the funds so escrowed have not been
released.
C-9
<PAGE> 558
(22) As of the date of origination of such Mortgage Loan and
as of the Closing Date, the related Mortgaged Property was and
is free and clear of any mechanics' and materialmen's liens or
liens in the nature thereof which create a lien prior to that
created by the related Mortgage(s).
(23) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged
Property at the time of origination of such Mortgage Loan lies
outside the boundaries and building restriction lines of such
property to any material extent (except to the extent that it
may constitute a legal non-conforming use or structure or
title insurance was provided with respect thereto); no
improvements on adjoining properties encroach upon such
Mortgaged Property (except to the extent not material or
covered by title insurance); and no improvement located on or
forming part of such Mortgaged Property is in material
violation of any applicable zoning laws or ordinances and any
non-material violation does not materially and adversely
affect the use, operation or value of such Mortgaged Property
(provided, however, that, although it does not constitute a
violation of law, the improvements on such Mortgaged Property
may constitute a legal non-conforming use or structure).
(24) To the extent required under applicable law as of the
date of origination and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such
Mortgage Loan was authorized to do business in the
jurisdiction in which the related Mortgaged Property is
located at all times when it originated and held the Mortgage
Loan.
(25) With respect to each Mortgage Loan: (a) since the date of
origination of the such Mortgage Loan, there has been no
declaration by the Seller of an event of acceleration under
the related Mortgage or Mortgage Note; (b) there is no
existing material default or breach under the related
Mortgage, Mortgage Note or Assignment of Leases; (c) to
Seller's knowledge there has not been a material default or
breach under the related Mortgage, Mortgage Note or Assignment
of Leases since the origination of the related Mortgage Loan;
and (d) Seller has not, without having reviewed any public
records, received notice of any event (other than payments due
but not yet 30 days' delinquent) that, with the passage of
time or with notice and the expiration of any grace or cure
period, would constitute such a material default, breach or
event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach
or event of acceleration that specifically pertains to any
matter otherwise covered by any other representation and
warranty made by Seller
C-10
<PAGE> 559
in any other paragraph of this Exhibit C and provided,
further, that certain post-closing conditions or requirements
may not have yet been completed.
(26) If such Mortgage Loan is secured in whole or in part by
the interest of a Borrower under a Ground Lease and by the
related fee interest, such fee interest is encumbered by the
related Mortgage, and the related Mortgage does not by its
terms provide that it will be subordinated to the lien of any
mortgage or any other lien upon such fee interest.
(27) No Mortgage Loan contains any equity participation by the
lender, provide for any contingent or additional interest in
the form of participation in the cash flow of the related
Mortgaged Property or, except for ARD Loans, provide for the
negative amortization of interest. Neither Seller nor any
affiliate thereof has any obligation to make any capital
contributions to the Borrower under the Mortgage Loan. The
Mortgage Loan was not originated for the sole purpose of
financing the construction of incomplete improvements on the
related Mortgaged Property.
(28) No holder of such Mortgage Loan has, to Seller's
knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the
owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by the
Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement
of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by thirty (30) days the first Due Date under
the related Mortgage Note.
(29) To Seller's knowledge, based on due diligence customarily
performed in the origination of comparable mortgage loans, as
of the date of origination of such Mortgage Loan, (a)(i) the
related Borrower was in possession of all material licenses,
permits and authorizations required by applicable laws for its
ownership and occupancy of the related Mortgaged Property as
it was then operated (excepting those which any tenant must
possess for its occupancy and operations) and (ii) with
respect to each Mortgaged Property improved by a hotel or
health care facility, the related Borrower was in possession
of all material licenses, permits and authorizations required
by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated (excepting
those which any tenant must possess for its occupancy and
operations), and (b) all such licenses, permits and
authorizations were valid and in full force and effect. The
Mortgage Loan requires the related Borrower (if not an
individual)
C-11
<PAGE> 560
to be qualified to do business and for the Borrower to cause
the Mortgaged Property to be in material compliance with all
regulations, licenses, permits, zoning, and building laws.
(30) The related Mortgage or Mortgage Note, together with
applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph
12 above) such as to render the rights and remedies of the
holders thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(31) Such 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 (but without regard to the rule in
Treasury Regulation Section 1.860G-2(f)(2)). Any prepayment
premium and yield maintenance charges applicable to the
Mortgage Loan constitute "customary prepayment penalties"
within the meaning of Treasury Regulation Section
1.860G-1(b)(2).
(32) No fraud with respect to such Mortgage Loan has taken
place on the part of Seller or, to Seller's knowledge, on the
part of any originator, in connection with the origination of
such Mortgage Loan.
(33) The terms of such Mortgage Loan provide or, at lender's
option, permit, and the terms of the Pooling and Servicing
Agreement and any Sub-Servicing Agreement to which such
Mortgage Loan is subject provide for purposes of calculating
distributions on the Certificates and additional compensation
payable to the Master Servicer, the Special Servicer and any
related Sub-Servicer, that payments on and proceeds of such
Mortgage Loan will be applied to principal and interest at the
related Mortgage Rate (excluding, in the case of an ARD Loan
after its Anticipated Repayment Date, Additional Interest) due
and owing at the time such payments or proceeds are received,
prior to being applied to any Default Charges, assumption fees
and modification fees then due and owing.
(34) The origination, servicing and collection practices used
with respect to such Mortgage Loan have been in all material
respects legal and have met generally accepted servicing
standards utilized by institutional and commercial mortgage
lenders and loan servicers the main business of which is the
origination and servicing of similar commercial and
multifamily mortgage loans.
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<PAGE> 561
(35) There exists as part of the related Mortgage File an
Assignment of Leases (either as a separate instrument or
incorporated into the related Mortgage); and such Assignment
of Leases creates in favor of the holder, a valid, perfected
and (subject to the exceptions set forth in paragraph 12
above) enforceable lien of the same priority as the related
Mortgage, in the property and rights described therein;
provided that the enforceability of such lien is subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws affecting the enforcement of creditors' rights
generally, and by general principles of equity. Seller has the
full right to assign to the Purchaser such Assignment of
Leases and the lien created thereby as described in the
immediately preceding sentence. No Person other than the
Borrower owns any interest in any payments due under the
related leases. The related Mortgage or such Assignment of
Leases provides for the appointment of a receiver for rents or
allows the lender to enter into possession to collect rent or
provides for rents to be paid directly to the mortgagee in the
event of a default.
(36) At the time of origination of the related Mortgage Loan
the Mortgaged Property was not encumbered by, and without
having reviewed any public records since origination, Seller
has no actual knowledge (as opposed to constructive knowledge)
that the related Mortgaged Property is presently encumbered
by, any debt (excluding preferred equity and mezzanine debt)
other than the related Mortgage Loan or another Mortgage Loan.
(37) Subject to a one-time (or, in the case of certain
Mortgage Loans, a multiple-time) transfer right allowed to a
transferee reasonably acceptable to the lender in accordance
with certain provisions set forth in the related Mortgage, and
excluding transfers for estate planning purposes, transfers to
affiliates or family members, transfers for or other purposes
where no change of control occurs or such transfers which have
been pre-approved to transferees which otherwise have met the
Mortgage Loan Seller's underwriting criteria, the related
Mortgage contains a "due-on-sale" clause which provides for
the acceleration of, or permits the lender to accelerate, the
payment of the unpaid principal balance of such Mortgage Loan
if, without the prior written consent of the holder of the
Mortgage and/or the satisfaction of specified criteria set
forth in the related Mortgage Loan documents, either (a) the
related Borrower transfers ownership of the related Mortgaged
Property subject to such Mortgage or (b) any controlling
interest in the related Borrower is directly or indirectly
transferred or sold. The related Mortgage requires the related
Borrower to pay all of the lender's reasonable fees and
expenses
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<PAGE> 562
relating to obtaining consent and approval, including the cost
of any REMIC opinion required under the related Mortgage Loan
documents.
(38) Seller has not waived any claims against the related
Borrower or any related guarantor under any non-recourse
exceptions contained in the related Mortgage Note.
(39) The related Mortgage and/or Mortgage Note provides either
(a) that the related Borrower and another individual shall be
fully and personally liable for all liabilities, costs,
losses, damages, expenses or claims suffered or incurred by
the lender or lender's successors or assigns by reason of or
in connection with and to the extent of, or (b) that the
related Mortgage Loan shall become a recourse obligation of
the Borrower and an individual guarantor in the event of, any
fraud or intentional material misrepresentation by the related
Borrower. Further, the related Mortgage and/or Mortgage Note
provides that the related Borrower and another individual
shall be fully and personally liable for all liabilities,
costs, losses, damages, expenses or claims suffered or
incurred by the lender or lender's successors or assigns by
reason of or in connection with and to the extent of the
related Borrower's misapplication or misappropriation of rents
(after the occurrence of a default), insurance proceeds or
condemnation awards, acts of waste (or failure to maintain and
repair the related Mortgage Property in accordance with the
Mortgage Loan documents to the extent not covered by insurance
proceeds made available to the lender) and breaches of
environmental covenants.
(40) If such Mortgage Loan is an ARD Loan, it commenced
amortizing on its initial scheduled Due Date, and it provides
that: (i) its Mortgage Rate will increase by at least two (2)
percentage points in connection with the passage of its
Anticipated Repayment Date; (ii) its Anticipated Repayment
Date is not less than seven (7) years following the
origination of such Mortgage Loan; (iii) no later than the
related Anticipated Repayment Date, the related Borrower is
required (if it has not previously done so) to enter into a
"lockbox agreement" whereby all revenue from the related
Mortgaged Property shall be deposited directly into a
designated account controlled by the Master Servicer; (iv) any
cash flow from the related Mortgaged Property that is applied
to amortize such Mortgage Loan following its Anticipated
Repayment Date shall, to the extent such net cash flow is in
excess of the Scheduled P&I Payment payable therefrom, be net
of budgeted and discretionary (servicer approved) capital
expenditures; and (v) if the property manager for the related
Mortgaged Property can be removed by or at the direction of
the lender on the basis of a debt service coverage
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<PAGE> 563
test, the subject debt service coverage ratio shall be
calculated without taking account of any increase in the
related Mortgage Rate on such Mortgage Loan's Anticipated
Repayment Date.
(41) At origination of such Mortgage Loan, neither the related
Borrower nor any related guarantor was, to Seller's knowledge
(based on customary and usual due diligence conducted by
prudent institutional commercial mortgage lenders), a debtor
in any pending state or federal bankruptcy or insolvency
proceeding. Furthermore, at the Closing Date, without having
reviewed any public records, Seller has no knowledge that the
related Borrower was a debtor in any pending state or federal
bankruptcy or insolvency proceeding.
(42) The servicing and collection practices used with respect
to such Mortgage Loan have in all material respects been legal
and met customary standards used by institutional lenders with
respect to comparable mortgage loans.
(43) (a) Without having reviewed any public records since
origination, Seller has no knowledge of any pending litigation
or other pending legal proceedings involving the related
Borrower or the related Mortgaged Property that can reasonably
be expected to materially interfere with the security intended
to be provided by the related Mortgage, the current use of the
related Mortgaged Property, or the current ability of the
Mortgaged Property to generate net cash flow sufficient to
service the Mortgage Loan.
(b) Without having reviewed any public records, Seller has no knowledge
of any pending governmental investigations involving the related Borrower or the
related Mortgaged Property that can reasonably be expected to materially
interfere with the security intended to be provided by the related Mortgage, the
current use of the related Mortgaged Property, or the current ability of the
Mortgaged Property to generate net cash flow sufficient to service the Mortgage
Loan.
(44) If such Mortgage Loan had a Cut-off Date Balance greater
than $5,000,000, the related Borrower has provided in its
organizational documents and/or covenanted in the Mortgage
Loan documents that it is a "single purpose entity". For
purposes of this representation, "single purpose entity" shall
mean an entity, other than an individual, which is limited in
its purpose by its organization documents and/or by the terms
of the related Mortgage Loan documents to owning and operating
a single property or group of properties, and which is not
permitted by its organization documents and/or by the related
Mortgage Loan documents to engage in any business unrelated to
such property and its financing, have any material assets
other than those related
C-15
<PAGE> 564
to its interest in the related Mortgaged Property or its
financing, or have any indebtedness prohibited under the
related Mortgage Loan. Furthermore, if such Mortgage Loan had
a Cut-off Date Balance greater than $7,500,000, the related
Borrower has provided in its organizational documents and/or
covenanted in the Mortgage Loan documents that it shall
maintain its own books, records and accounts, in each case
which are separate and apart from the books and records and
accounts of any other person, conduct its business in its own
name, not guarantee or assume the debts or obligations of any
other person, not commingle its assets or funds with those of
any other person, transact business with affiliates on an
arm's length basis and hold itself out as being a legal
entity, separate and apart from any other person. To Seller's
knowledge, at the time of origination of such Mortgage Loan,
the related Borrower was in compliance with the aforementioned
provisions/covenants.
(45) Except in cases where the related Mortgage Note or the
related Mortgage provide for (a) a substitution of
governmental securities for such Mortgaged Properties in a
defeasance, (b) a release of a portion of the related
Mortgaged Property, which portion was not considered material
for purposes of underwriting the Mortgage Loan, or (c) a
release of a portion of the related Mortgaged Property
conditioned upon the satisfaction of certain underwriting and
legal requirements, property performance requirements and/or
the payment of a release price or a partial defeasance,
neither the related Mortgage Note nor the related Mortgage
requires the lender to release all or any material portion of
the related Mortgaged Property from the lien of the related
Mortgage except upon payment in full of all amounts due under
the related Mortgage Loan.
(46) Such Mortgage Loan does not permit the related Mortgaged
Property to be encumbered subsequent to the date of
origination of such Mortgage Loan by any lien junior to or of
equal priority with the lien of the related Mortgage without
the prior written consent of the holder thereof. Except in the
case of the Mortgaged Property identified on the Mortgage Loan
Schedule as Paradise Palm Mobile Home, the Seller has not
consented to the encumbrance of the related Mortgage Property
by any lien junior to or of equal priority with the lien of
the related Mortgage.
(47) With respect to any Mortgage Loan that is a Defeasance
Loan, the related Mortgage Note or Mortgage provides that the
Defeasance Option is not exercisable prior to a date that is
at least two (2) years following the Startup Day for REMIC I
(or, if such Mortgage Loan is an asset of a Loan REMIC, for
such Loan
C-16
<PAGE> 565
REMIC). In addition, each Mortgage loan that is a Defeasance
Loan permits defeasance (i) only with substitute collateral
constituting "government securities" within the meaning of
Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount sufficient
to make all scheduled payments under the Mortgage Note when
due, as certified by an independent certified public
accountant and (ii) to Seller's knowledge, only for the
purpose of facilitating the disposition of mortgaged real
property and not as part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate
mortgages.
(48) If the Mortgage Loan permits defeasance, then the related
Mortgage or other related loan document provides that the
related Borrower shall (a) pay all Rating Agency fees
associated with defeasance (if Rating Agency approval is a
specific condition precedent thereto) and all other reasonable
expenses associated with defeasance, including, but not
limited to, accountant's fees and opinions of counsel, or (b)
provide all opinions required under the related loan
documents, including, if applicable, a REMIC opinion, and any
a applicable rating agency letters confirming no downgrade or
qualification of ratings on any classes in the transaction and
that the related Mortgage is fully enforceable in accordance
with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws affecting the
enforcement of creditors' rights generally, and by general
principles of equity).
(49) If the Mortgage in respect of any Mortgage Loan is a deed
of trust, (a) a trustee, duly qualified under applicable law
to serve as such, is properly designated and serving under
such Mortgage, and (b) except in connection with a trustee's
sale after default by the related Borrower, no fees or
expenses are payable to such trustee by Seller or any
subsequent mortgagee.
(50) The related Mortgage Note is not secured by any
collateral that is not included in the Trust Fund.
(51) If such Mortgage Loan is secured by the interest of the
related Borrower as a lessee under a Ground Lease covering all
or any material portion of the related Mortgaged Property, but
not by the related fee interest in such Mortgaged Property or
portion thereof:
(a) Such Ground Lease was in full force and effect and, to Seller's
knowledge, no default existed under such Ground Lease nor did any
estoppel from the related ground lessor indicate a material incipient
default nor is there any existing condition which, but for the passage
of time or giving of notice
C-17
<PAGE> 566
or both would result in a default; Seller has provided the ground
lessor with notice of its lien in accordance with the terms of such
Ground Lease; and, as of the Closing Date, Seller has not received
written notice of any, and to Seller's knowledge there is no, default
under such Ground Lease;
(b) Either (1) the related ground lessor has subordinated its interest
in the related Mortgaged Property to the interest of the holder of the
Mortgage Loan or (2) the related ground lessor has granted the holder
of the Mortgage Loan the right to written notice of and the right to
cure any default or breach by the ground lessee, including, when
necessary, sufficient time to gain possession of the interest of the
lessee under the Ground Lease through legal proceedings or to take
other action so long as the Seller or its assignee is proceeding
diligently;
(c) Upon the foreclosure of such Mortgage Loan or acceptance of a deed
in lieu thereof, the related Ground Lease is assignable to the lender
under such Mortgage Loan and its assigns without the consent of the
ground lessor thereunder;
(d) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease, or an estoppel letter or other agreement
received by the originator of such Mortgage Loan from the ground
lessor, permits the interest of the lessee thereunder to be encumbered
by the related Mortgage; such Ground Lease does not restrict the use of
the related Mortgaged Property by such lessee, its successors or
assigns, in a manner that would materially, adversely affect the
security provided by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its
recordation, with the exception of written instruments which are a part
of the related Mortgage File;
(e) 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;
(f) Such Ground Lease, or an estoppel letter or other agreement
received by the originator of such Mortgage Loan from the ground
lessor, provides that no notice of termination given under such Ground
Lease is effective against the holder unless a copy has been delivered
to such lender in the manner described in such Ground Lease;
(g) Such Ground Lease, or an estoppel letter or other agreement
received by the originator of such Mortgage Loan from the ground
lessor, requires the ground lessor to enter into a new lease with the
holder of such Mortgage Loan upon termination of such Ground Lease for
any reason, including rejection of such Ground Lease in a bankruptcy
proceeding;
C-18
<PAGE> 567
(h) Such Ground Lease has an original term (or an original term plus
one or more optional renewal terms, which, under all circumstances, may
be exercised, and will be enforceable, by the holder of such Mortgage
Loan if it becomes the owner of such leasehold interest) that extends
not less than the later to occur of (i) ten (10) years beyond the
stated maturity of or Anticipated Repayment Date for such Mortgage Loan
or (ii) ten (10) years beyond the amortization period of such Mortgage
Loan;
(i) Under the terms of such Ground Lease, or an estoppel letter or
other agreement received by the originator of the Mortgage Loan from
the ground lessor, and the related Mortgage, taken together, any
related insurance proceeds or condemnation proceeds (other than in
respect of a total or substantially total loss or taking) will be
applied either (1) to the repair or restoration of all or part of the
related Mortgaged Property, with the lender or a trustee appointed by
it having the right to hold and disburse such proceeds as the repair or
restoration progresses or (2) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued
interest thereon. Under the terms of the Ground Lease and the related
Mortgage, any insurance proceeds or condemnation awards in respect of a
total or substantially total loss or taking will be applied first to
the payment of the outstanding principal and interest on the Mortgage
Loan (except as otherwise provided by applicable law);
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender; and
(k) Such Ground Lease may not be amended, modified or, except in the
case of a default, canceled or terminated without the prior written
consent of the holder of the Mortgage Loan, and any such action without
such consent is not binding on such holder, provided that such holder
has provided the ground lessor with notice of its lien in accordance
with the terms of such Ground Lease.
(52) Neither the related Mortgage Note nor the related
Mortgage contain provisions limiting the right or ability of
Seller to assign, transfer and convey such documents.
(53) Each Mortgaged Property constitutes one or more complete
separate tax lots.
(54) Seller has inspected or caused to be inspected each
related Mortgaged Property within the twelve (12) months
preceding the Cut-off Date.
(55) The related Mortgage requires the related Borrower to
provide the holder of such Mortgage with quarterly and annual
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<PAGE> 568
operating statements, rent rolls and related information and
either quarterly or annual financial statements.
(56) The related Mortgage or other related loan document
provides that the Borrower shall pay any fees payable to a
Rating Agency in connection with the approval of an assumption
of the related Mortgage Loan (if such Mortgage or other
related loan document provides that Rating Agency approval is
a specific condition precedent thereto).
(57) The related Mortgage or Mortgage Note provides a grace
period for delinquent Monthly Payments no longer than ten (10)
days from the applicable Due Date.
(58) The Mortgage File contains 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 satisfies the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by
the Appraisal Standards Board of the Appraisal Foundation, all
as in effect on the date the Mortgage Loan was originated.
(59) As of the Closing Date, no group of the Seller's Mortgage
Loans representing more than 5% of the Initial Pool Balance
have the same Borrower or, to the Seller's knowledge, have
Borrowers that are affiliates of each other.
(60) To Seller's knowledge based on its inquiry and/or
engineering reports and/or appraisals obtained in connection
with the origination of each Mortgage Loan, each related
Mortgaged Property is served by public utilities, water and
sewer (or septic facilities).
(61) With respect to each Mortgage Loan which is identified as
a Credit Tenant Loan on Schedule C-1 attached hereto (each a
"Credit Tenant Loan"):
(A) the base rental payments under each related lease with respect to
such Credit Tenant Loan (the "Credit Lease") are equal to or greater than the
payments due under the Mortgage Loan documents executed in connection with the
related Credit Tenant Loan and are payable without notice or demand, and without
setoff, counterclaim, recoupment, abatement, reduction or defense and, subject
to the rights of the tenant under the Credit Lease (the "Tenant") to terminate
the Credit Lease or offset, abate, suspend or otherwise diminish any amounts
payable by the Tenant under the Credit Lease;
C-20
<PAGE> 569
(B) either (1) the obligations of the Tenant under each Credit Lease,
including, but not limited to, the obligation of the Tenant to pay fixed and
additional rent, are not affected by reason of any damage to or destruction of
any portion of the related Mortgaged Property (each a "Credit Tenant Property"),
any taking of such Credit Tenant Property or any part thereof, by condemnation
or otherwise or any prohibition, limitation, interruption, cessation,
restriction, prevention or interference of the Tenant's use, occupancy or
enjoyment of such Credit Tenant Property, (2) with respect to each Credit Lease
listed on Schedule C-1 hereto, a Lease Enhancement Policy has been obtained or
(3) with respect to condemnation, the Tenant is required to make a rejectable
purchase offer for a purchase price that is greater than the then outstanding
principal balance secured by the Mortgage;
(C) every obligation associated with managing, owning, developing and
operating the Credit Tenant Property, including, but not limited to, the costs
associated with utilities, taxes, insurance, capital and structural
improvements, maintenance and repairs is an obligation of the Tenant;
(D) no Borrower has any monetary obligations under any Credit Lease
that have not been met, or any material nonmonetary obligations under any Credit
Lease the breach of which would result in either the abatement of rent, a right
of setoff or the termination of the related Credit Lease;
(E) no Tenant can terminate any Credit Lease for any reason (except for
a default by the related Borrower under the Credit Lease) prior to the payment
in full of (1) the principal balance of the related Credit Tenant Loan, (2) all
accrued and unpaid interest on such Credit Tenant Loan and (3) any other sums
due and payable under such Credit Tenant Loan or, if a Tenant can terminate any
Credit Lease as a result of a casualty or condemnation, a Lease Enhancement
Policy has been obtained; or if a Tenant can terminate the Credit Lease with
respect to a condemnation, the Tenant must make a rejectable purchase offer for
a purchase price that is greater than the then outstanding principal balance
secured by the Mortgage;
(F) if a Tenant assigns its Credit Lease or sublets the related Credit
Tenant Property, such Tenant remains primarily obligated under such Credit
Lease;
(G) each Tenant has agreed to indemnify the related landlord from any
claims of any nature (1) to which such landlord is subject because of such
landlord's estate in the leased property or (2) arising from (I) injury to or
death of any person or damage to or loss of property on the related Credit
Tenant Property or connected with the use, condition or occupancy of the related
Credit Tenant Property, (II) Tenant's violation of the related Credit Lease,
(III) any act or omission of Tenant or (IV) any environmental or hazardous
material affecting the property created by the Tenant;
(H) if the obligations of the Tenant under any Credit Lease are
guaranteed by a guarantor pursuant to a guaranty, the guaranty states that it
represents the unconditional obligation of the guarantor and is a guarantee of
payment, not merely of collection;
(I) to the Seller's knowledge, each Credit Lease contains customary and
enforceable provisions which render the rights and remedies of the lessor
thereunder adequate for the enforcement and satisfaction of the lessor's rights
thereunder;
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<PAGE> 570
(J) to the Seller's knowledge, in reliance on a Tenant estoppel
certificate and representations made by the Tenant under the Credit Lease or
representations made by the related Borrower under the Mortgage Loan documents,
as of the date of origination of each Credit Tenant Loan (1) each Credit Lease
was in full force and effect, and no default by the related Borrower or any
Tenant has occurred under the Credit Lease, nor is there any existing condition
which, but for the passage of time or the giving of notice, or both, would
result in a default under the terms of the Credit Lease, (2) none of the terms
of the related Credit Lease have been impaired, waived, altered or modified in
any respect (except as described in the related Tenant estoppel), (3) no Tenant
has been released, in whole or in part, from its obligations under the related
Credit Lease, (4) there is no right of rescission, offset, abatement,
diminution, defense or counterclaim to any Credit Lease, nor will the operation
of any of the terms of any Credit Lease, or the exercise of any rights
thereunder, render the Credit Lease unenforceable in whole or in part, or
subject it to any right of rescission, offset, abatement, diminution, defense or
counterclaim and no such right of rescission, offset, abatement, diminution,
defense or counterclaim has been asserted with respect thereto and (5) each
Credit Lease has a term ending on or after the maturity date (or anticipated
repayment date) of the related Credit Tenant Loan;
(K) to the Seller's knowledge, the related Credit Tenant Property is
not subject to any lease other than the related Credit Lease, no Person has any
possessory interest in, or right to occupy, the such Credit Tenant Property
except under and pursuant to such Credit Lease, and the related Credit Tenant or
an affiliate is in occupancy of the such Credit Tenant Property;
(L) the Seller is entitled to notice of any event of default from the
Tenant under a Credit Lease;
(M) each Tenant under a Credit Lease is required to make all rental
payments directly to the Seller, its successors and assignees under the related
Credit Tenant Loan;
(N) each Credit Tenant Loan provides that the related Credit Lease
cannot be modified without the consent of the holder of the Mortgage Loan
thereunder;
(O) either (1) each Credit Tenant Loan fully amortizes over its
original term and there is no "balloon" payment due under the Credit Tenant Loan
or (2) a Residual Value Policy has been obtained with respect to such Credit
Tenant Loan;
(P) the related Credit Tenant Property has a permanent certificate of
occupancy (or its equivalent in jurisdictions that do not provide for the
issuance of certificates of occupancy) and the Tenant has commenced making lease
payments.
(Q) each Tenant has delivered an estoppel verifying the rents and terms
of the related lease, acknowledging that no rent has been paid in advance, and
an estoppel and/or subordination and nondisturbance agreement agreeing to attorn
to the holder of the Mortgage Loan.
(62) With respect to a Credit Tenant Loan for which a Residual
Value Policy or a Lease Enhancement Policy (collectively, the
"Policies") has been obtained, and which are identified on
Schedule C-1 attached hereto:
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<PAGE> 571
(A) Each Credit Tenant Loan in connection with which the related Credit
Lease may be terminated upon the occurrence of a casualty or condemnation has a
noncancellable Lease Enhancement Policy from Chubb Custom Insurance Company
("Chubb") or Lexington Insurance Company ("Lexington"). The Chubb Lease
Enhancement Policy in effect for each related Credit Tenant Loan is the "7/98"
version. The Lexington Lease Enhancement Policy in effect for each related
Credit Tenant Loan was issued in 1998 and the policy number is 63241(4-95).
(B) Each Credit Tenant Loan in connection with which the related Credit
Lease will have a balloon payment due at maturity has a non-cancelable Residual
Value Policy, from R.V.I. American Insurance Company ("RVI") or Financial
Structures Limited ("FSL"). The RVI Residual Value Policy in effect for each
related Credit Tenant Loan is the "Single 1.1" policy and the FSL Residual Value
Policy in effect for each related Credit Tenant Loan was issued in 1998.
(C) The Trustee and its assigns are designated as the loss payee under
each related Policy. All claims proceeds are payable to the loss payee.
(D) Payment under each Policy will be made at least within 15 days of
notification of a claim.
(E) The premium for each Policy has been paid in full as of the Policy
effective date for the related Policy and the Policy cannot be terminated prior
to the termination date.
(F) The effective date for each Policy with respect to each Credit
Tenant Loan is on or prior to the Closing Date.
(G) The termination date for each Policy with respect to each Credit
Tenant Loan is the date upon which the outstanding principal balance of the
Credit Tenant Loan is reduced to zero.
(H) The insured amount for each such Policy is what the applicable
provider will pay to the loss payee upon notification of a claim and is at least
equal to the outstanding principal balance of the related Mortgage Note at the
time the claim is made plus all accrued interest.
(I) The Policy cannot be amended without the prior written consent of
the Trustee.
C-23
<PAGE> 572
SCHEDULE C-1
ORIX
CTL Reps - Exceptions
<TABLE>
<CAPTION>
ORIX Rep # Exception Action or Comment
---------- --------- -----------------
<S> <C> <C>
A
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
B
CVS Murfreesboro (1) Rent and other charges shall abate after casualty or after a partial condemnation until the Property
is restored.
Tenant may terminate for landlord's failure to diligently restore after casualty.
Eckerds-Gloversville (1) Rent and other charges shall abate after casualty or after a partial condemnation until the Property
is restored.
Tenant may terminate for landlord's failure to diligently restore after casualty.
C
CVS Murfreesboro True except for specified LL repairs/maintenance Escrowing replacement reserves representing
obligations LL obligation
Eckerds-Gloversville True except for specified LL repairs/maintenance Escrowing replacement reserves representing LL
obligations obligation
D
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
E
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
F
CVS Murfreesboro Tenant may assign the Lease and be released from its obligations if the guarantor of the Lease remains
liable for the obligations of Tenant
Eckerds-Gloversville No exception
</TABLE>
C-1-1
<PAGE> 573
<TABLE>
<S> <C> <C>
G
CVS Murfreesboro Tenant indemnifies LL for willful, negligent or tortuous acts or omissions on the part of Tenant, its
agents, contractors or employees; for Tenant's failure to perform or comply with any of the convenants,
agreements, terms, provisions, conditions or limitations contained in the Lease and any Haz Mats existing
on the Property caused by the Tenant. No specific indemnity for (1), (2)(I).
Eckerds-Gloversville Tenant indemnifies LL from and against any and all claims and demands whether from injury to person, loss
of life or damage to property occurring within the Property, except as caused by LL and for any Haz Mats
existing on the Property caused by Tenant. No specific indemnification for (1), (2)(II) or (III).
H
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
I
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
J
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
K
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
L
CVS Murfreesboro In SNDA, not in Lease
Eckerds-Gloversville In SNDA, not in Lease
M
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
N
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
</TABLE>
C-1-2
<PAGE> 574
<TABLE>
<S> <C>
O
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
P
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
Q
CVS Murfreesboro No exception
Eckerds-Gloversville No exception
</TABLE>
[2] Residual Value or Condemnation (Lease Enhancement) Policies
General Comment: The Chubb 7/98 policies obtained cover only losses incurred by
the result of condemnation; casualty is not covered under the
policies; each credit tenant lease does not provide for
termination rights by the tenant for casualty; rental
interruption insurance is provided for the restoration period;
<TABLE>
<CAPTION>
ORIX Rep # Exception Action or Comment
<S> <C> <C>
A
CVS Murfreesboro Policy is terminated if Tenant terminates the Lease for any reason unrelated to an occurrence covered by
the policy which is condemnation
Eckerd-Gloversville Policy is terminated if Tenant terminates the Lease for any reason unrelated to an occurrence covered by
the policy which is condemnation
B
CVS Murfreesboro No exception (NAP)
Eckerd-Gloversville No exception (NAP)
C
CVS Murfreesboro No exception The Insured is Paine Webber Real Estate Securities
Inc. and its assignees of the Mortgage Loan (note:
assignment of policy requires 90 days notice to
Insurer), including any Trustee or Servicer of the
Mortgage Loan and claims are paid to the Insured.
</TABLE>
C-1-3
<PAGE> 575
<TABLE>
<S> <C> <C>
Eckerd-Gloversville No exception The Insured is Paine Webber Real Estate Securities
Inc. and its assignees of the Mortgage Loan (note:
assignment of policy requires 90 days notice to
Insurer), including any Trustee or Servicer of the
Mortgage Loan and claims are paid to the Insured.
D
CVS Murfreesboro No exception
Eckerd-Gloversville No exception
E
CVS Murfreesboro Policy is terminated if Tenant terminates the Lease for any reason unrelated to an occurrence covered by
the policy
Eckerd-Gloversville Policy is terminated if Tenant terminates the Lease for any reason unrelated to an occurrence covered by
the policy
F
CVS Murfreesboro No exception
Eckerd-Gloversville No exception
G
CVS Murfreesboro No exception
Eckerd-Gloversville No exception
H
CVS Murfreesboro No exception
Eckerd-Gloversville No exception
I
CVS Murfreesboro Policy is silent as to amendment
Eckerd-Gloversville Policy is silent as to amendment
</TABLE>
C-1-4
<PAGE> 576
Rep 1 No exceptions
Rep 2
One tenant, NE Restaurant ("Chili's"), responsible for 5.6% of the rent for loan
C-11233A (Kmart Plaza) has sent a Notice of Default to the landlord regarding
inadequate parking lot lighting. The landlord is moving towards a satisfactory
resolution. See attached letter.
Rep 3
No exceptions
Rep 4
No exceptions
Rep 5
Paradise Palms MPH (C-7368) has secured subordinate debt with an original
balance of $200,000 in place.
Rep 6
(e) Cross-collateralized and multiple property loans are secured by more than
one parcel which are not contiguous.
The following loans are cross-collateralized with each other (multiple Notes
multiple Mortgages)::
Days Inn - Ft. Wright (C-4459A)
Days Inn - Frankfort (C-4459B)
Days Inn - Shepherdsville (C-4459C)
New Hampshire Retail Portfolio
Kmart Plaza (C-11233A)
Miracle Mile Shopping Center (C-11233B)
North Country Plaza (C-11233C)
The following loans are multiple property loans (1 Note and 1 Mortgage)
377 Ballardvale/315 New Boston (C-7218)
87 Concord/7 Lopez (C-7223)
Carrington Heights/Plaza Apts (C-9809)
Pond Street/NorthCourt Apts (C-10326)
Plimpton & Hills (C-10593)
San Fernando Professional Buildings (C-10959)
The following loans are multiple property loans (1 Note and multiple Mortgages)
Des Moines Apts (C-10117)
Rep 7
No exceptions
Rep 8
No exceptions
C-1-5
<PAGE> 577
Rep 9
The following loans do not have a holdback of at least 125% of the recommended
repair costs:
4621 W. Napoleon (C-10939) - $500 requirement was waived
Rep 10
No exceptions
Rep 11
No exceptions
Rep 12
No exceptions
Rep 13
The following Mortgaged Properties have investment grade tenants who, under the
terms of their respective leases, are required to provide insurance below the
minimum standard:
In the case of Loan 8997, the tenant, Shoppers Food Warehouse Corp. (a
subsidiary of Supervalu Inc. S&P - BBB+ Moody's - Baa1) is required under its
lease to maintain insurance below the minimum requirement. Currently, their
insurance provider is rated A-X (AM Best) and A- (S&P)
The following is list of Mortgaged Properties located in either seismic zone 3
or 4 (all of which met the PML requirements):
South Meadows (C-8988)
3200 Regatta Blvd (C-9913)
Pine Terrace Apts (C-10216)
Balboa Point Apts (C-10762)
11155-11165 Sepulveda Blvd (C-10959a)
11211 Sepulveda Blvd (C-10959b)
17909 Soledad Canyon Road (C-10959c)
Rep 14
The following loans had Transaction Screens completed:
Pine Street Apts - C-9369 (original balance of $917,000)
St. James Apts - C-9370 (original balance of $1,100,000)
85 Second Avenue - C-9792 (original balance of $1,149,000)
Des Moines Apts - C-10117A, B, and C (total original balance of $1,717,000)
Ivory Garden Apts - C-10809 (original balance of $1,024,000)
The following loans have reports that are over 24 months old
Days Inn - Ft. Wright (C-4459A)
Days Inn - Frankfort (C-4459B)
Days Inn - Shepherdsville (C-4459C)
The following loans had a Phase II performed:
315 New Boston Street (C-7218B)
C-1-6
<PAGE> 578
155 West Street (C-7220)
14 Jewel Drive (C-7222)
87 Concord Road (C-7223A)
7 Lopez Road (C-7223B)
Reading Business Center (C-9510)
Deere Road Warehouse Buildings (C-9583)
The following loans have environmental insurance:
C-7585 Burke Village Center
Dry cleaner present. In lieu of Phase II, PaineWebber required environmental
insurance and the installation of a secondary containment facility around dry
cleaning equipment. The engineer recommended a holdback of $5,000 to $7,000 for
the construction of the secondary containment unit and further testing for
ground contamination. PaineWebber escrowed $8,500 for the secondary containment
facility and $10,000 for environmental insurance deductible. The environmental
insurance is for the full loan amount and for a 13 year term.
C-9583 Deere Road Warehouse
The Phase II report indicated that contaminated soils are present at the
subject. Although the Phase II engineer noted that these soils are contained and
should not pose any environmental problems, PaineWebber required the borrower to
purchase environmental insurance for the full amount of the mortgage loan and
for a term of 13 years.
C-11233a New Hampshire Retail Portfolio - Kmart Plaza
The environmental report identified soil and groundwater contamination from an
adjacent property and a UST that was reportedly removed from the subject in
1989. PaineWebber obtained a Secured Creditor Impaired Property Policy that will
be assigned to the Trust to cover any current or future liability and or
remediation. The environmental insurance is for the full loan amount and for a
13 year term.
Rep 15
The following loans are cross-collateralized with each other (multiple Notes
multiple Mortgages):
Days Inn - Ft. Wright (C-4459A)
Days Inn - Frankfort (C-4459B)
Days Inn - Shepherdsville (C-4459C)
New Hampshire Retail Portfolio
Kmart Plaza (C-11233A)
Miracle Mile Shopping Center (C-11233B)
North Country Plaza (C-11233C)
The following loans are multiple property loans (1 Note and 1 Mortgage)
377 Ballardvale/315 New Boston (C-7218)
C-1-7
<PAGE> 579
87 Concord/7 Lopez (C-7223)
Carrington Heights/Plaza Apts (C-9809)
Pond Street/NorthCourt Apts (C-10326)
Plimpton & Hills (C-10593)
San Fernando Professional Buildings (C-10959)
The following loans are multiple property loans (1 Note and multiple Mortgages)
Des Moines Apts (C-10117)
Rep 16
No exceptions
Rep 17
No exceptions
Rep 18
No exceptions
Rep 19
No exceptions
Rep 20
No exceptions
Rep 21
No exceptions
Rep 22
No exceptions
Rep 23
St. James Apartments (C-9370) Improvements encroach by up to 3 inches onto the
25 foot setback. No affirmative insurance available in Texas. Zoning is legal
conforming as to use.
Rep 24
No exceptions
Rep 25 No exceptions.
Rep 26
No exceptions
Rep 27
C-1-8
<PAGE> 580
Mount Vernon Medical Center (C-11539)
RSVP was organized to invest in real estate; RSVP is a key principal in the
borrowing entity for this mortgage loan. Paine Webber Real Estate Securities
Inc. is the largest preferred equity holder in RSVP. RSVP is allowed to make
capital calls on the preferred and common equity holders.
Rep 28
No exceptions
Rep 29
No exceptions
Rep 30
No exceptions
Rep 31
No exceptions
Rep 32
No exceptions
Rep 33
No exceptions
Rep 34
No exceptions
Rep 35
No exceptions
Rep 36
Paradise Palms MHP (C- 7368) has secured subordinate debt in the original amount
of $200,000 in place.
Rep 37
No exceptions
Rep 38
No exceptions
Rep 39
THE FOLLOWING LOANS DO NOT HAVE "WARM BODIES" AS INDEMNITORS FOR EITHER THE
ENVIRONMENTAL INDEMNITY AGREEMENT OR THE GUARANTY OF RECOURSE OBLIGATIONS:
Guaranty of Recourse Obligations: Loan 9583 (Deere Road Warehouse Buildings),
Loan 11128 (Diamond Point Plaza), 11233a, 11233b, 11233c (New Hampshire Retail
Portfolio)
C-1-9
<PAGE> 581
Although loans 9583,11128, 11233a, 11233b, and 11233c do not have so called
"warm body" indemnitors they do have "deep pocket" corporate indemnitors in
addition to the borrowing entity. Loans 9583, 11128, and 11233a-c have corporate
indemnitors with reported net worth's of $4,600,000, $4,200,000, and $56,733,000
respectively.
In the case of Loan 9583, their indemnification is capped at $750,000.
Please note, Loan 9925 and Loan 10003 have a "warm body" indemnitor for fraud
and lease violation only; however, a "deep pocket" corporate indemnitor with a
reported net worth of $747,000 is also in place for all carveouts.
Environmental Indemnity Agreement: Loan 8997 (Shoppers Food Warehouse), Loan
9583 (Deere Road Warehouse Buildings), Loan 9925 (Eckerds Gloversville), Loan
10003 (CVS Murfreesboro), Loan 11128 (Diamond Point Plaza), 11233a, 11233b, and
11233c (New Hampshire Retail Portfolio)
Although loans 9583, 9925, 10003, 11128, 11233a, 11233b, and 11233c do not have
so called "warm body" indemnitors they do have "deep pocket" corporate
indemnitors in addition to the borrowing entity.
In the case of Loan 8997, the tenant, Shoppers Food Warehouse Corp. (a
subsidiary of Supervalu Inc. S&P - BBB+ Moody's - Baa1) is responsible for all
environmental contamination it causes during the term of the lease
In the case of Loan 9583, indemnification is capped at $750,000.
Loan 9925, and Loan 10003 are credit tenant loans.
In the case of Loan 9925, the tenant, Fays Incorporated (a subsidiary of JC
Penney Co., Inc. S&P - BBB Moody's - Baa2) is responsible for all environmental
contamination it causes during the term of the lease
C-1-10
<PAGE> 582
In the case of Loan 10003, the tenant, CVS/Hook SupeRx, Inc. (a subsidiary of
CVS Corporation S&P - A Moody's - A3) is responsible for all environmental
contamination it causes during the term of the lease.
Loan 8997 - No carveout for breach of a provision of the Environmental Indemnity
Agreement. However, the tenant, Shoppers Food Warehouse Corp. (a subsidiary of
Supervalu Inc. S&P - BBB+ Moody's - Baa1) is responsible for all environmental
contamination it causes during the term of the lease.
Rep 40
No exceptions
Rep 41
No exceptions
Rep 42
No exceptions
Rep 43
No exceptions
Rep 44
No exceptions
Rep 45
No exceptions
Rep 46
No exceptions
Rep 47
PaineWebber has no requirement of certification by a certified public accountant
for any of its loans. Under PaineWebber loan documents, Mortgagor is generally
required to pay all costs and expenses incurred by Mortgagee incurred in
connection the defeasance.
Rep 48
No exceptions
Rep 49
No exceptions
Rep 50
No exceptions
Rep 51
No exceptions
C-1-11
<PAGE> 583
Rep 52
No exceptions
Rep 53
No exceptions
Rep 54
No exceptions
Rep 55
Ivory Gardens Apts (C-10809) with an original balance of $1,024,000 requires
monthly operating and financial statements be provided for the first 12 months
of the term and annual statements thereafter.
Credit tenant loans only require that annual operating and financial statements
be provided.
Eckerds Gloversville (C-9925)
CVS Murfreesboro (C-10003)
Rep 56
No exceptions
Rep 57
Eckerds Gloversville (C-9925 (CTL)) has a 15-day grace period
Rep 58
No exceptions
Rep 59
No exceptions
Rep 60
155 West Street (C-7220) Septic system is the responsibility of borrower
87 Concord Road (C-7223a) Septic system is the responsibility of borrower
7 Lopez Road (C-7223b) Septic system is the responsibility of borrower
Lake Cook Road (C-9529) is required to connect the subject to the city water
line. The engineer estimated this cost at $120,000, PaineWebber held back 125%
of this amount, or $150,000.
C-1-12
<PAGE> 584
SCHEDULE C-2
8988 PW South Meadows
1,993,702
9913 PW 3200 Regatta Boulevard
12,558,042
10216 PW Pine Terrace Apartments
6,515,732
10762 PW Balboa Pointe Apartments
2,619,596
C-2-1
<PAGE> 585
EXHIBIT D-1
FORM OF CERTIFICATE OF
SECRETARY
OF PAINE WEBBER REAL ESTATE SECURITIES INC.
Certificate of Assistant Secretary of Paine Webber Real Estate Securities Inc.
I, John L. Fearey, hereby certify that I am a duly elected and
acting Assistant Secretary of Paine Webber Real Estate Securities Inc. (the
"Company"), and certify further as follows:
a) The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware;
b) 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;
c) Attached hereto as Exhibit B is a certificate of the
Secretary of State of the State of Delaware, issued within 10 days of the date
hereof with respect to the good standing of the Company;
d) Since the date of the certificate attached hereto as
Exhibit B, the Company has not received any notification from the Secretary of
the State of Delaware, or from any other source, that the Company is not in good
standing in Delaware;
e) 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 August 15, 2000 (the "Mortgage
Loan Purchase Agreement"), between Salomon Brothers Mortgage Securities VII,
Inc. ("SBMS VII") and the Company.
f) To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Company are pending or contemplated; and
g) 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 August 15, 2000 (the "Indemnification
Agreement"), among the Company, SBMS VII, Salomon Smith Barney Inc., PaineWebber
Incorporated, Chase Securities Inc. and Artesia Banking Corporation, and (c) any
other document or certificate delivered on or before the date hereof in
connection with the transactions contemplated by the foregoing documents, was,
at the respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signature of such persons appearing on such documents
are their genuine signatures.
D-1-1
<PAGE> 586
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 August
__, 2000.
By:
Name: John L. Fearey
Title: Assistant Secretary
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 August
__, 2000.
By:
Name:
Title:
D-1-2
<PAGE> 587
EXHIBIT D-2
FORM OF CERTIFICATE OF
PAINE WEBBER REAL ESTATE SECURITIES INC.
Certificate of Paine Webber Real Estate Securities Inc.
In connection with the execution and delivery by Paine Webber
Real Estate Securities Inc. (the "Company") of, and the consummation of the
transactions contemplated by, that certain Mortgage Loan Purchase Agreement
dated as of August 15, 2000 (the "Mortgage Loan Purchase Agreement"), between
Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII") and the Company, the
Company hereby certifies that (i) its representations and warranties set forth
in the Mortgage Loan Purchase Agreement and in the Indemnification Agreement
dated as of August 15, 2000, among the Company, SBMS VII, Salomon Smith Barney
Inc., PaineWebber Incorporated, Chase Securities Inc. and Artesia Banking
Corporation (the "Indemnification Agreement"; and, collectively with the
Mortgage Loan Purchase Agreement, the "Agreements"), are true and correct in all
material respects at and as of the date hereof (or, in the case of the
representations an 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)
it has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Mortgage Loan Purchase
Agreement to be performed or satisfied at or prior to the date hereof.
Capitalized terms used but not otherwise defined herein have the respective
meanings assigned to them in the Mortgage Loan Purchase Agreement and, if not
defined therein, then in the Indemnification Agreement.
Certified this ___ day of August, 2000.
PAINE WEBBER REAL ESTATE SECURITIES INC.
By:
---------------------------------
Name:
Title:
D-2-1
<PAGE> 588
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL
TO THE SELLER
August 24, 2000
Addressees listed on Exhibit A hereto
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates
Ladies and Gentlemen:
I am an Associate General Counsel of PaineWebber Incorporated and as
such as generally familiar with its affiliate Paine Webber Real Estate
Securities Inc. I am rendering this opinion pursuant to Section 7(h) the
Mortgage Loan Purchase Agreement, dated as of August 15, 2000 (the "Mortgage
Loan Purchase Agreement"), between Salomon Brothers Mortgage Securities VII,
Inc. ("SBMS VII") and Paine Webber Real Estate Securities Inc. (the "Company"),
relating to the sale by the Company of certain mortgage loans (the "Mortgage
Loans"). I have also acted as counsel to the Company in connection with its
entering into the Indemnification Agreement dated as of August 15, 2000 (the
"Indemnification Agreement"), among the Company, SBMS VII, Salomon Smith Barney
Inc., PaineWebber Incorporated, Chase Securities Inc. and Artesia Banking
Corporation. 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:
i) The Company is a validly existing corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority under such laws to enter into and perform its obligations under the
Agreements.
j) Each Agreement has been duly authorized, executed and
delivered by the PWRES.
D-3A-1
<PAGE> 589
k) No consent, approval, authorization or order of any court,
governmental agency or body is required in connection with the execution and
delivery by the Company of the Agreements, except for those consents, approvals,
authorizations or orders that previously have been obtained.
l) 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 Articles of Incorporation or the
By-laws of the Company or any agreement, instrument, order, writ, judgment or
decree known to me to which the Company is a party or is subject.
m) To the best of my knowledge, there are no actions or
proceedings against the Company, pending (with regard to which the Company has
received service of process) or overtly threatened in writing before any court,
governmental agency or arbitrator which affect the enforceability of the
Agreements, or which would draw into question the validity of the Agreements or
any action taken or to be taken in connection with the Company's obligations
contemplated therein, or which would materially impair the Company's ability to
perform under the terms of the Agreements.
I am a member of the bar of the State of New York and, with your
permission, my opinions expressed herein are limited to the laws of the State of
New York, the General Corporation Law of the State of Delaware 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.
The opinions expressed herein are based upon circumstances, including applicable
law, in effect on the date hereof and I assume no obligation to revise or
supplement this opinion should such circumstances change, whether by legislative
action, judicial decision or otherwise.
Very truly yours,
D-3A-2
<PAGE> 590
Schedule A
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street
New York, New York 10013
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
PaineWebber Incorporated
1285 Avenue of the Americas, 38th Floor
New York, New York 10019
Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Artesia Banking Corporation
c/o Artesia Mortgage Capital Corporation
1180 Northwest Maple Street, Suite 202
Issaquah, Washington 98027
Moody's Investors Service, Inc.
99 Church Street
New York, New York 1000
Fitch, Inc.
One State Street Plaza, 31st Floor
New York, New York 10004
Paine Webber Real Estate Securities Inc.
1285 Avenue of the Americas, 38th Floor
New York, New York 10019
Wells Fargo Bank Minnesota, N.A.
45 Broadway, 12th Floor
New York, New York 10006
D-3A-3
<PAGE> 591
EXHIBIT D-3B
FORM OF OPINION OF SIDLEY & AUSTIN,
SPECIAL COUNSEL TO THE SELLER
August 24, 2000
<TABLE>
<S> <C>
Salomon Brothers Mortgage Moody's Investors Service, Inc.
Securities VII, Inc. 99 Church Street
388 Greenwich Street New York, New York 1000
New York, New York 10013
Salomon Smith Barney Inc. Fitch, Inc.
388 Greenwich Street One State Street Plaza, 31st Floor
New York, New York 10013 New York, New York 10004
PaineWebber Incorporated Paine Webber Real Estate Securities Inc.
1285 Avenue of the Americas, 38th Floor 1285 Avenue of the Americas, 38th Floor
New York, New York 10019 New York, New York 10019
Chase Securities Inc. Wells Fargo Bank Minnesota, N.A.
270 Park Avenue 45 Broadway, 12th Floor
New York, New York 10017 New York, New York 10006
Artesia Banking Corporation
c/o Artesia Mortgage Capital Corporation
1180 Northwest Maple Street, Suite 202
Issaquah, Washington 98027
</TABLE>
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C2
Ladies and Gentlemen:
We have acted as special counsel to Paine Webber Real Estate
Securities Inc. ("PWRES") with respect to certain matters in connection with the
transactions contemplated by that certain Mortgage Loan Purchase Agreement,
dated as of August 15, 2000 (the "Mortgage Loan Purchase Agreement"), between
PWRES, as seller, and Salomon Brothers Mortgage Securities VII, Inc. ("SBMS
VII"), as purchaser.
This opinion letter is being provided to you pursuant to
Section 7(h) of the Mortgage Loan Purchase Agreement. Capitalized terms not
defined herein have the respective
<PAGE> 592
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 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 the authentic originals of all documents
submitted to us as certified, conformed or photostatic 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 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
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 intentions and
agreements of the parties to the Mortgage Loan Purchase Agreement, as expressed
therein.
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 and
"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
D-3A-18-2
<PAGE> 593
regulation, (ii) the application of any general principles of equity or (iii)
the obligation of diligence, (b) any provision that purports to grant any
remedies that would not otherwise be available at law, to restrict access to any
particular legal or equitable remedies, to make any rights or remedies
cumulative and enforceable in addition to any other right or remedy, to provide
that the election of any particular remedy does not preclude recourse to one or
more other remedies, to provide that the failure to exercise or the delay in
exercising rights or remedies will not operate as a waiver of such rights or
remedies, to impose penalties or forfeitures, or to provide for set-off in the
absence of mutuality between the parties, (c) any provision that purports to
release, exculpate or exempt a party from, or indemnify a party for, liability
for any act or omission on its part that constitutes negligence, recklessness or
willful or unlawful conduct, (d) any provision that purports to govern matters
of civil procedure, including any such provision that purports to establish
evidentiary standards, to waive objections to venue or forum, to confer subject
matter jurisdiction on any court that would not otherwise have such jurisdiction
or to waive any right to a jury trial, or (e) any provision that purports to
render unenforceable any modification, waiver or amendment that is not executed
in writing, to sever any provision of any agreement, to appoint any person or
entity as the attorney-in-fact of any other person or entity or to provide that
any agreement or any particular provision thereof is to be governed by or
construed in accordance with the laws of any jurisdiction other than the State
of New York; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties
generally; and (5) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provision of any agreement that purports or is construed to provide
indemnification with respect to securities law violations.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Mortgage Loan Purchase Agreement constitutes a valid,
legal and binding agreement of PWRES, enforceable against PWRES in
accordance with its terms.
2. The execution, delivery and performance of the Mortgage Loan
Purchase Agreement by PWRES will not conflict with or result in a
violation of any Federal or State of New York statute or regulation
generally applicable to Delaware 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-3A-18-3
<PAGE> 594
EXHIBIT M-3
FORM OF AMCC MORTGAGE LOAN PURCHASE
AGREEMENT
M-3
<PAGE> 595
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective as of August 15, 2000, between Artesia Mortgage Capital
Corporation, a Delaware corporation ("AMCC"), as seller (in such capacity,
together with its successors and permitted assigns hereunder, the "Seller"), and
Salomon Brothers Mortgage Securities VII, Inc., a Delaware corporation ("SBMS
VII"), as purchaser (in such capacity, together with its successors and
permitted assigns hereunder, the "Purchaser").
RECITALS
AMCC desires to sell, assign, transfer and otherwise convey to
SBMS VII, without recourse, and SBMS VII desires to purchase, subject to the
terms and conditions set forth herein, the multifamily and commercial mortgage
loans (the "Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended from
time to time pursuant to the terms hereof.
SBMS VII intends to create a trust (the "Trust"), the primary
assets of which will be the Mortgage Loans, certain other multifamily and
commercial mortgage loans (the "Other Loans"; and, together with the Mortgage
Loans, the "Securitized Loans"). Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund") will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Fitch, Inc. and Moody's Investors Service, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of August 1, 2000 (the "Pooling and Servicing Agreement"), among SBMS
VII, as depositor, ORIX Real Estate Capital Markets, LLC, as master servicer (in
such capacity, the "Master Servicer") and as special servicer (in such capacity,
the "Special Servicer"), and Wells 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 to the Trust
contemporaneously with its purchase of the Mortgage Loans hereunder.
SBMS VII will acquire some of the Other Loans from Salomon
Brothers Realty Corp. ("SBRC"), some of the Other Loans from Paine Webber Real
Estate Securities Inc. ("PWRES"), and the remaining Other Loans from ORIX Real
Estate Capital Markets, LLC ("ORECM"; and, collectively with SBRC and PWRES, the
"Other Loan Sellers").
SBMS VII intends to sell the Registered Certificates to Salomon
Smith Barney Inc. ("Salomon"), PaineWebber Incorporated ("PaineWebber"), Chase
Securities Inc. ("Chase") and Artesia Banking Corp. ("Artesia BC"), pursuant to
an underwriting agreement, dated the
<PAGE> 596
date hereof (the "Underwriting Agreement"), among SBMS VII, Salomon,
PaineWebber, Chase and Artesia BC; and SBMS VII intends to sell the remaining
Certificates (the "Non-Registered Certificates") to Salomon and PaineWebber,
pursuant to a certificate purchase agreement, dated the date hereof (the
"Certificate Purchase Agreement"), among SBMS VII, Salomon and PaineWebber. The
Registered Certificates are more fully described in the prospectus dated August
4, 2000 (the "Basic Prospectus"); and the supplement to the Basic Prospectus
dated August 15, 2000 (the "Prospectus Supplement"; and, together with the Basic
Prospectus, the "Prospectus"), as each may be amended or supplemented any time
hereafter. Certain classes of the Non-Registered Certificates are more fully
described in the private placement memorandum dated August 15, 2000 (the
"Memorandum"), as it may be amended or supplemented at any time hereafter.
AMCC will indemnify SBMS VII, Salomon, PaineWebber, Chase,
Artesia BC, the Other Loan Sellers and certain related parties with respect to
the disclosure regarding the Mortgage Loans and AMCC contained in the
Prospectus, the Memorandum and certain other disclosure documents and offering
materials relating to the Certificates, pursuant to an indemnification
agreement, dated the date hereof (the "Indemnification Agreement"), among AMCC,
SBMS VII, Salomon, PaineWebber, Chase and Artesia BC.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey
(without recourse) to the Purchaser, and the Purchaser agrees to purchase,
subject to the terms and conditions set forth herein, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on August 24, 2000 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 scheduled due
dates in August 2000 (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 $131,716,273, subject to a variance of plus or minus 5%. The
purchase price for the Mortgage Loans shall be $131,444,432, together with
accrued interest on the Mortgage Loans at their respective Net Mortgage Rates
from and including the Cut-off Date 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).
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the purchase price referred to in Section 1 hereof, the Seller does hereby
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse but subject to the terms of this Agreement, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including, without limitation, all of the
Seller's right, title and interest in and to the proceeds of any related title,
hazard or other insurance policies received by the Seller on or with respect to
the Mortgage Loans after the Cut-off Date and any
3
<PAGE> 597
Additional Collateral. The Seller shall, within 15 days of the discovery of an
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. The Mortgage Loan Schedule, as it may be amended, shall conform
to the requirements set forth in this Agreement.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its
expense, deliver or cause to be delivered to the Purchaser or its designee the
Mortgage File and any Additional Collateral (other than reserve funds and escrow
payments) with respect to each Mortgage Loan. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipient of the items
described in the preceding sentence shall be the Trustee.
If the Seller cannot deliver, or cause to be delivered, on or
before the Closing Date, as to any Mortgage Loan, the original Mortgage Note,
the Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser, Trustee, Master Servicer and
Special Servicer against any losses and expenses that may be incurred by reason
of such lost or destroyed Mortgage Note. If the Seller cannot deliver, or cause
to be delivered, on or before the Closing Date, as to any Mortgage Loan, any of
the documents and/or instruments required to be delivered as part of the
Mortgage File for such Mortgage Loan, with evidence of recording or filing
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, the delivery requirements of this Agreement shall be deemed to have been
satisfied as to such non-delivered document or instrument provided that a
photocopy of such non-delivered document or instrument (without evidence of
recording or filing, but certified by the Seller to be a true and complete copy
of the original thereof submitted for recording or filing) is delivered to the
Purchaser, the Trustee or a Custodian appointed thereby on or before the Closing
Date, and either the original of such non-delivered document or instrument, or a
photocopy thereof (certified by the appropriate county recorder's office, in the
case of a Mortgage, to be a true and complete copy of the original thereof
submitted for recording or filing), with evidence of recording or filing
thereon, is delivered to the Purchaser, the Trustee or such Custodian within 365
days of the Closing Date (or within such longer period after the Closing Date as
the Purchaser may consent to, which consent shall not be unreasonably withheld
so long as the Seller is in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy). If the Seller cannot
deliver, or cause to be delivered, on or before the Closing Date, as to any
Mortgage Loan, any of the documents and/or instruments referred to in the
definition of "Mortgage File", with evidence of recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost, the delivery requirements of this Agreement shall be
deemed to have been satisfied as to such non-delivered document or instrument
and such non-delivered document or instrument shall be deemed to have been
included in the
4
<PAGE> 598
Mortgage File, provided that a photocopy of such non-delivered document or
instrument (with evidence of recording thereon and certified, in the case of a
Mortgage, by the appropriate county recorder's office to be a true and complete
copy of the original thereof submitted for recording) is delivered to the
Purchaser, the Trustee or a Custodian appointed thereby on or before the Closing
Date together with an affidavit certifying that the original thereof has been
lost or destroyed. With respect to any Mortgage Loan, and notwithstanding the
foregoing, the Seller may deliver a UCC-3 on or before the Closing Date that
does not contain the filing information for the related UCC-1 and/or UCC-2 if
such UCC-1 and/or UCC-2 has not been returned to the Seller by the applicable
filing office, and the Seller may deliver assignments of documents and/or
instruments that do not contain the recording information for the related
documents and/or instruments, as applicable, if such documents and/or
instruments have not been returned to the Seller by the applicable recording
office. The Seller hereby authorizes the Purchaser, acting in its stead and on
its behalf, to fill in any missing filing or recording information or any
instrument or document required to be delivered pursuant to this subsection (b).
The delivery of an original pro forma or specimen title insurance policy or an
original marked, redated and recertified commitment to issue a policy of
lender's title insurance in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf no later than the 90th day following the
Closing Date (or such later date provided that the reason for the delay in
delivery of the title policy to the Trustee or Custodian is either (i) because
of a delay caused by the public recording or filing office where the Mortgage
has been delivered for recording or filing in returning a filed copy of the
Mortgage or (ii) due to the failure of the title company to forward such title
policy in a timely manner).
If the Seller cannot deliver, or cause to be delivered, on or
before the Closing Date, as to any Mortgage Loan, any of the documents and/or
instruments required to be delivered as part of the Mortgage File for such
Mortgage Loan, with evidence of recording or filing thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, and the Seller has
satisfied its delivery requirements as to such non-delivered document or
instrument by delivering a photocopy thereof (without evidence of recording or
filing, but certified by the Seller to be a true and complete copy of the
original thereof submitted for recording or filing), then:
(i) the Purchaser will, on or about the 115th day following the
Closing Date and approximately every 90 days thereafter until it or its
designee receives the original or a photocopy of the subject document or
instrument reflecting evidence of recordation or filing, prepare and
forward or cause to be prepared and forwarded to the Seller a
certification, to be signed and returned by the Seller, to the effect
that the Seller is in good faith attempting to obtain from the
appropriate public recording or filing office such original or
photocopy; and
(ii) the Seller agrees to execute and return to the Purchaser
or its designee each such certification within 15 days following its
receipt thereof.
5
<PAGE> 599
In addition, unless previously delivered by the Seller to the
Purchaser or its designee, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, the following items, on or before the Closing Date (or, if any of
the following items are not in the actual possession of the Seller as soon as
reasonably or practical, but in any event within 30 days, after Closing Date):
(i) copies of the Mortgage Files for the respective Mortgage Loans; (ii)
originals or copies of all financial statements, appraisals, environmental/
engineering reports, leases, rent rolls and tenant estoppels in the possession
or under the control of the Seller that relate to the Mortgage Loans and, to the
extent they are not required to be a part of a Mortgage File in accordance with
the definition thereof, originals or copies of all documents, certificates and
opinions in the possession or under the control of the Seller that were
delivered by or on behalf of the related Borrowers in connection with the
origination of the Mortgage Loans; and (iii) all unapplied reserve funds and
escrow payments in the possession or under the control of the Seller that relate
to the Mortgage Loans, other than those that are to be retained by a
sub-servicer or primary servicer that will continue to act on behalf of the
Purchaser. Unless the Purchaser notifies the Seller in writing to the contrary,
the designated recipient of the items described in clauses (i) - (iii) of the
preceding sentence shall be the Master Servicer.
The Seller shall also provide to the Purchaser or its designee
the initial data on the Mortgage Loans (as of the Closing Date or the most
recent earlier date for which such date is available) contemplated by the Loan
Set-up File, the Loan Periodic Update File, the Operating Statement Analysis
Report and the Property File.
(d) The Seller shall be responsible for: (i) all reasonable
costs and expenses associated with recording and/or filing any and all
assignments and other instruments of transfer to the Purchaser with respect to
the Mortgage Loans that are required to be recorded or filed, as the case may
be, under the Pooling and Servicing Agreement (provided that the Seller shall
not be responsible for actually recording or filing any such assignments or
other instruments of transfer); and (ii) all other reasonable out-of-pocket
costs and expenses incurred by the Trustee or a Custodian pursuant to Section
2.01(e) of the Pooling and Servicing Agreement. In connection with the
endorsement of any Mortgage Note and the delivery of any assignment from the
Seller hereby authorizes the Purchaser or its designee to complete each
endorsement or assignment in blank appearing thereon in favor of the Purchaser
in such manner as the Purchaser shall determine the exercise of its sole
discretion, provided that such endorsement will be without recourse,
representation or warranty of the Seller except as expressly set forth in this
Agreement. 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,
the Purchaser or an assignee thereof, which may include the Trustee or its
Custodian or its agent, shall notify the Seller of same. The Seller shall cure
such defect within 90 days following such notice or the Purchaser may prepare or
cause to be prepared a substitute therefor or cure such defect, as the case may
be, and thereafter the Purchaser shall upon receipt thereof cause the same to be
duly recorded or filed, as appropriate, all at the Seller's expense. The
Purchaser may (and, at the Purchaser's request, the Seller shall) execute any
replacement assignment or instrument of transfer, being filed in substitution
for any such lost or returned unrecorded or unfiled assignment or instrument of
transfer, at the Seller's expense, and the Seller shall assist the Purchaser or
its designee or agent in recording or filing such documents or instruments.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee or to file any UCC-3 in those
6
<PAGE> 600
jurisdictions where, in the written opinion of the local counsel to Purchaser or
Trustee or such other evidence as is acceptable to the Trustee or its designee
such recordation and/or filing is not required to protect the Purchaser's
interest in the Mortgage Loans against sale, further assignment, satisfaction or
discharge by the Seller, and the reasonable costs of such opinion and/or other
evidence shall be borne by the Seller. The Seller shall provide the Purchaser or
its designee with a power of attorney to enable it or them to record any loan
documents that the Purchaser has been unable to record.
(e) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller shall report its transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of those assets
to the Purchaser in exchange for the consideration specified in Section 1
hereof. In connection with the foregoing, the Seller shall cause all of its
records to reflect such transfer as a sale (as opposed to a secured loan).
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with any examination of
the Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser. The
fact that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section 4
except as such remedies are otherwise limited by the terms of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes, as of the Closing Date, to and for
the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of
such other date specifically provided in the particular representation or
warranty) to and for the benefit of the Purchaser, each of the representations
and warranties set forth in Exhibit C.
7
<PAGE> 601
(c) It is understood and agreed that the representations and
warranties set forth in this Section 4 shall survive delivery of the respective
Mortgage Files to the Purchaser or its designee and shall inure to the benefit
of the Purchaser for so long as any of the Mortgage Loans remains outstanding,
notwithstanding any restrictive or qualified endorsement or assignment.
SECTION 4A. Representations, Warranties and Covenants of Purchaser.
The Purchaser hereby represents and warrants, as of the Closing Date,
that:
(a) The Purchaser is a duly formed corporation, validly existing
and in good standing under the laws of the State of Delaware.
(b) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(c) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(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
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<PAGE> 602
by the Purchaser of the transactions contemplated herein, except for those
consents, approvals, authorizations and orders that previously have been
obtained and those filings and registrations that previously have been
completed.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within 90 days of the earlier of discovery or receipt of
notice by the Seller that there has been a Material Breach or a Material
Document Defect, the Seller shall, subject to subsection (b) below, (i) cure
such Material Breach or Material Document Defect, as the case may be, in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price provided for in the
Pooling and Servicing Agreement, to be deposited or delivered in accordance with
the directions of the Purchaser; provided that if (i) any such Material Breach
or Material Document Defect, as the case may be, does not relate to whether the
Defective Mortgage Loan was, as of the Closing Date, a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (a "Qualified Mortgage"),
(ii) such Material Breach or Material Document Defect, as the case may be, is
capable of being cured but not within such 90-day period, (iii) the Seller has
commenced and is diligently proceeding with the cure of such Material Breach or
Material Document Defect, as the case may be, within such 90-day period, and
(iv) the Seller shall have delivered to the Purchaser a certification executed
on behalf of the Seller by an officer thereof setting forth the reason that such
Material Breach or Material Document Defect, as the case may be, is not capable
of being cured within the initial 90-day period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be cured within an additional period not to exceed 90 more days,
then the Seller shall have up to an additional 90 days to complete such cure or,
failing such, to repurchase the Defective Mortgage Loan. 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 a Material Document Defect, but if the Seller
has actual knowledge of a Material Breach or Material Document Defect with
respect to a Mortgage Loan, it will notify the Purchaser.
If a Breach or Document Defect exists with respect to any
Mortgage Loan constituting part of a Cross-Collateralized Group, then the
determination as to whether such Breach or Document Defect, as the case may be,
is a Material Breach or a Material Document Defect, as applicable, shall be made
as follows:
(i) if such Mortgage Loan has become a Specially Serviced
Mortgage Loan by reason of such Breach or Document Defect, then based
solely upon such Mortgage Loan and the Mortgaged Property identified on
the Mortgage Loan Schedule as corresponding thereto, without regard to
the cross-collateralization; and
(ii) otherwise, treating such Cross-Collateralized Group as a
single Mortgage Loan secured by all of the related Mortgaged
Properties.
For purposes of applying the remedies contemplated by this Section 5(a) in
connection with any Material Breach or Material Document Defect in respect of
any Cross-Collateralized Group or
9
<PAGE> 603
any particular Cross-Collateralized Mortgage Loan that is part of such
Cross-Collateralized Group, such Cross-Collateralized Group shall be treated as
a single Mortgage Loan.
If any Defective Mortgage Loan is to be repurchased as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and shall forward
such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller
set forth in this Section 5(a) to cure a Material Breach or a Material Document
Defect or repurchase the related Defective Mortgage Loan(s), constitute the sole
remedies available to the Purchaser with respect to a Breach or Document Defect.
The Seller hereby acknowledges the assignment by the Purchaser
to the Trustee, as trustee under the Pooling and Servicing Agreement, for the
benefit of the Certificateholders, of the representations and warranties
contained herein and of the obligations of the Seller to cure Material
Breaches/Material Document Defects or repurchase Defective Mortgage Loans
pursuant to this Section 5(a). In addition, the Seller hereby acknowledges and
agrees that, pursuant to Section 2.03(d) of the Pooling and Servicing Agreement,
the Master Servicer and the Special Servicer (in the case of Specially Serviced
Mortgage Loans) have the right, for the benefit of the Certificateholders, to
enforce the obligations of the Seller under this Agreement. If the Seller is
required to repurchase a Defective Mortgage Loan, the reasonable out-of-pocket
costs and expenses, including reasonable attorneys' fees and disbursements,
incurred by the Purchaser, the Trustee, the Custodian, the Master Servicer and
the Special Servicer as a result of such repurchase shall be part of the
purchase price.
(b) It shall be a condition to any repurchase of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that (i) the Trustee as
assignee of the Purchaser shall have executed and delivered such instruments of
transfer or assignment then presented to it by the Seller, in each case without
recourse, as shall be necessary to vest in the Seller the legal and beneficial
ownership of such Defective Mortgage Loan (including any property acquired in
respect thereof or proceeds of any insurance policy with respect thereto), to
the extent that such ownership interest was transferred to the Purchaser
hereunder and (ii) the Purchaser or its assignee shall release or cause the
release to the Seller or its designee of the Mortgage File, any Additional
Collateral, all insurance policies and proceeds thereunder, the Servicing File
and any Escrow Payments and/or Reserve Funds held by or on behalf of the
Purchaser (or its assignee) with respect to such Mortgage Loan.
SECTION 6. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Sidley & Austin, 875 Third Avenue, New York, New
York 10022 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller made
pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date or such other date as specified in
Exhibit C;
10
<PAGE> 604
(b) 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;
(c) 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;
(d) All other terms and conditions of this Agreement required to
be complied with by the Seller and the Purchaser, including, without limitation,
in the case of the Purchaser, payment of the purchase price, on or before the
Closing Date shall have been complied with, and the Seller shall have the
ability to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees, costs and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement; and
(f) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser
and the Seller;
(b) The Indemnification Agreement, duly executed and delivered
by the Seller, the Purchaser and each of Salomon, PaineWebber, Chase and Artesia
BC;
(c) The Pooling and Servicing Agreement duly executed and
delivered by SBMS VII, the Master Servicer, the Special Servicer and the
Trustee;
(d) An Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and upon
which the Purchaser, Salomon, PaineWebber, Chase, Artesia BC, the Other Loan
Sellers 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
(g) below;
11
<PAGE> 605
(e) A certificate of good standing with respect to the Seller
issued by the Secretary of State of the State of Delaware dated not earlier than
10 days prior to the Closing Date;
(f) A certificate of the Seller substantially in the form of
Exhibit D-2 hereto, executed by an executive officer or authorized signatory of
the Seller and dated the Closing Date, and upon which the Interested Parties may
rely;
(g) Resolutions of the Seller authorizing the transactions
contemplated by this Agreement, which resolutions will be in full force and
effect, and will not have been rescinded, as of the Closing Date;
(h) A written opinion of Sidley & Austin as special counsel for
the Seller, substantially in the form of Exhibit D-3 hereto (with any
modifications required by any Rating Agency, and subject to such reasonable
assumptions, qualifications and limitations as may be requested by counsel for
the Seller and acceptable to counsel for the Purchaser), dated the Closing Date
and addressed to SBMS VII, each of the other parties to the Pooling and
Servicing Agreement, Salomon, PaineWebber, Chase, Artesia BC and each Rating
Agency; and such other written opinions as may be required by a 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);
(i) One or more accountants' comfort letters relating to the
information regarding the Mortgage Loans contained in the Prospectus and
Memorandum that is of a statistical nature; and
(j) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
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 May 30,
2000 (the "Term Sheet").
SECTION 9. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to the Purchaser at 388 Greenwich Street, New
York, New York 10013, attention: Angela Hutzel, facsimile no. 212-816-8306, 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 1180 N.W. Maple Street, Suite 202, Issaquah, Washington 98027,
attention: Diana Kelsey Kutas, facsimile no.: (425) 313-1005, or to such other
address or facsimile number as may hereafter be furnished to the Purchaser in
writing by the Seller.
12
<PAGE> 606
SECTION 10. Characterization.
The parties hereto agree that it is their express intent that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. The parties hereto further agree that it is not
their intention that such conveyance be deemed a pledge of the Mortgage Loans by
the Seller to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to continue to be property of the Seller, then: (a) this Agreement shall be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder(s) of those assets in accordance with the terms thereof (other
than scheduled payments of interest and principal due on or before the Cut-off
Date) and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property; (c) the
assignment by SBMS VII to the Trustee of its interests in the Mortgage Loans as
contemplated by Section 16 hereof shall be deemed to be an assignment of any
security interest created hereunder; (d) the possession by the Purchaser or any
successor thereto of the related Mortgage Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction; and
(e) notifications to, and acknowledgments, receipts or confirmations from,
persons or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without
13
<PAGE> 607
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, SBMS VII is
expressly authorized to assign it rights and obligations under this Agreement,
in whole or in part, to the Trustee for the benefit of the registered holders
and beneficial owners of the Certificates. To the extent of any such assignment,
the Trustee (including acting through the Master Servicer and Special Servicer
pursuant to the terms of the Pooling and Servicing Agreement), for the benefit
of the registered holders and beneficial owners of the Certificates, shall be
the Purchaser hereunder. In connection with the transfer of any Mortgage Loan by
the Trust as contemplated by the terms of the Pooling and Servicing Agreement,
the Trustee, for the benefit of the registered holders and beneficial owners of
the Certificates, is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the transferee of such Mortgage
Loan. To the extent of any such assignment, such transferee shall be the
Purchaser hereunder (but solely with respect to such Mortgage Loan that was
transferred to it). Subject to the foregoing, this Agreement shall bind and
inure to the benefit of and be enforceable by the Seller and the Purchaser, and
their respective successors and permitted assigns.
14
<PAGE> 608
SECTION 17. Amendments.
(a) No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced.
(b) Notwithstanding any contrary provision of this Agreement or
the Pooling and Servicing Agreement, no amendment of the Pooling and Servicing
Agreement executed after the Closing Date that increases the obligations of or
otherwise adversely affects, the Seller, shall be effective against the Seller.
SECTION 18. Entire Agreement.
Except as otherwise expressly contemplated hereby, this
Agreement constitutes the entire agreement and understanding of the parties with
respect to the matters addressed herein, and this Agreement supersedes any prior
agreements and/or understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
15
<PAGE> 609
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
ARTESIA MORTGAGE CAPITAL CORPORATION
By:
Name:
Title:
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
By:
Name:
Title:
<PAGE> 610
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached Schedule]
A-1
<PAGE> 611
<TABLE>
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
--------------------------------------------------------------------------------------------------------------------------
CONTROL MORTGAGE
NUMBER LOAN NUMBER LOAN SELLER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY STATE
------- ------------ ----------- --------------------------------- ---------------------------------- --------------- -----
<S> <C> <C> <C> <C> <C> <C>
15 010-00000572 AMCC Senter Road Industrial Property 1875 and 1879 Senter Road San Jose CA
16 010-00000574 AMCC Scottsdale Gateway II 8901 East Mountain View Road Scottsdale AZ
38 010-00000479 AMCC Computer Science Corp Building 200 Commerce Drive Newark DE
39 010-00000558 AMCC Sprint Customer Care Center 8525 Silver Crossing Oklahoma City OK
46 010-00000518 AMCC National Refractories & Minerals 1852 Rutan Drive Livermore CA
Corporation
65 010-00000562 AMCC Lexington Kmart 130 New Circle Road NW Lexington KY
66 010-00000560 AMCC Niagara Kmart 2590 Military Road Niagara NY
85 010-00000439 AMCC Lynnwood Business Center 19231 36th Avenue West Lynnwood WA
86 010-00000440 AMCC Quad 95 14671-14799 NE 95th Street Redmond WA
100 010-00000579 AMCC Foothills Village Centre 3233 East Chandler Boulevard Phoenix AZ
104 010-00000535 AMCC Dover Crossing Shopping Center 1140 Fort Campbell Boulevard Clarksville TN
105 010-00000466 AMCC Plainville Crossing 13 Taunton Street Plainville MA
106 010-00000596 AMCC Staples - Lawton 1207 NW Sheridan Road Lawton OK
108 010-00000450 AMCC Kalevala Village Apartments 5500 SW 180th Avenue Aloha OR
112 010-00000570 AMCC Kolstad Great Dane Warehouse 8501 Naples Street NE Blaine MN
114 010-00000537 AMCC Pederson-Krag Center Building 55 Horizon Drive Huntington NY
117 010-00000569 AMCC Rigid Building Systems 18933 Aldine Westfield Road Houston TX
123 010-00000257 AMCC Kiely Plaza Shopping Center 1052-1090 Kiely Boulevard Santa Clara CA
126 010-00000520 AMCC The Village Apartments 2801 23rd Avenue Southwest Fargo ND
129 010-00000581 AMCC Henderson Building 2223 112 Avenue NE Bellevue WA
130 010-00000188 AMCC Park Plaza 3100 Mowry Avenue Fremont CA
133 020-00000037 AMCC Southcenter Strip Retail Center 16901 Southcenter Parkway Tukwila WA
134 010-00000498 AMCC Fair Oaks Office/Retail Building 12 South Fair Oaks Avenue Pasadena CA
135 010-00000464 AMCC Southview Apartments 1033-1057 College Avenue NE Grand Rapids MI
137 010-00000386 AMCC Hafner Court Apartments 8011-8082 Hafner Court & 1215-1229 University City MO
Westover Court
138 010-00000543 AMCC Loma Vista Center 4676-4696 Market Street San Diego CA
139 010-00000490 AMCC Carroll Road Warehouse 7565-7595 Carroll Road San Diego CA
140 010-00000401 AMCC Sandalwood Apartments 1624 South Fresno Street Fort Smith AR
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
------------------------------------------------------------------------------------------------------------------
ORIGINAL
TERM TO
MONTHLY MATURITY /
CONTROL MORT- CUT-OFF DATE DEBT SERVICE ARD
NUMBER LOAN NUMBER ZIP CODE ORIGINAL BALANCE GAGE RATE NOTE DATE BALANCE PAYMENT (MONTHS)
------- ------------ -------- ---------------- --------- --------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
15 010-00000572 95112 12,600,000 7.9000% 11/30/99 12,540,663 91,577.49 120
16 010-00000574 85258 11,895,000 8.3500% 12/28/99 11,850,277 90,200.77 120
38 010-00000479 19713 6,225,000 8.1500% 12/22/99 6,200,342 46,329.45 120
39 010-00000558 73162 6,200,000 8.1000% 12/16/99 6,175,123 45,926.36 120
46 010-00000518 94550 5,450,000 8.1000% 09/29/99 5,419,369 40,370.75 120
65 010-00000562 40505 3,963,110 8.0500% 12/13/99 3,947,003 29,218.16 120
66 010-00000560 14304 3,855,899 8.0500% 12/13/99 3,840,228 28,427.74 120
85 010-00000439 98036 900,000 7.5000% 05/04/99 886,397 6,650.93 120
86 010-00000440 98052 2,100,000 7.5000% 05/04/99 2,068,260 15,518.82 120
100 010-00000579 85044 2,520,000 8.7000% 02/17/00 2,514,420 19,734.93 60
104 010-00000535 37042 2,400,000 8.2000% 09/23/99 2,386,869 17,946.11 120
105 010-00000466 02762 2,383,733(#) 8.2500% 07/19/99 2,368,545 19,711.26 113
106 010-00000596 73505 2,325,000 8.6000% 05/09/00 2,322,786 18,042.28 120
108 010-00000450 97007 2,280,000 7.6000% 04/28/99 2,243,900 16,997.59 120
112 010-00000570 55449 2,080,000 8.4500% 12/20/99 2,066,956 16,678.70 180
114 010-00000537 11743 2,000,000 7.8000% 09/24/99 1,979,853 15,172.29 120
117 010-00000569 77073 2,000,000 9.1000% 02/04/00 1,974,122 20,566.09 180
123 010-00000257 95051 2,000,000 7.7500% 07/01/98 1,877,073 17,668.43 204
126 010-00000520 58103 1,810,000 8.0500% 11/29/99 1,776,439 16,440.43 204
129 010-00000581 98004 1,675,000 8.9000% 03/06/00 1,669,689 13,942.02 120
130 010-00000188 94538 1,800,000 7.1500% 06/12/98 1,649,377 16,330.24 180
133 020-00000037 98188 1,650,000 7.1500% 10/27/98 1,580,644 12,941.42 240
134 010-00000498 91103 1,600,000 7.8000% 07/29/99 1,580,531 12,137.83 120
135 010-00000464 49503 1,575,000 7.4000% 06/04/99 1,552,733 11,536.86 120
137 010-00000386 63130 1,580,000 7.1000% 10/30/98 1,527,284 11,843.59 120
138 010-00000543 92102 1,500,000 8.6000% 10/28/99 1,488,222 12,179.66 120
139 010-00000490 92121 1,500,000 8.2000% 08/23/99 1,484,375 11,776.68 120
140 010-00000401 72903 1,550,000 7.1500% 12/15/98 1,478,987 12,776.47 216
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
----------------------------------------------------------------------------------------------------------------------------
CALCU-
LATED
REMAINING STATED ORIGINAL CALCULATED
TERM SCHED- ORIGINAL AMORT- REMAINING LOAN CROSS COLLATER- ANTICI-
TO MATURITY / ULED AMORT- IZATION AMORT- BALANCE AT ALIZED PATED
CONTROL ARD MATURITY IZATION TERM TERM IZATION TERM MATURITY / (MORTGAGE REPAY-
NUMBER LOAN NUMBER (MONTHS) DATE (MONTHS) (MONTHS) (MONTHS) ARD LOAN GROUP) MENT DATE
------- ------------ ------------- -------- ------------ -------- ------------ ---------- --------------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
15 010-00000572 112 12/01/09 360 360 352 11,244,027 No NAP
16 010-00000574 113 01/01/10 360 360 353 10,725,940 No NAP
38 010-00000479 113 01/01/10 360 360 353 5,587,186 No NAP
39 010-00000558 113 01/01/10 360 360 353 5,558,205 No NAP
46 010-00000518 110 10/01/09 360 360 350 4,886,979 No NAP
65 010-00000562 113 01/01/10 360 360 353 3,548,667 No NAP
66 010-00000560 113 01/01/10 360 360 353 3,452,668 No NAP
85 010-00000439 106 06/01/09 300 300 286 731,259 Yes (f) NAP
86 010-00000440 106 06/01/09 300 300 286 1,706,274 Yes (f) NAP
100 010-00000579 55 03/01/05 360 360 355 2,430,087 No NAP
104 010-00000535 110 10/01/09 360 360 350 2,157,133 No NAP
105 010-00000466 108 08/01/09 293 260 255 1,856,737 No NAP
106 010-00000596 118 06/01/10 360 360 358 2,108,063 No NAP
108 010-00000450 105 05/01/09 300 300 285 1,858,433 No NAP
112 010-00000570 173 01/01/15 300 300 293 1,417,446 No NAP
114 010-00000537 110 10/01/09 300 300 290 1,639,424 No NAP
117 010-00000569 175 03/01/15 180 177 172 0 No NAP
123 010-00000257 180 08/01/15 204 204 180 0 No NAP
126 010-00000520 196 12/01/16 204 201 193 0 No NAP
129 010-00000581 116 04/01/10 300 300 296 1,415,496 No NAP
130 010-00000188 155 07/01/13 180 180 155 0 No NAP
133 020-00000037 219 11/01/18 240 240 219 0 No NAP
134 010-00000498 108 08/01/09 300 300 288 1,311,595 No NAP
135 010-00000464 107 07/01/09 300 300 287 1,276,041 No NAP
137 010-00000386 99 11/01/08 264 264 243 1,167,023 No NAP
138 010-00000543 111 11/01/09 300 300 291 1,257,524 No NAP
139 010-00000490 109 09/01/09 300 300 289 1,243,622 No NAP
140 010-00000401 197 01/01/17 216 216 197 0 No NAP
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
----------------------------------------------------------------------------------------------------------------------------
INTEREST
CONTROL OWNERSHIP ACCRUAL MASTER SERVICING YIELD MAINTENANCE
NUMBER LOAN NUMBER DEFEASE START DATE DEFEASE END DATE INTEREST METHOD FEE RATE CALCULATION METHOD
------- ------------ ------------------ ---------------- ---------- ---------- ---------------- --------------------
<S> <C> <C> <C> <C> <C> <C> <C>
15 010-00000572 01/01/05 09/30/09 Fee Simple Actual/360 0.0500% NAP
16 010-00000574 02/01/04 09/30/09 Fee Simple Actual/360 0.0500% NAP
38 010-00000479 02/01/03 09/30/09 Fee Simple Actual/360 0.0500% NAP
39 010-00000558 02/01/05 09/30/09 Fee Simple Actual/360 0.0500% NAP
46 010-00000518 11/01/02 07/31/09 Fee Simple Actual/360 0.0500% NAP
65 010-00000562 02/01/05 09/30/09 Fee Simple Actual/360 0.0500% NAP
66 010-00000560 02/01/05 09/30/09 Fee Simple Actual/360 0.0500% NAP
85 010-00000439 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
86 010-00000440 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
100 010-00000579 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
104 010-00000535 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
105 010-00000466 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
106 010-00000596 07/01/05 02/28/10 Fee Simple Actual/360 0.0500% NAP
108 010-00000450 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
112 010-00000570 02/01/05 09/30/14 Fee Simple Actual/360 0.0500% NAP
114 010-00000537 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
117 010-00000569 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
123 010-00000257 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
126 010-00000520 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
129 010-00000581 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
130 010-00000188 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
133 020-00000037 NAP NAP Leasehold 30/360 0.0500% Present Value Type 2
134 010-00000498 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
135 010-00000464 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
137 010-00000386 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
138 010-00000543 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
139 010-00000490 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
140 010-00000401 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
</TABLE>
A-1
<PAGE> 612
<TABLE>
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
------------------------------------------------------------------------------------------------------------------------------------
CONTROL MORTGAGE
NUMBER LOAN NUMBER LOAN SELLER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY STATE
------- ------------ ----------- ------------------------------------- ------------------------------- ---------------- -----
<S> <C> <C> <C> <C> <C> <C>
143 010-00000281 AMCC Greenway Village Shopping Center 4002-4024 South Yale Avenue Tulsa OK
145 010-00000504 AMCC Banneker Building 5840 Banneker Road Columbia MD
146 010-00000333 AMCC 3975 Landmark Street 3975 Landmark Street Culver City CA
148 010-00000370 AMCC 88 Sunnyside Building 88 Sunnyside Boulevard Plainview NY
150 010-00000452 AMCC Plaza Northwest Shopping Center 6050-6080 West 92nd Avenue Westminister CO
152 020-00000043 AMCC Kennewick Square 3321 West Kennewick Avenue Kennewick WA
153 010-00000311 AMCC Party City 2525 State Highway 6 Houston TX
154 010-00000308 AMCC Blue Devils Building 4065 Nelson Avenue Concord CA
155 020-00000054 AMCC Schuck's Retail Center 3402 Kitsap Way Bremerton WA
156 010-00000550 AMCC Northwood Estates 2927 Julia Street Coeur D'Alene ID
157 010-00000280 AMCC Miramar Commerce Center 6904 Miramar Road San Diego CA
158 010-00000462 AMCC South Bay Industrial 2765 Main Street Chula Vista CA
159 010-00000378 AMCC Bloomfield Center 61-81 West Long Lake Road Bloomfield Hills MI
160 020-00000064 AMCC Park Willow Apartments 160 Park Street Reno NV
161 020-00000022 AMCC Belmond Center 12700 Bel-Red Road Bellevue WA
162 010-00000446 AMCC Riverwood Apartments 506 West Orchard Lane Carlsbad NM
164 020-00000034 AMCC PGE Buildings 14655 & 14725 SW 72nd Avenue Tigard OR
165 010-00000312 AMCC Carroll Canyon Road Industrial Condos 7030-7054 Carroll Canyon Road San Diego CA
166 010-00000429 AMCC Myrex Manufacturing Plant & Corporate 9119 Weedy Lane Houston TX
Offices
168 010-00000484 AMCC Walnut Creek Shopping Center 987 North Walnut Creek Drive Mansfield TX
169 010-00000465 AMCC Quail Hollow Mini Storage 12833 Covey Circle Sonora CA
171 010-00000350 AMCC Freeway Industries Center 2603-2645 East Jensen Avenue Fresno CA
172 020-00000051 AMCC AT&T Building 18715-120th Avenue N.E. Bothell WA
173 010-00000275 AMCC PBR III 720-730 West 17th Street Costa Mesa CA
175 010-00000266 AMCC Knoxville Square 9126-9128 North Lindbergh Drive Peoria IL
177 010-00000349 AMCC Larkfield Road Office Building 777 Larkfield Road Commack NY
178 010-00000528 AMCC Kings Kourt Apartments 2500 & 2504 South Dakota Avenue Sioux Falls SD
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
-----------------------------------------------------------------------------------------------------------------------------------
ORIGINAL
TERM TO
MONTHLY MATURITY /
CONTROL MORT- CUT-OFF DATE DEBT SERVICE ARD
NUMBER LOAN NUMBER ZIP CODE ORIGINAL BALANCE GAGE RATE NOTE DATE BALANCE PAYMENT (MONTHS)
------- ------------ -------- ---------------- --------- --------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
143 010-00000281 74135 1,470,000 7.3000% 07/16/98 1,428,903 10,672.67 120
145 010-00000504 21044 1,400,000 8.0000% 07/15/99 1,390,238 10,272.71 120
146 010-00000333 90232 1,375,000 7.4000% 08/26/98 1,326,621 10,563.39 120
148 010-00000370 11803 1,350,000 7.5000% 10/09/98 1,318,223 9,976.39 120
150 010-00000452 80030 1,300,000 8.2000% 05/04/99 1,282,786 10,206.46 120
152 020-00000043 99336 1,300,000 7.2000% 09/30/98 1,266,282 9,354.66 120
153 010-00000311 77082 1,285,000 7.5000% 08/19/98 1,251,703 9,496.04 144
154 010-00000308 94520 1,350,000 7.4000% 08/19/98 1,248,696 12,438.08 180
155 020-00000054 98312 1,275,000 7.9000% 11/30/98 1,248,616 9,756.35 120
156 010-00000550 83815 1,250,000 8.2500% 10/27/99 1,244,639 9,390.84 120
157 010-00000280 92121 1,300,000 7.5000% 06/25/98 1,240,127 10,472.72 120
158 010-00000462 91911 1,250,000 8.3000% 06/30/99 1,235,138 9,897.43 120
159 010-00000378 48304 1,250,000 6.9500% 10/29/98 1,217,630 8,794.91 120
160 020-00000064 89502 1,210,000 8.2500% 10/13/99 1,199,831 9,540.25 120
161 020-00000022 98005 1,300,000 7.4500% 06/18/98 1,193,708 12,014.26 180
162 010-00000446 88220 1,200,000 8.6000% 06/18/99 1,174,346 10,489.96 240
164 020-00000034 97224 1,200,000 7.3000% 09/15/98 1,113,460 10,988.21 180
165 010-00000312 92121 1,141,000 7.4000% 07/29/98 1,109,656 8,357.82 120
166 010-00000429 77093 1,220,000 8.1000% 03/05/99 1,108,351 14,866.52 120
168 010-00000484 76063 1,100,000 8.3000% 07/29/99 1,092,922 8,302.64 120
169 010-00000465 95370 1,100,000 8.4000% 05/20/99 1,085,992 8,783.50 120
171 010-00000350 93706 1,150,000 7.5000% 11/13/98 1,076,254 10,660.65 180
172 020-00000051 98011 1,100,000 7.0000% 12/22/98 1,074,565 7,774.58 120
173 010-00000275 92626 1,060,000 7.3000% 08/03/98 1,031,555 7,695.94 120
175 010-00000266 61615 1,065,000 7.7000% 06/26/98 1,017,191 8,710.28 144
177 010-00000349 11725 1,010,000 7.0500% 09/18/98 983,112 7,170.72 132
178 010-00000528 57105 990,000 8.0500% 07/23/99 978,515 7,673.81 120
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
------------------------------------------------------------------------------------------------------------------------------------
CALCU-
LATED
REMAINING STATED ORIGINAL CALCULATED
TERM SCHED- ORIGINAL AMORT- REMAINING LOAN CROSS COLLATER- ANTICI-
TO MATURITY / ULED AMORT- IZATION AMORT- BALANCE AT ALIZED PATED
CONTROL ARD MATURITY IZATION TERM TERM IZATION TERM MATURITY / (MORTGAGE REPAY-
NUMBER LOAN NUMBER (MONTHS) DATE (MONTHS) (MONTHS) (MONTHS) ARD LOAN GROUP) MENT DATE
------- ------------ ------------- -------- ------------ -------- ------------ ---------- --------------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
143 010-00000281 96 08/01/08 300 300 276 1,187,025 No NAP
145 010-00000504 108 08/01/09 360 360 348 1,252,438 No NAP
146 010-00000333 97 09/01/08 264 264 241 1,025,972 No NAP
148 010-00000370 99 11/01/08 300 300 279 1,096,485 No NAP
150 010-00000452 106 06/01/09 300 300 286 1,078,093 No NAP
152 020-00000043 98 10/01/08 300 300 278 1,046,504 No NAP
153 010-00000311 121 09/01/10 300 300 277 969,258 No NAP
154 010-00000308 157 09/01/13 180 180 157 0 No NAP
155 020-00000054 100 12/01/08 300 300 280 1,048,021 No NAP
156 010-00000550 112 12/01/09 360 360 352 1,124,770 No NAP
157 010-00000280 95 07/01/08 240 240 215 901,332 No NAP
158 010-00000462 107 07/01/09 300 300 287 1,039,757 No NAP
159 010-00000378 99 11/01/08 300 300 279 998,317 No NAP
160 020-00000064 111 11/01/09 300 300 291 1,004,561 No NAP
161 020-00000022 155 07/01/13 180 180 155 0 No NAP
162 010-00000446 227 07/01/19 240 240 227 0 No NAP
164 020-00000034 158 10/01/13 180 180 158 0 No NAP
165 010-00000312 96 08/01/08 300 300 276 924,159 No NAP
166 010-00000429 104 04/01/09 120 120 104 0 No NAP
168 010-00000484 108 08/01/09 360 360 348 991,031 No NAP
169 010-00000465 106 06/01/09 300 300 286 917,392 No NAP
171 010-00000350 160 12/01/13 180 180 160 0 No NAP
172 020-00000051 101 01/01/09 300 300 281 879,858 No NAP
173 010-00000275 97 09/01/08 300 300 277 855,795 No NAP
175 010-00000266 119 07/01/10 240 240 215 643,451 No NAP
177 010-00000349 110 10/01/09 300 300 278 780,150 No NAP
178 010-00000528 108 08/01/09 300 300 288 817,460 No NAP
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
------------------------------------------------------------------------------------------------------------------------------------
INTEREST
CONTROL OWNERSHIP ACCRUAL MASTER SERVICING YIELD MAINTENANCE
NUMBER LOAN NUMBER DEFEASE START DATE DEFEASE END DATE INTEREST METHOD FEE RATE CALCULATION METHOD
------- ------------ ------------------ ---------------- ---------- ---------- ---------------- --------------------
<S> <C> <C> <C> <C> <C> <C> <C>
143 010-00000281 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
145 010-00000504 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
146 010-00000333 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
148 010-00000370 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
150 010-00000452 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
152 020-00000043 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
153 010-00000311 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 1
154 010-00000308 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
155 020-00000054 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
156 010-00000550 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
157 010-00000280 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
158 010-00000462 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
159 010-00000378 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
160 020-00000064 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
161 020-00000022 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
162 010-00000446 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
164 020-00000034 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
165 010-00000312 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
166 010-00000429 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
168 010-00000484 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
169 010-00000465 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
171 010-00000350 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
172 020-00000051 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
173 010-00000275 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
175 010-00000266 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
177 010-00000349 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
178 010-00000528 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
</TABLE>
A-2
<PAGE> 613
<TABLE>
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
--------------------------------------------------------------------------------------------------------------------------------
CONTROL MORTGAGE
NUMBER LOAN NUMBER LOAN SELLER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY STATE
------- ------------ ----------- ----------------------------------- ------------------------------- -------------- -----
<S> <C> <C> <C> <C> <C> <C>
179 020-00000036 AMCC Philomath Self-Storage 2809 Main Street Philomath OR
180 010-00000398 AMCC Aztec Building 4116 Avenida Cochise Sierra Vista AZ
181 010-00000279 AMCC Stone Mountain Carpet Mill Outlet 3501 Pan American Freeway NE Albuquerque NM
183 010-00000258 AMCC Williams Road Office Building 3707 Williams Road San Jose CA
184 010-00000267 AMCC Wheeling Service Center 3728-3770 Wheeling Street Aurora CO
185 010-00000447 AMCC 650 New Road Office Building 650 New Road Linwood NJ
187 010-00000385 AMCC The Certex Building 1460 West Canal Court Littleton CO
188 010-00000461 AMCC Pheasant Run Shopping Center 9830-9860 Mallard Drive Laurel MD
189 010-00000331 AMCC Runnin' Rebel Plaza 4530 South Maryland Parkway Las Vegas NV
190 010-00000473 AMCC Vic Huber Photography Building 1731 Reynolds Avenue Irvine CA
191 010-00000434 AMCC Hollywood Video-Westland 31250 Michigan Avenue Westland MI
193 010-00000463 AMCC National Die & Button Mould Company 70 Moonachie Avenue Moonachie NJ
194 010-00000371 AMCC Metropolitan Square Shopping Center 3223-3269 East 3300 South Salt Lake City UT
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
--------------------- ----------------------------------------------------------------------------------------
ORIGINAL
TERM TO
MONTHLY MATURITY /
CONTROL MORT- CUT-OFF DATE DEBT SERVICE ARD
NUMBER LOAN NUMBER ZIP CODE ORIGINAL BALANCE GAGE RATE NOTE DATE BALANCE PAYMENT (MONTHS)
------- ------------ -------- ---------------- --------- --------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
179 020-00000036 97370 1,000,000 7.3500% 09/29/98 974,736 7,292.62 120
180 010-00000398 85635 990,000 7.5000% 11/02/98 926,514 9,177.42 180
181 010-00000279 87107 1,000,000 7.5500% 07/07/98 922,364 9,298.56 180
183 010-00000258 95128 945,000 7.5500% 06/16/98 918,706 7,014.23 120
184 010-00000267 80239 1,000,000 7.5000% 06/09/98 918,553 9,270.12 180
185 010-00000447 08221 925,000 8.3000% 05/24/99 912,988 7,324.10 120
187 010-00000385 80120 960,000 7.2500% 10/30/98 893,859 8,763.49 180
188 010-00000461 20708 850,000 8.4000% 05/25/99 831,321 7,322.79 120
189 010-00000331 89119 900,000 7.7000% 07/23/98 830,942 8,445.73 180
190 010-00000473 92714 830,000 8.5000% 07/14/99 821,183 6,683.39 120
191 010-00000434 48186 822,500 7.9000% 02/24/99 808,449 6,293.80 120
193 010-00000463 07074 800,000 8.6000% 06/17/99 784,289 6,993.31 120
194 010-00000371 84109 900,000 6.7500% 10/08/98 782,840 10,334.18 120
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
--------------------- -----------------------------------------------------------------------------------------------------
CALCU-
LATED
REMAINING STATED ORIGINAL CALCULATED
TERM SCHED- ORIGINAL AMORT- REMAINING LOAN CROSS COLLATER- ANTICI-
TO MATURITY / ULED AMORT- IZATION AMORT- BALANCE AT ALIZED PATED
CONTROL ARD MATURITY IZATION TERM TERM IZATION TERM MATURITY / (MORTGAGE REPAY-
NUMBER LOAN NUMBER (MONTHS) DATE (MONTHS) (MONTHS) (MONTHS) ARD LOAN GROUP) MENT DATE
------- ------------ ------------- -------- ------------ -------- ------------ ---------- --------------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
179 020-00000036 98 10/01/08 300 300 278 808,698 No NAP
180 010-00000398 160 12/01/13 180 180 160 0 No NAP
181 010-00000279 156 08/01/13 180 180 156 0 No NAP
183 010-00000258 95 07/01/08 300 300 275 769,014 No NAP
184 010-00000267 155 07/01/13 180 180 155 0 No NAP
185 010-00000447 106 06/01/09 300 300 286 769,280 No NAP
187 010-00000385 159 11/01/13 180 180 159 0 No NAP
188 010-00000461 106 06/01/09 240 240 226 608,014 No NAP
189 010-00000331 156 08/01/13 180 180 156 0 No NAP
190 010-00000473 108 08/01/09 300 300 288 694,114 No NAP
191 010-00000434 103 03/01/09 300 300 283 676,408 No NAP
193 010-00000463 107 07/01/09 240 240 227 576,263 No NAP
194 010-00000371 99 11/01/08 120 120 99 0 No NAP
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
--------------------- ----------------------------------------------------------------------------------------------------
INTEREST
CONTROL OWNERSHIP ACCRUAL MASTER SERVICING YIELD MAINTENANCE
NUMBER LOAN NUMBER DEFEASE START DATE DEFEASE END DATE INTEREST METHOD FEE RATE CALCULATION METHOD
------- ------------ ------------------ ---------------- ---------- ---------- ---------------- --------------------
<S> <C> <C> <C> <C> <C> <C> <C>
179 020-00000036 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
180 010-00000398 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 1
181 010-00000279 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
183 010-00000258 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
184 010-00000267 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
185 010-00000447 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
187 010-00000385 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
188 010-00000461 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
189 010-00000331 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 1
190 010-00000473 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
191 010-00000434 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
193 010-00000463 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
194 010-00000371 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
</TABLE>
A-3
<PAGE> 614
<TABLE>
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
--------------------------------------------------------------------------------------------------------------------------------
CONTROL MORTGAGE
NUMBER LOAN NUMBER LOAN SELLER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY STATE
------- ------------ ----------- ----------------------------------- ------------------------------- -------------- -----
<S> <C> <C> <C> <C> <C> <C>
172 020-00000051 AMCC AT&T Building 18715-120th Avenue N.E. Bothell WA
173 010-00000275 AMCC PBR III 720-730 West 17th Street Costa Mesa CA
175 010-00000266 AMCC Knoxville Square 9126-9128 North Lindbergh Drive Peoria IL
177 010-00000349 AMCC Larkfield Road Office Building 777 Larkfield Road Commack NY
178 010-00000528 AMCC Kings Kourt Apartments 2500 & 2504 South Dakota Avenue Sioux Falls SD
179 020-00000036 AMCC Philomath Self-Storage 2809 Main Street Philomath OR
180 010-00000398 AMCC Aztec Building 4116 Avenida Cochise Sierra Vista AZ
181 010-00000279 AMCC Stone Mountain Carpet Mill Outlet 3501 Pan American Freeway NE Albuquerque NM
183 010-00000258 AMCC Williams Road Office Building 3707 Williams Road San Jose CA
184 010-00000267 AMCC Wheeling Service Center 3728-3770 Wheeling Street Aurora CO
185 010-00000447 AMCC 650 New Road Office Building 650 New Road Linwood NJ
187 010-00000385 AMCC The Certex Building 1460 West Canal Court Littleton CO
188 010-00000461 AMCC Pheasant Run Shopping Center 9830-9860 Mallard Drive Laurel MD
189 010-00000331 AMCC Runnin' Rebel Plaza 4530 South Maryland Parkway Las Vegas NV
190 010-00000473 AMCC Vic Huber Photography Building 1731 Reynolds Avenue Irvine CA
191 010-00000434 AMCC Hollywood Video-Westland 31250 Michigan Avenue Westland MI
193 010-00000463 AMCC National Die & Button Mould Company 70 Moonachie Avenue Moonachie NJ
194 010-00000371 AMCC Metropolitan Square Shopping Center 3223-3269 East 3300 South Salt Lake City UT
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
--------------------- ----------------------------------------------------------------------------------------
ORIGINAL
TERM TO
MONTHLY MATURITY /
CONTROL MORT- CUT-OFF DATE DEBT SERVICE ARD
NUMBER LOAN NUMBER ZIP CODE ORIGINAL BALANCE GAGE RATE NOTE DATE BALANCE PAYMENT (MONTHS)
------- ------------ -------- ---------------- --------- --------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
172 020-00000051 98011 1,100,000 7.0000% 12/22/98 1,074,565 7,774.58 120
173 010-00000275 92626 1,060,000 7.3000% 08/03/98 1,031,555 7,695.94 120
175 010-00000266 61615 1,065,000 7.7000% 06/26/98 1,017,191 8,710.28 144
177 010-00000349 11725 1,010,000 7.0500% 09/18/98 983,112 7,170.72 132
178 010-00000528 57105 990,000 8.0500% 07/23/99 978,515 7,673.81 120
179 020-00000036 97370 1,000,000 7.3500% 09/29/98 974,736 7,292.62 120
180 010-00000398 85635 990,000 7.5000% 11/02/98 926,514 9,177.42 180
181 010-00000279 87107 1,000,000 7.5500% 07/07/98 922,364 9,298.56 180
183 010-00000258 95128 945,000 7.5500% 06/16/98 918,706 7,014.23 120
184 010-00000267 80239 1,000,000 7.5000% 06/09/98 918,553 9,270.12 180
185 010-00000447 08221 925,000 8.3000% 05/24/99 912,988 7,324.10 120
187 010-00000385 80120 960,000 7.2500% 10/30/98 893,859 8,763.49 180
188 010-00000461 20708 850,000 8.4000% 05/25/99 831,321 7,322.79 120
189 010-00000331 89119 900,000 7.7000% 07/23/98 830,942 8,445.73 180
190 010-00000473 92714 830,000 8.5000% 07/14/99 821,183 6,683.39 120
191 010-00000434 48186 822,500 7.9000% 02/24/99 808,449 6,293.80 120
193 010-00000463 07074 800,000 8.6000% 06/17/99 784,289 6,993.31 120
194 010-00000371 84109 900,000 6.7500% 10/08/98 782,840 10,334.18 120
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
--------------------- -----------------------------------------------------------------------------------------------------
CALCU-
LATED
REMAINING STATED ORIGINAL CALCULATED
TERM SCHED- ORIGINAL AMORT- REMAINING LOAN CROSS COLLATER- ANTICI-
TO MATURITY / ULED AMORT- IZATION AMORT- BALANCE AT ALIZED PATED
CONTROL ARD MATURITY IZATION TERM TERM IZATION TERM MATURITY / (MORTGAGE REPAY-
NUMBER LOAN NUMBER (MONTHS) DATE (MONTHS) (MONTHS) (MONTHS) ARD LOAN GROUP) MENT DATE
------- ------------ ------------- -------- ------------ -------- ------------ ---------- --------------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
172 020-00000051 101 01/01/09 300 300 281 879,858 No NAP
173 010-00000275 97 09/01/08 300 300 277 855,795 No NAP
175 010-00000266 119 07/01/10 240 240 215 643,451 No NAP
177 010-00000349 110 10/01/09 300 300 278 780,150 No NAP
178 010-00000528 108 08/01/09 300 300 288 817,460 No NAP
179 020-00000036 98 10/01/08 300 300 278 808,698 No NAP
180 010-00000398 160 12/01/13 180 180 160 0 No NAP
181 010-00000279 156 08/01/13 180 180 156 0 No NAP
183 010-00000258 95 07/01/08 300 300 275 769,014 No NAP
184 010-00000267 155 07/01/13 180 180 155 0 No NAP
185 010-00000447 106 06/01/09 300 300 286 769,280 No NAP
187 010-00000385 159 11/01/13 180 180 159 0 No NAP
188 010-00000461 106 06/01/09 240 240 226 608,014 No NAP
189 010-00000331 156 08/01/13 180 180 156 0 No NAP
190 010-00000473 108 08/01/09 300 300 288 694,114 No NAP
191 010-00000434 103 03/01/09 300 300 283 676,408 No NAP
193 010-00000463 107 07/01/09 240 240 227 576,263 No NAP
194 010-00000371 99 11/01/08 120 120 99 0 No NAP
<CAPTION>
SCHEDULE OF AMCC MORTGAGE LOANS
--------------------- ----------------------------------------------------------------------------------------------------
INTEREST
CONTROL OWNERSHIP ACCRUAL MASTER SERVICING YIELD MAINTENANCE
NUMBER LOAN NUMBER DEFEASE START DATE DEFEASE END DATE INTEREST METHOD FEE RATE CALCULATION METHOD
------- ------------ ------------------ ---------------- ---------- ---------- ---------------- --------------------
<S> <C> <C> <C> <C> <C> <C> <C>
172 020-00000051 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
173 010-00000275 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
175 010-00000266 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
177 010-00000349 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
178 010-00000528 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
179 020-00000036 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
180 010-00000398 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 1
181 010-00000279 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
183 010-00000258 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
184 010-00000267 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
185 010-00000447 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
187 010-00000385 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
188 010-00000461 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
189 010-00000331 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 1
190 010-00000473 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
191 010-00000434 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
193 010-00000463 NAP NAP Fee Simple Actual/360 0.0500% Present Value Type 2
194 010-00000371 NAP NAP Fee Simple 30/360 0.0500% Present Value Type 2
</TABLE>
5
<PAGE> 615
EXHIBIT B
The Seller hereby represents and warrants, as of the Closing Date,
that:
(a) The Seller is a duly formed corporation, validly existing
and in good standing under the laws of the State of Delaware.
(b) The Seller 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 Purchaser, 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.
(d) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this Agreement by
the Seller, will not violate the Seller's certificate of incorporation or
by-laws 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 Seller 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
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.
(f) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the Seller from
entering into this Agreement or, in the Seller's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of the
Seller 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 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.
B-1
<PAGE> 616
(h) The transfer of the Mortgage Loans by the Seller to the
Purchaser, as contemplated herein, is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(i) The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
(j) The Seller will be solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
(k) After giving effect to its transfer of the Mortgage Loans
to the Purchaser, as provided herein, the value of the Seller's assets, either
taken at their present fair saleable value or at fair valuation, will exceed the
amount of the Seller's debts and obligations, including contingent and
unliquidated debts and obligations of the Seller, and the Seller will not be
left with unreasonably small assets or capital with which to engage in and
conduct its business.
(l) 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.
(m) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller are pending or contemplated.
B-2
<PAGE> 617
EXHIBIT C
The Seller hereby represents and warrants, as of the Closing
Date (or as of such other date specified in the particular representation and
warranty) with respect to each Mortgage Loan, subject to the exceptions attached
hereto as Schedule C-1, that:
(1) Immediately prior to the transfer thereof by
Seller to the Purchaser and the assignment thereof to
the Trustee, Seller had good and marketable title to,
and was the sole owner and holder of, such Mortgage
Loan, free and clear of any and all liens, charges,
encumbrances or any other ownership, participation or
other interests on, in or to such Mortgage Loan
(other than, in certain cases, the right of the
Master Servicer or a Sub-Servicer to master service
or primary service such Mortgage Loan). Seller has
validly and effectively conveyed to the Purchaser all
legal and beneficial interest in and to such Mortgage
Loan free and clear of any pledge, lien or security
interest.
(2) The Seller has no knowledge of any material
default (or any event, circumstance or condition that
would under the Mortgage Loan documents be considered
a material default) by a related Borrower resulting
from the material representations and warranties made
by such Borrower in the related Mortgage Loan
documents being untrue at the time of origination of
the related Mortgage Loan. Seller had full right and
authority to sell, assign and transfer such Mortgage
Loan to the Purchaser; and each Mortgage Loan is
properly endorsed as provided in the Pooling and
Servicing Agreement, and such endorsement is genuine.
(3) The information pertaining to such Mortgage Loan
set forth in the Mortgage Loan Schedule was true and
correct, and met the requirements of this Agreement
and the Pooling and Servicing Agreement, in all
material respects as of the Cut-off Date.
(4) Such Mortgage Loan was not, as of the Cut-off
Date or at any time since origination, more than
thirty (30) days delinquent in respect of any
Scheduled P&I Payment required thereunder, without
giving effect to any applicable grace period.
(5) Each Mortgage securing such Mortgage Loan
constitutes a legal, valid and, subject to the
exceptions in paragraph 12 below, enforceable first
lien upon the Borrower's interest in the related
Mortgaged Property, including, without limitation,
all buildings located thereon and all fixtures
attached thereto, subject only to (and such Mortgaged
Property is free and clear of all encumbrances and
liens having priority over the lien of such
C-1
<PAGE> 618
Mortgage, except for) (a) the lien of current real
property taxes and assessments not yet due and
payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public
record specifically referred to in the lender's title
insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of
such Mortgage Loan or approved after origination,
which do not materially and adversely affect the
current use of the Mortgaged Property, the security
interest intended to be provided by such Mortgage or
the value of the Mortgaged Property, (c) the rights
of tenants (whether under ground leases or space
leases) at the Mortgaged Property to remain following
a foreclosure or similar proceeding (provided that
such tenants are performing under such leases), (d)
exceptions and exclusions specifically referred to in
the lender's title insurance policy issued or, as
evidenced by a "marked-up" commitment, to be issued
in respect of such Mortgage Loan, and (e) if such
Mortgage Loan is cross-collateralized with any other
Mortgage Loan, the lien of the Mortgage for such
other Mortgage Loan (the exceptions set forth in the
foregoing clauses (a), (b), (c), (d) and (e),
collectively, "Permitted Encumbrances"). Such
Permitted Encumbrances do not materially interfere
with the security intended to be provided by the
related Mortgage(s), or materially and adversely
affect the current use or value of the related
Mortgaged Property or the current ability of such
Mortgaged Property to generate Net Operating Income
sufficient to service the Mortgage Loan. Except as
contemplated by clause (e) of the second preceding
sentence, none of the Permitted Encumbrances are
mortgage liens that are senior to or pari passu with
the lien of the related Mortgage. With respect to
personal property of the related Borrower
constituting part of the related Mortgaged Property
which is material to the value of the related real
estate constituting part of such Mortgaged Property,
or which, if no UCC financing statement were filed
with respect to such personal property, would result
in a material impairment of the security for the
related Mortgage Loan (such personal property is
herein referred to as "Material Personal Property"),
(a) a UCC financing statement has been filed and/or
recorded in all places necessary to perfect a valid
security interest in the Material Personal Property;
(b) an assignment of such UCC financing statement has
been executed by the Seller in favor of the Trustee
or in blank (which the Trustee or its designated
agent may complete and file in the same filing office
in which such UCC financing statement was filed); and
(c) any security agreement, chattel mortgage or
equivalent document related to and delivered in
connection with such Mortgage Loan establishes and
creates a valid and, subject to the exceptions in
paragraph 12 below, enforceable first lien and
C-2
<PAGE> 619
first priority security interest in the property of
the related Borrower described therein, subject to
any purchase money security interest or any security
interest to secure a line of credit or similar
financing attaching subsequent to the date of
origination of such Mortgage Loan and of which Seller
has no actual (as opposed to constructive) knowledge.
(6) The lien of each related Mortgage is insured by
an American Land Title Insurance ("ALTA") lender's
title insurance policy, or its equivalent as adopted
in the applicable jurisdiction, issued by a
nationally recognized title insurance company or its
subsidiary, insuring the originator of such Mortgage
Loan, its successors and assigns (as sole insured),
as to the first priority lien of the Mortgage in the
original principal amount of such Mortgage Loan after
all advances of principal, subject only to Permitted
Encumbrances (or, if a title insurance policy has not
yet been issued in respect of any Mortgage Loan, a
policy meeting the foregoing description is evidenced
by a commitment for title insurance "marked-up" at
the closing of such Mortgage Loan). 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 Seller's
knowledge as of the Closing Date, no material claims
have been made thereunder and no claims have been
paid thereunder (and Seller has not received notice
of any material claims having been made or paid
thereunder). No holder of the related Mortgage has
done, by act or omission, anything that would, and
Seller has no actual knowledge of any other
circumstance that would, materially impair the
coverage under such title policy. Immediately
following the transfer and assignment of the related
Mortgage Loan to the Purchaser, such title policy
(or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the
Purchaser without the consent of or notice to the
insurer. To Seller's knowledge, the insurance company
that issued (or is obligated to issue) such title
policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property
is located. Such policy contains no material
exclusion for or affirmatively insures (except for
any Mortgaged Property located in jurisdictions where
such affirmative insurance is not available) (a)
access to a physically open street, (b) encroachments
of any part of the buildings thereon over easements,
(c) that the area shown on the survey is the same as
the property legally described in the Mortgage, (d)
that the Mortgaged Property constitutes one or more
separate tax parcels containing no other real
property, and (e) that, to the extent the Mortgaged
Property consists of more than one parcel used as a
single tract of real property (other than separate
parcels with respect to Mortgage Loans secured by
more than one property), such parcels are
C-3
<PAGE> 620
contiguous. The Mortgage has been properly recorded
on the related Mortgaged Property and all applicable
Mortgage recording taxes have been paid.
(7) Neither Seller nor, to Seller's knowledge, any
prior holder of such Mortgage Loan has waived any
material default, breach, violation or event of
acceleration existing under the related Mortgage or
Mortgage Note, except that certain post-closing
conditions or requirements that would either be
reasonably acceptable to a prudent commercial lender
or that would not otherwise materially and adversely
affect the security intended to be provided for such
Mortgage Loan, may not have yet been completed.
(8) As of the Closing Date there is no valid offset,
defense, counterclaim or right to rescission,
including the defense of usury, with respect to any
of the Mortgage Note, Mortgage or other agreements
executed in connection therewith (except in each case
with respect to any excess interest on an ARD Loan
after the related Anticipated Repayment Date and any
Default Interest, late charges, Prepayment Premiums
and Yield Maintenance Charges).
(9) As of the Cut-off Date and as of the Closing
Date, to Seller's knowledge, there is no proceeding
pending or threatened for condemnation affecting all
or a material portion of the related Mortgaged
Property. To the Seller's knowledge based upon a site
inspection conducted in connection with the
origination of the Mortgage Loan and a review of the
related engineering report, there is no unremedied
damage at the related Mortgaged Property that
materially and adversely affects the use, operation,
or value of such Mortgaged Property (except in such
case where an escrow of funds or letter of credit
exists in an amount at least equal to 125% of the
amount estimated to be sufficient to effect the
necessary repairs and maintenance).
(10) At origination, such Mortgage Loan complied in
all material respects with all requirements of
federal, state and local laws (including, without
limitation, laws pertaining to usury) relating to the
origination, funding and terms of such Mortgage Loan
or, to the best of Seller's knowledge, servicing of
such Mortgage Loan.
(11) The proceeds of such Mortgage Loan have been
fully disbursed, and there is no requirement for
future advances thereunder.
C-4
<PAGE> 621
(12) The Mortgage and Mortgage Note for such Mortgage
Loan and all other documents to which the related
Borrower is a party and which evidence or secure such
Mortgage Loan, are each the legal, valid and binding
obligations of the related Borrower (subject to any
non-recourse provisions and any applicable state
anti-deficiency legislation), enforceable in
accordance with their respective terms, except as
such enforcement may be limited by bankruptcy,
insolvency, reorganization, redemption, fraudulent
conveyance, receivership, moratorium or other laws
relating to or affecting the rights of creditors
generally and by general principles of equity, and
except that certain provisions of such Mortgage Loan
documents are or may be unenforceable in whole or in
part under applicable state or federal laws, but
neither the application of any such laws to any such
provisions nor the inclusion of any such provisions
renders any of the Mortgage Loan documents invalid as
a whole, and such Mortgage Loan documents taken as a
whole are enforceable to the extent necessary and
customary for the practical realization of the rights
and benefits afforded thereby.
(13) The related Mortgaged Property is insured by a
fire and extended perils insurance policy, issued by
an insurer meeting the requirements of such Mortgage
Loan and having a claims-paying or financial strength
rating of at least A:VIII from A.M. Best Company or
"A" (or the equivalent) from Moody's Investor
Service, Inc., Standard & Poor's Rating Services, or
its equivalent, in an amount at least equal to the
lesser of the outstanding principal balance of such
Mortgage Loan and 100% of the full replacement cost
of the improvements located on the related Mortgaged
Property, on a full replacement cost basis (or
without deduction for depreciation)(excepting,
however, each Mortgaged Property which is a
multifamily mobile home park without material
improvements), with (if applicable) an appropriate
endorsement to avoid the application of any
co-insurance provisions with respect to such
Mortgaged Property, and 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 an amount customarily required
by institutional lenders, and (except if such
Mortgaged Property is operated as a mobile home park)
by business interruption or rental loss insurance in
an amount equal to the gross rentals for at least a
12-month period (or an 18 month period for a
Mortgaged Property which is not an office, retail,
self storage, industrial, multifamily mobile home
park or mixed use of the foregoing). An architectural
or engineering consultant has performed an analysis
of each of the Mortgaged Properties located in
seismic zones 3 or 4 in order to evaluate the
structural and seismic condition of such property,
for the sole purpose of assessing the probable
maximum loss ("PML")
C-5
<PAGE> 622
for the property in the event of an earthquake. In
such instance the PML was based on a return period of
not less than 100 years, an exposure period of 50
years and a 10% probability of excedence. If the
resulting report concluded the PML would exceed 20%
of the amount of the replacement costs of the
improvements, earthquake insurance on such Mortgaged
Property was obtained by an insurer rated at least
A:VIII by A.M. Best Company or "A" (or the
equivalent) from Moody's Investor Services, Inc.,
Standard & Poor's Rating Services or its equivalent.
In addition, no such insurance policy provides that
it may be canceled, endorsed, altered or reissued to
effect a change in coverage unless such insurer shall
have first given the mortgagee under such Mortgage
Loan thirty (30) days' prior written notice, and no
notice has been received as of the date hereof; all
premiums required to be paid on such policy have been
paid; all such policies contain a standard mortgagee
clause for the benefit of the holder of the related
Mortgage Loan; and the related Mortgage obligates the
related Borrower to maintain all such insurance and,
at the related Borrower's failure to do so,
authorizes the mortgagee under such Mortgage Loan to
purchase such insurance at the related Borrower's
cost and expense and to seek reimbursement from such
Borrower. Further, all insurance coverage required
under the related Mortgage is in full force and
effect with respect to the related Mortgaged
Property, and if the related Mortgaged Property is
located in a federally designated special flood
hazard area, the related Borrower is required to
maintain flood insurance in respect thereof
(exclusive of any parking lot or unused or
undeveloped portion thereof) to the extent available
under the National Flood Insurance Act of 1968. To
Seller's knowledge, the insurer issuing each of the
foregoing insurance policies is qualified to write
insurance in the jurisdiction where the related
Mortgaged Property is located. Subject to clause (I)
of paragraph 51 below with respect to ground lease
properties, any insurance proceeds in respect of a
casualty loss or taking, will be applied either to
(A) the repair or restoration of all or part of the
related Mortgaged Property or (B) to the payment of
the outstanding principal balance of such Mortgage
Loan together with any accrued interest thereon,
except that in the case of a ground-leased property
casualty and condemnation proceeds are required to be
paid first to the owner of the fee interest in the
related property in accordance with terms of the
related ground lease and then in accordance with the
related Mortgage.
(14) A "Phase I" environmental site assessment
meeting ASTM requirements (or an update of a
previously conducted assessment) was performed by a
licensed third-party professional experienced in
environmental matters with respect to the related
Mortgaged
C-6
<PAGE> 623
Property within the 24-month period prior to the
Closing Date, and in the case of the Mortgage Loan
identified on the Mortgage Loan Schedule as Niagra
Kmart, a "Phase II" environmental site assessment was
performed in connection with the origination of each
such loan. Either (x) the related environmental
reports did not reveal any known circumstances or
conditions with respect to the related Mortgaged
Property that rendered such Mortgaged Property, at
the date(s) of such environmental report(s), in
material violation of any applicable environmental
laws or (y) if any such environmental report did
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 either (i) the expenditure of
funds necessary to effect such remediation is not
material in relation to the outstanding principal
balance of the related Mortgage Loan, or (ii) a
sufficient escrow of funds exists for purposes of
effecting such remediation (and the Borrower has
covenanted in the Mortgage Loan documents to perform
such remediation), or (iii) 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 recommended by
the environmental site assessment. Seller has no
knowledge of any environmental condition or
circumstance affecting such Mortgaged Property and
not disclosed in the related environmental report(s),
which would impact such Mortgaged Property's soil or
groundwater quality or require remediation by the
related Borrower under, or otherwise would be a
material violation of, applicable environmental law.
All such environmental assessments that were in the
possession of the Seller and that relate to a
Mortgaged Property which is insured by an
environmental insurance policy have been delivered to
or disclosed to the environmental insurance carrier
issuing such policy prior to the issuance of such
policy. The related Mortgage or other loan documents
contain covenants on the part of the related Borrower
requiring its compliance with applicable federal and
state environmental laws and regulations in respect
of the related Mortgaged Property. To Seller's actual
knowledge, in reliance on such environmental reports,
each Mortgaged Property is in material compliance
with all applicable federal, state and local laws
pertaining to the environmental hazards other than as
disclosed in such environmental reports, and to
Seller's actual knowledge, Seller has received no
notice of violation of such laws issued by any
governmental agency or authority, which would cause
the Mortgaged Property not to be in compliance with
all federal, state and local laws pertaining to the
environmental hazards. Each Borrower represents and
warrants in the related
C-7
<PAGE> 624
Mortgage Loan documents that except as set forth in
certain environmental reports and to its knowledge
there is not located on the related Mortgaged
Property and the Borrower will not use, cause or
permit to exist on the related Mortgaged Property any
hazardous materials in any manner which violates
federal, state or local laws, ordinances, regulations
or orders relating to the environment. 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, penalties,
fines, expenses and claims of any kind whatsoever
(including reasonable attorneys' fees and costs)
paid, incurred or suffered by or asserted against,
any such party resulting from any violation by
Borrower of applicable environmental law relating to
the related Mortgaged Property or any claims asserted
against such party due to the existence of hazardous
substances at, or the release or discharge of
hazardous substances from or onto the Mortgaged
Property.
(15) Except as indicated on the Mortgage Loan
Schedule, such Mortgage Loan is not
cross-collateralized with other Mortgage Loans in the
Mortgage Pool. Such Mortgage Loan is not
cross-collateralized with a mortgage loan outside the
Mortgage Pool. Each Mortgage securing a
Cross-Collateralized Mortgage Loan or other Mortgage
Loan secured by more than one related Mortgaged
Property secures an amount no less than the aggregate
original loan balance of the related Mortgage Loan
combined with that of any other Mortgage Loans in the
related Cross-Collateralized Group, if any; provided,
that in the case of each Mortgage on a related
Mortgaged Property located in Florida or New York,
the Mortgage secures an amount no less than 150% of
the allocated loan amount for such Mortgaged
Property.
(16) The terms of the Mortgage Note and Mortgage for
such Mortgage Loan have not been impaired, waived,
altered or modified in any material respect, except
those that occurred prior to the Cut-off Date by
written instrument which is specifically set forth in
the related Mortgage File and which is duly recorded
to the extent required to perfect, maintain, or
continue the validity and priority of the Mortgage
Loan Documents. No Mortgage has been satisfied,
canceled, rescinded or subordinated, no material
portion of the related Mortgaged Property has been
released, and no instrument has been executed that
would effect any such satisfaction, cancellation,
subordination, rescission or release.
(17) There are no delinquent insurance premiums (to
the best knowledge of Seller), or delinquent taxes,
water charges, sewer rents or other similar
outstanding charges affecting the related
C-8
<PAGE> 625
Mortgaged Property that are not otherwise covered by
an escrow of funds sufficient to pay such charges.
(18) The interest of the Borrower in the related
Mortgaged Property consists of a fee simple and/or in
the case of the Mortgaged Property identified on the
Mortgage Loan Schedule as Southcenter Retail Center,
leasehold estate or interest in real property and the
improvements thereon.
(19) Such Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
(20) The assignment of the related Mortgage to the
Purchaser has been duly authorized, executed and
delivered by Seller, is in a recordable form and
constitutes the legal, valid, binding and, subject to
the exceptions in paragraph 12 above, enforceable and
full assignment of such Mortgage from the relevant
assignor to the Purchaser, and the assignment of the
related Assignment of Leases, if any, or of any other
agreement executed in connection with such Mortgage
Loan to the Purchaser constitutes the legal, valid,
binding and, subject to the exceptions in paragraph
12 above, enforceable and full assignment thereof
from the relevant assignor to the Purchaser.
(21) All escrow deposits (including capital
improvements and environmental remediation reserves)
relating to such 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 escrows and deposits
are conveyed hereunder to the Purchaser. Any and all
requirements under each Mortgage Loan as to
completion of any material 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 the funds so escrowed
have not been released.
(22) As of the date of origination of such Mortgage
Loan and as of the Closing Date, the related
Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the
nature thereof which create a lien prior to that
created by the related Mortgage(s).
(23) No improvement that was included for the purpose
of determining the appraised value of the related
Mortgaged Property
C-9
<PAGE> 626
at the time of origination of such Mortgage Loan lies
outside the boundaries and building restriction lines
of such property to any material extent (except to
the extent that it may constitute a legal
non-conforming use or structure or title insurance
was provided with respect thereto); no improvements
on adjoining properties encroach upon such Mortgaged
Property (except to the extent not material or
covered by title insurance); and no improvement
located on or forming part of such Mortgaged Property
is in material violation of any applicable zoning
laws or ordinances and any non-material violation
does not materially and adversely affect the use,
operation or value of such Mortgaged Property
(provided, however, that, although it does not
constitute a violation of law, the improvements on
such Mortgaged Property may constitute a legal
non-conforming use or structure).
(24) To the extent required under applicable law as
of the date of origination and necessary for the
enforceability or collectability of the Mortgage
Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in
which the related Mortgaged Property is located at
all times when it originated and held the Mortgage
Loan.
(25) With respect to each Mortgage Loan: (a) since
the date of origination of the such Mortgage Loan,
there has been no declaration by the Seller of an
event of acceleration under the related Mortgage or
Mortgage Note; (b) there is no existing material
default or breach under the related Mortgage,
Mortgage Note or Assignment of Leases; (c) to
Seller's knowledge there has not been a material
default or breach under the related Mortgage,
Mortgage Note or Assignment of Leases since the
origination of the related Mortgage Loan; and (d)
Seller has not, without having reviewed any public
records, received notice of any event (other than
payments due but not yet 30 days' delinquent) that,
with the passage of time or with notice and the
expiration of any grace or cure period, would
constitute such a material default, breach or event
of acceleration; provided, however, that this
representation and warranty does not cover any
default, breach or event of acceleration that
specifically pertains to any matter otherwise covered
by any other representation and warranty made by
Seller in any other paragraph of this Exhibit C and
provided, further, that certain post-closing
conditions or requirements may not have yet been
completed.
(26) If such Mortgage Loan is secured in whole or in
part by the interest of a Borrower under a Ground
Lease and by the related fee interest, such fee
interest is encumbered by the related Mortgage, and
the related Mortgage does not by its terms provide
that it will
C-10
<PAGE> 627
be subordinated to the lien of any mortgage or any
other lien upon such fee interest.
(27) No Mortgage Loan contains any equity
participation by the lender, provide for any
contingent or additional interest in the form of
participation in the cash flow of the related
Mortgaged Property or, except for ARD Loans, provide
for the negative amortization of interest. Neither
Seller nor any affiliate thereof has any obligation
to make any capital contributions to the Borrower
under the Mortgage Loan. The Mortgage Loan was not
originated for the sole purpose of financing the
construction of incomplete improvements on the
related Mortgaged Property.
(28) No holder of such Mortgage Loan has, to Seller's
knowledge, advanced funds or induced, solicited or
knowingly received any advance of funds from a party
other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of
any amount required by the Mortgage Loan, except for
interest accruing from the date of origination of
such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the
date which preceded by thirty (30) days the first Due
Date under the related Mortgage Note.
(29) To Seller's knowledge, based on due diligence
customarily performed in the origination of
comparable mortgage loans, as of the date of
origination of such Mortgage Loan, (a)(i) the related
Borrower was in possession of all material licenses,
permits and authorizations required by applicable
laws for its ownership and occupancy of the related
Mortgaged Property as it was then operated (excepting
those which any tenant must possess for its occupancy
and operations) and (ii) with respect to each
Mortgaged Property improved by a hotel or health care
facility, the related Borrower was in possession of
all material licenses, permits and authorizations
required by applicable law for the ownership and
operation of the related Mortgaged Property as it was
then operated (excepting those which any tenant must
possess for its occupancy and operations), and (b)
all such licenses, permits and authorizations were
valid and in full force and effect. The Mortgage Loan
requires the related Borrower (if not an individual)
to be qualified to do business and for the Borrower
to cause the Mortgaged Property to be in material
compliance with all regulations, licenses, permits,
zoning, and building laws.
(30) The related Mortgage or Mortgage Note, together
with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set
forth in paragraph 12 above) such as to render the
rights and remedies of the holders
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thereof adequate for the practical realization
against the related Mortgaged Property of the
principal benefits of the security intended to be
provided thereby.
(31) Such 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 (but without regard to the rule in Treasury
Regulation Section 1.860G-2(f)(2)). Any prepayment
premium and yield maintenance charges applicable to
the Mortgage Loan constitute "customary prepayment
penalties" within the meaning of Treasury Regulation
Section 1.860G-1(b)(2).
(32) No fraud with respect to such Mortgage Loan has
taken place on the part of Seller or, to Seller's
knowledge, on the part of any originator, in
connection with the origination of such Mortgage
Loan.
(33) The terms of such Mortgage Loan provide or, at
lender's option, permit, and the terms of the Pooling
and Servicing Agreement and any Sub-Servicing
Agreement to which such Mortgage Loan is subject
provide for purposes of calculating distributions on
the Certificates and additional compensation payable
to the Master Servicer, the Special Servicer and any
related Sub-Servicer, that payments on and proceeds
of such Mortgage Loan will be applied to principal
and interest at the related Mortgage Rate (excluding,
in the case of an ARD Loan after its Anticipated
Repayment Date, Additional Interest) due and owing at
the time such payments or proceeds are received,
prior to being applied to any Default Charges,
assumption fees and modification fees then due and
owing.
(34) The origination, servicing and collection
practices used with respect to such Mortgage Loan
have been in all material respects legal and have met
generally accepted servicing standards utilized by
institutional and commercial mortgage lenders and
loan servicers the main business of which is the
origination and servicing of similar commercial and
multifamily mortgage loans.
(35) There exists as part of the related Mortgage
File an Assignment of Leases (either as a separate
instrument or incorporated into the related
Mortgage); and such Assignment of Leases creates in
favor of the holder, a valid, perfected and (subject
to the exceptions set forth in paragraph 12 above)
enforceable lien of the same priority as the related
Mortgage, in the property and rights described
therein; provided that the enforceability of such
lien is subject to applicable bankruptcy,
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<PAGE> 629
insolvency, reorganization, moratorium, and other
laws affecting the enforcement of creditors' rights
generally, and by general principles of equity.
Seller has the full right to assign to the Purchaser
such Assignment of Leases and the lien created
thereby as described in the immediately preceding
sentence. No Person other than the Borrower owns any
interest in any payments due under the related
leases. The related Mortgage or such Assignment of
Leases provides for the appointment of a receiver for
rents or allows the lender to enter into possession
to collect rent or provides for rents to be paid
directly to the mortgagee in the event of a default.
(36) At the time of origination of the related
Mortgage Loan the Mortgaged Property was not
encumbered by, and without having reviewed any public
records since origination, Seller has no actual
knowledge (as opposed to constructive knowledge) that
the related Mortgaged Property is presently
encumbered by, any debt (excluding preferred equity
and mezzanine debt) other than the related Mortgage
Loan or another Mortgage Loan.
(37) Subject to a one-time (or, in the case of
certain Mortgage Loans, a multiple-time) transfer
right allowed to a transferee reasonably acceptable
to the lender in accordance with certain provisions
set forth in the related Mortgage, and excluding
transfers for estate planning purposes, transfers to
affiliates or family members, transfers for or other
purposes where no change of control occurs or such
transfers which have been pre-approved to transferees
which otherwise have met the Mortgage Loan Seller's
underwriting criteria, the related Mortgage contains
a "due-on-sale" clause which provides for the
acceleration of, or permits the lender to accelerate,
the payment of the unpaid principal balance of such
Mortgage Loan if, without the prior written consent
of the holder of the Mortgage and/or the satisfaction
of specified criteria set forth in the related
Mortgage Loan documents, either (a) the related
Borrower transfers ownership of the related Mortgaged
Property subject to such Mortgage or (b) any
controlling interest in the related Borrower is
directly or indirectly transferred or sold. The
related Mortgage requires the related Borrower to pay
all of the lender's reasonable fees and expenses
relating to obtaining consent and approval, including
the cost of any REMIC opinion required under the
related Mortgage Loan documents.
(38) Seller has not waived any claims against the
related Borrower or any related guarantor under any
non-recourse exceptions contained in the related
Mortgage Note.
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(39) The related Mortgage and/or Mortgage Note
provides either (a) that the related Borrower and
another individual shall be fully and personally
liable for all liabilities, costs, losses, damages,
expenses or claims suffered or incurred by the lender
or lender's successors or assigns by reason of or in
connection with and to the extent of, or (b) that the
related Mortgage Loan shall become a recourse
obligation of the Borrower and an individual
guarantor in the event of, any fraud or intentional
material misrepresentation by the related Borrower.
Further, the related Mortgage and/or Mortgage Note
provides that the related Borrower and another
individual shall be fully and personally liable for
all liabilities, costs, losses, damages, expenses or
claims suffered or incurred by the lender or lender's
successors or assigns by reason of or in connection
with and to the extent of the related Borrower's
misapplication or misappropriation of rents (after
the occurrence of a default), insurance proceeds or
condemnation awards, acts of waste (or failure to
maintain and repair the related Mortgage Property in
accordance with the Mortgage Loan documents to the
extent not covered by insurance proceeds made
available to the lender) and breaches of
environmental covenants.
(40) If such Mortgage Loan is an ARD Loan, it
commenced amortizing on its initial scheduled Due
Date, and it provides that: (i) its Mortgage Rate
will increase by at least two (2) percentage points
in connection with the passage of its Anticipated
Repayment Date; (ii) its Anticipated Repayment Date
is not less than seven (7) years following the
origination of such Mortgage Loan; (iii) no later
than the related Anticipated Repayment Date, the
related Borrower is required (if it has not
previously done so) to enter into a "lockbox
agreement" whereby all revenue from the related
Mortgaged Property shall be deposited directly into a
designated account controlled by the Master Servicer;
(iv) any cash flow from the related Mortgaged
Property that is applied to amortize such Mortgage
Loan following its Anticipated Repayment Date shall,
to the extent such net cash flow is in excess of the
Scheduled P&I Payment payable therefrom, be net of
budgeted and discretionary (servicer approved)
capital expenditures; and (v) if the property manager
for the related Mortgaged Property can be removed by
or at the direction of the lender on the basis of a
debt service coverage test, the subject debt service
coverage ratio shall be calculated without taking
account of any increase in the related Mortgage Rate
on such Mortgage Loan's Anticipated Repayment Date.
(41) At origination of such Mortgage Loan, neither
the related Borrower nor any related guarantor was,
to Seller's knowledge (based on customary and usual
due diligence conducted by prudent institutional
commercial mortgage lenders), a debtor in any
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<PAGE> 631
pending state or federal bankruptcy or insolvency
proceeding. Furthermore, at the Closing Date, without
having reviewed any public records, Seller has no
knowledge that the related Borrower was a debtor in
any pending state or federal bankruptcy or insolvency
proceeding.
(42) The servicing and collection practices used with
respect to such Mortgage Loan have in all material
respects been legal and met customary standards used
by institutional lenders with respect to comparable
mortgage loans.
(43) (a) Without having reviewed any public records
since origination, Seller has no knowledge of any
pending litigation or other pending legal proceedings
involving the related Borrower or the related
Mortgaged Property that can reasonably be expected to
materially interfere with the security intended to be
provided by the related Mortgage, the current use of
the related Mortgaged Property, or the current
ability of the Mortgaged Property to generate net
cash flow sufficient to service the Mortgage Loan.
(b) Without having reviewed any public records, Seller has no
knowledge of any pending governmental investigations involving the related
Borrower or the related Mortgaged Property that can reasonably be expected to
materially interfere with the security intended to be provided by the related
Mortgage, the current use of the related Mortgaged Property, or the current
ability of the Mortgaged Property to generate net cash flow sufficient to
service the Mortgage Loan.
(44) If such Mortgage Loan had a Cut-off Date Balance
greater than $5,000,000, the related Borrower has
provided in its organizational documents and/or
covenanted in the Mortgage Loan documents that it is
a "single purpose entity". For purposes of this
representation, "single purpose entity" shall mean an
entity, other than an individual, which is limited in
its purpose by its organization documents and/or by
the terms of the related Mortgage Loan documents to
owning and operating a single property or group of
properties, and which is not permitted by its
organization documents and/or by the related Mortgage
Loan documents to engage in any business unrelated to
such property and its financing, have any material
assets other than those related to its interest in
the related Mortgaged Property or its financing, or
have any indebtedness prohibited under the related
Mortgage Loan. Furthermore, if such Mortgage Loan had
a Cut-off Date Balance greater than $7,500,000, the
related Borrower has provided in its organizational
documents and/or covenanted in the Mortgage Loan
documents that it shall maintain its own books,
records and accounts, in each case which are separate
and apart from the books and records and accounts of
any other person,
C-15
<PAGE> 632
conduct its business in its own name, not guarantee
or assume the debts or obligations of any other
person, not commingle its assets or funds with those
of any other person, transact business with
affiliates on an arm's length basis and hold itself
out as being a legal entity, separate and apart from
any other person. To Seller's knowledge, at the time
of origination of such Mortgage Loan, the related
Borrower was in compliance with the aforementioned
provisions/covenants.
(45) Except in cases where the related Mortgage Note
or the related Mortgage provide for (a) a
substitution of governmental securities for such
Mortgaged Properties in a defeasance, (b) a release
of a portion of the related Mortgaged Property, which
portion was not considered material for purposes of
underwriting the Mortgage Loan, or (c) a release of a
portion of the related Mortgaged Property conditioned
upon the satisfaction of certain underwriting and
legal requirements, property performance requirements
and/or the payment of a release price or a partial
defeasance, neither the related Mortgage Note nor the
related Mortgage requires the lender to release all
or any material portion of the related Mortgaged
Property from the lien of the related Mortgage except
upon payment in full of all amounts due under the
related Mortgage Loan.
(46) Such Mortgage Loan does not permit the related
Mortgaged Property to be encumbered subsequent to the
date of origination of such Mortgage Loan by any lien
junior to or of equal priority with the lien of the
related Mortgage without the prior written consent of
the holder thereof. The Seller has not consented to
the encumbrance of the related Mortgage Property by
any lien junior to or of equal priority with the lien
of the related Mortgage.
(47) With respect to any Mortgage Loan that is a
Defeasance Loan, the related Mortgage Note or
Mortgage provides that the Defeasance Option is not
exercisable prior to a date that is at least two (2)
years following the Startup Day for REMIC I (or, if
such Mortgage Loan is an asset of a Loan REMIC, for
such Loan REMIC). In addition, each Mortgage loan
that is a Defeasance Loan permits defeasance (i) only
with substitute collateral constituting "government
securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note when due,
as certified by an independent certified public
accountant and (ii) to Seller's knowledge, only for
the purpose of facilitating the disposition of
mortgaged real property and not as part of an
arrangement to collateralize a REMIC offering with
obligations that are not real estate mortgages.
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<PAGE> 633
(48) If the Mortgage Loan permits defeasance, then
the related Mortgage or other related loan document
provides that the related Borrower shall (a) pay all
Rating Agency fees associated with defeasance (if
Rating Agency approval is a specific condition
precedent thereto) and all other reasonable expenses
associated with defeasance, including, but not
limited to, accountant's fees and opinions of
counsel, or (b) provide all opinions required under
the related loan documents, including, if applicable,
a REMIC opinion, and any a applicable rating agency
letters confirming no downgrade or qualification of
ratings on any classes in the transaction and that
the related Mortgage is fully enforceable in
accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium,
and other laws affecting the enforcement of
creditors' rights generally, and by general
principles of equity).
(49) If the Mortgage in respect of any Mortgage Loan
is a deed of trust, (a) a trustee, duly qualified
under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (b)
except in connection with a trustee's sale after
default by the related Borrower, no fees or expenses
are payable to such trustee by Seller or any
subsequent mortgagee.
(50) The related Mortgage Note is not secured by any
collateral that is not included in the Trust Fund.
(51) If such Mortgage Loan is secured by the interest
of the related Borrower as a lessee under a Ground
Lease covering all or any material portion of the
related Mortgaged Property, but not by the related
fee interest in such Mortgaged Property or portion
thereof:
(a) Such Ground Lease was in full force and effect and, to
Seller's knowledge, no default existed under such Ground Lease
nor did any estoppel from the related ground lessor indicate a
material incipient default nor is there any existing condition
which, but for the passage of time or giving of notice or both
would result in a default; Seller has provided the ground
lessor with notice of its lien in accordance with the terms of
such Ground Lease; and, as of the Closing Date, Seller has not
received written notice of any, and to Seller's knowledge
there is no, default under such Ground Lease;
(b) Either (1) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the interest of
the holder of the Mortgage Loan or (2) the related ground
lessor has granted the holder of the Mortgage Loan the right
to written notice of and the right to cure any default or
breach by the ground lessee, including, when necessary,
sufficient time to gain possession of the interest of the
lessee under the Ground Lease through legal
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proceedings or to take other action so long as the Seller or
its assignee is proceeding diligently;
(c) Upon the foreclosure of such Mortgage Loan or acceptance
of a deed in lieu thereof, the related Ground Lease is
assignable to the lender under such Mortgage Loan and its
assigns without the consent of the ground lessor thereunder;
(d) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease, or an estoppel letter or
other agreement received by the originator of such Mortgage
Loan from the ground lessor, permits the interest of the
lessee thereunder to be encumbered by the related Mortgage;
such Ground Lease does not restrict the use of the related
Mortgaged Property by such lessee, its successors or assigns,
in a manner that would materially, adversely affect the
security provided by the related Mortgage; and there has been
no material change in the terms of such Ground Lease since its
recordation, with the exception of written instruments which
are a part of the related Mortgage File;
(e) 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;
(f) Such Ground Lease, or an estoppel letter or other
agreement received by the originator of such Mortgage Loan
from the ground lessor, provides that no notice of termination
given under such Ground Lease is effective against the holder
unless a copy has been delivered to such lender in the manner
described in such Ground Lease;
(g) Such Ground Lease, or an estoppel letter or other
agreement received by the originator of such Mortgage Loan
from the ground lessor, requires the ground lessor to enter
into a new lease with the holder of such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(h) Such Ground Lease has an original term (or an original
term plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the holder of such Mortgage Loan if it becomes the owner of
such leasehold interest) that extends not less than the later
to occur of (i) ten (10) years beyond the stated maturity of
or Anticipated Repayment Date for such Mortgage Loan or (ii)
ten (10) years beyond the amortization period of such Mortgage
Loan;
(i) Under the terms of such Ground Lease, or an estoppel
letter or other agreement received by the originator of the
Mortgage Loan from the ground lessor, and the related
Mortgage, taken together, any related insurance proceeds or
condemnation proceeds (other than in respect of a total or
C-18
<PAGE> 635
substantially total loss or taking) will be applied either (1)
to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by
it having the right to hold and disburse such proceeds as the
repair or restoration progresses or (2) to the payment of the
outstanding principal balance of such Mortgage Loan together
with any accrued interest thereon. Under the terms of the
Ground Lease and the related Mortgage, any insurance proceeds
or condemnation awards in respect of a total or substantially
total loss or taking will be applied first to the payment of
the outstanding principal and interest on the Mortgage Loan
(except as otherwise provided by applicable law);
(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable
by a prudent commercial mortgage lender; and
(k) Such Ground Lease may not be amended, modified or, except
in the case of a default, canceled or terminated without the
prior written consent of the holder of the Mortgage Loan, and
any such action without such consent is not binding on such
holder, provided that such holder has provided the ground
lessor with notice of its lien in accordance with the terms of
such Ground Lease.
(52) Neither the related Mortgage Note nor the
related Mortgage contain provisions limiting the
right or ability of Seller to assign, transfer and
convey such documents.
(53) Each Mortgaged Property constitutes one or more
complete separate tax lots.
(54) Seller has inspected or caused to be inspected
each related Mortgaged Property within the twelve
(12) months preceding the Cut-off Date.
(55) The related Mortgage requires the related
Borrower to provide the holder of such Mortgage with
quarterly and annual operating statements, rent rolls
and related information and either quarterly or
annual financial statements.
(56) The related Mortgage or other related loan
document provides that the Borrower shall pay any
fees payable to a Rating Agency in connection with
the approval of an assumption of the related Mortgage
Loan (if such Mortgage or other related loan document
provides that Rating Agency approval is a specific
condition precedent thereto).
(57) The related Mortgage or Mortgage Note provides a
grace period for delinquent Monthly Payments no
longer than ten (10) days from the applicable Due
Date.
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(58) The Mortgage File contains 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 satisfies the
requirements of the "Uniform Standards of
Professional Appraisal Practice" as adopted by the
Appraisal Standards Board of the Appraisal
Foundation, all as in effect on the date the Mortgage
Loan was originated.
(59) As of the Closing Date, no group of the Seller's
Mortgage Loans representing more than 5% of the
Initial Pool Balance have the same Borrower or, to
the Seller's knowledge, have Borrowers that are
affiliates of each other.
(60) To Seller's knowledge based on its inquiry
and/or engineering reports and/or appraisals obtained
in connection with the origination of each Mortgage
Loan, each related Mortgaged Property is served by
public utilities, water and sewer (or septic
facilities).
SCHEDULE C-1
EXCEPTIONS TO REPRESENTATIONS FOR ARTESIA LOANS
Representation #13. Loan #010-00000463 (National Die and Button Mold Company).
Insurance Rating is A.M. Best A-:IX.
Representation #13. Loan #010-00000312 (I Canyon Road Industrial Condos).
Insurance Rating is A.M. Best A-:XIV.
Representation #13. Loan #010-00000280 (Miramar Conference Center). Insurance
Rating is A.M. Best A:VII.
Representation #13 Loan #010-00000520 (The Village Apartments). Insurance Rating
is A.M. Best A:V with a reinsurance rating with an A:XV carrier.
Representation #13. With respect to Loan #010-00000520 (The Village Apartments)
there is co-insurance on the Mortgaged Property.
Representation #13. For the following loans, the PML exceeds 20% of the amount
of the replacement costs of the improvements and earthquake insurance was not
obtained:
Loan #010-00000188 (Park Plaza)
Loan #010-00000257 (Kiely Plaza Shopping Center)
Loan #010-00000275 (PBR III)
Loan #010-00000308 (Blue Devils Building)
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<PAGE> 637
Representation #13. For the following loans, the Mortgaged Property is located
in seismic zone 3, but an architectural or engineering consultant has not
determined the PML for the Mortgaged Property in the event of an earthquake:
Loan #010-00000450 (Kalevala Village Apartments)
Loan #020-00000037 (Southcenter Retail Center)
Loan #020-00000054 (Schuck's Retail Center)
Loan #020-00000022 (Belmond Center)
Loan #020-00000034 (PGE Buildings)
Loan #020-00000051 (AT&T Building)
Loan #020-00000036 (Philomath Self Storage)
Representation #13. Loan #s 010-00000560 and 010-00000562 (Niagra Kmart and
Lexington Kmart). For both of these loans, the insurance coverage is
self-insured by Kmart.
Representation #14. Loan #010-00000560 (Niagra Kmart). A Phase II environmental
site assessment was performed on March 6, 2000.
Representation #14. For the following loans, a "Phase I" environmental site
assessment (or an update of a previously conducted assessment) has not been
performed within the 24-month period prior to the Closing Date:
Loan #010-00000188 (Park Plaza). Phase I performed 5/22/98.
Loan #010-00000257 (Kiely Plaza Shopping Center). Phase I
performed 5/19/98.
Loan #010-00000258 (Williams Road Office Building). Limited
Phase I performed 4/27/98.
Loan #010-00000266 (Knoxville Square). Phase I performed
5/26/98.
Loan #010-00000280 (Miramar Commerce Center). Phase I
performed 5/16/98.
Loan #010-00000281 (Greenway Village Shopping Center). Phase I
performed 4/17/98.
Loan #010-00000349 (Larkfield Road Office Building). Phase I
performed 6/17/98.
Loan #010-00000370 (88 Sunnyside Building). Phase I performed
6/30/98.
Loan #010-00000371 (Metropolitan Square Shopping). Phase I
performed 7/22/98.
Loan #010-00000378 (Bloomfield Center). Phase I performed
8/20/98.
Loan #010-00000385 (The Certex Building). Phase I performed
8/24/98.
Loan #010-00000386 (Hafner Court Apartments). Phase I
performed 8/24/98.
Loan #020-00000034 (PGE Buildings). Phase I performed 6/26/98.
Loan #020-00000022 (Belmond Center). Phase I performed
4/27/98.
Loan #020-00000037 (Southcenter Strip Retail Center). Phase I
performed 8/28/98
Loan #020-00000043 (Kennewick Square). Phase I performed
8/25/98.
Representation #16. Loan #010-00000572 (Senter Road). A loan assumption approved
prior to the loan closing was recorded on approximately August 9, 2000.
Representation #17. Loan #010-00000463 (National Die and Button). According to
the Tax Collector of the Borough of Moonachie, the Borrower is in default of
water and sewer bills. The
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<PAGE> 638
Borrower was instructed to pay this outstanding bill and forward proof of
payment on August 16, 2000.
Representation #29. For the following loans, there is no express requirement
that the Borrower be qualified to do business. However, one of the loan
documents in makes a representation as of the Closing Date that the Borrower is
so qualified and the Mortgage provides for survival and continuation of
representations and warranties:
Loan #010-00000574 (Scottsdale Gateway II)
Loan #010-00000572 (Senter Road Industrial Property)
Loan #010-00000440 (Quad 95)
Loan #010-00000537 (Pederson-Krag Center Building)
Loan #010-00000520 (The Village Apartments)
Loan #010-00000498 (Fair Oaks Office/Retail Building)
Loan #010-00000490 (Carroll Road Warehouse)
Loan #010-00000281 (Greenway Village Shopping Center)
Loan #010-00000386 (Hafner Court Apartments)
Loan #010-00000543 (Loma Vista Center)
Loan #010-00000401 (Sandalwood Apartments)
Loan #010-00000333 (3975 Landmark Street)
Loan #010-00000452 (Northwest Shopping Center)
Loan #010-00000311 (Party City)
Loan #010-00000370 (88 Sunnyside Building)
Loan #010-00000378 (Bloomfield Center)
Loan #010-00000280 (Miramar Commerce Center)
Loan #010-00000462 (South Bay Industrial)
Loan #010-00000446 (Riverwood Apartments)
Loan #010-00000429 (Myrex Industries)
Loan #010-00000275 (PBR III)
Loan #010-00000312 (I Canyon Road Industrial Condos)
Loan #010-00000484 (Walnut Creek Shopping Center)
Loan #010-00000528 (Kings Kourt Apartments)
Loan #010-00000398 (Aztec Building)
Loan #010-00000267 (Wheeling Service Center)
Loan #010-00000349 (Larkfield Road Office Building)
Loan #010-00000385 (The Certex Building)
Loan #010-00000463 (National Die & Button Mould Co.)
Loan #010-00000331 (Runnin' Rebel Plaza)
Loan #010-00000371 (Metropolitan Square Shopping Center)
Loan #010-00000461 (Pheasant Run Shopping Center)
Loan #010-00000473 (Vic Huber Photography Building)
Loan #010-00000434 (Hollywood Video Westland Michigan)
Representation #29. For the following loans, there is no express requirement
that the Borrower be qualified to do business:
Loan #010-00000257 (Kiely Plaza Shopping Center)
Loan #010-00000450 (Kalevala Village Apartments)
Loan #020-00000037 (Southcenter Strip Retail Center)
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<PAGE> 639
Loan #010-00000188 (The Parkside Plaza Building)
Loan #010-00000464 (Southview Apartments)
Loan #020-00000054 (Schuck's Retail Center)
Loan #010-00000308 (Blue Devils Center)
Loan #020-00000043 (Kennewick Square)
Loan #010-00000550 (Northwood Estates)
Loan #020-00000022 (Belmond Center)
Loan #010-00000266 (Knoxville Square)
Loan #010-00000350 (Freeway Industries Center)
Loan #020-00000034 (PGE Buildings)
Loan #020-00000051 (AT&T Building)
Loan #010-00000465 (Quail Hollow Mini Storage)
Loan #010-00000279 (Stone Mountain Carpet Mill Outlet)
Loan #020-00000036 (Philomath Self-Storage)
Loan #010-00000258 (Williams Road Office Building)
Loan #010-00000439 (Lynnwood Business Center)
Representation #39. Loan #010-00000311 (Party City). There is not an individual
serving as guarantor or indemnitor.
Representation #39. Loan #00000378 (Bloomfield Center). The guarantors have not
made any nonrecourse guaranty or carveout guaranty; rather, they have made a
general guaranty for fifty percent (50%) of the guaranteed obligations.
Representation #39. Loan #010-00000333 (3975 Landmark Street). The original
guarantor passed away and has not been replaced.
Representation #39. Loan #010-00000484 (Walnut Creek Shopping Center). The
non-recourse provision does not carve out acts of waste by the Borrower.
Representation #39. Loan #010-00000333 (Landmark Street). The original
guarantor passed away and there has not been a substitute. No data on status of
estate of deceased guarantor.
Representation #41. Loan #010-00000370 (88 Sunnyside Building). The Borrower
filed Chapter 11 in February, 1992. The petition was dismissed in 1993 upon the
settlement of claim which provided for repayment of principal indebtedness in
full. An opinion of counsel was obtained that Borrower has paid all amounts as
agreed pursuant to the settlement.
Representation #44. Loan #010-00000574 (Scottsdale Gateway II). The Borrower is
not a single purpose entity.
Representation #51(B). Loan #020-00000037 (Southcenter Strip Retail Center).
Lender is given concurrent notice (with Tenant) of a default, and has the Tenant
cure period of 10 days plus an additional 10 days to cure the failure to pay
rent, the Tenant cure period of 30 days plus 10 days to cure or commence and
diligently pursue the cure (if not curable within 30 days) other breaches and
there is no cure period for bankruptcy, appointment of a receiver or a default
under Tenant's mortgage. However, if the Lease is terminated for any reason, the
Lender has the right to require
23
<PAGE> 640
the Landlord to enter into a new lease under substantially the same terms and
conditions as would have been remaining in the Lease.
Representation #51(C). Loan #020-00000037 (Southcenter Strip Retail Center).
Lender's right to assign the Lease post-foreclosure is conditioned. The Lender
must assign to an assignee with financial capacity and relevant experience. Any
assignment after the first assignment requires the consent of the Landlord.
However, the Tenant may sublet without Landlord's prior approval, and
furthermore, the Landlord's consent to an assignment shall not be unreasonably
withheld and shall be given if the assignee has the financial capability to
perform under the terms of the Lease.
Representation #51(I). Loan #020-00000037 (Southcenter Strip Retail Center).
After a total loss, proceeds are first applied to outstanding principal and
interest under the Loan except in cases where a different allocation would not
be viewed as commercially unreasonable by any institutional investor taking into
account the relative duration of the Lease and the Deed of Trust and the ratio
of the market value of the property to the outstanding principal balance under
the Loan.
Representation #55. Loan #010-00000479 (Computer Science Corp Building). The
Mortgage does not require quarterly operating statements, just quarterly rent
rolls and annual operating statements. Note, however, that this is a single
tenant loan, and quarterly balance sheet and profit and loss statements are
required.
Representation #55. For 48 of the Artesia Loans only annual rent rolls and
operating statements and related information. Quarterly operating statements are
not required.
Representation #55. Loan #010-00000490 (Carroll Road Warehouse). The related
Mortgage requires monthly operating statements for the first twelve months of
the Loan but requires no annual operating statements. Note, however, that
quarterly and annual rent rolls and annual balance sheet and profit and loss
statements are required.
Representation #55. Loan #010-00000504 (Banneker Building). The related Mortgage
requires only annual rent rolls, quarterly operating statements only for the
first twelve months of the Loan and annual operating statements thereafter.
Representation #55. Loan #010-00000446 (Riverwood Apartments). The related
Mortgage does not require annual operating statements, only quarterly operating
statements.
Representation #57. Loan #010-00000535 (Dover Crossing Kroger Center). The
grace period for delinquent monthly payments is 15 days, which is required in
the state in which the Mortgaged Property is located.
Representation #7 & #25. Loans #010-00000572 (Senter Road), 010-00000504
(Banneker Building) and 010-00000463 (National Die & Button). With respect to
each of the above, the date(s) has/have passed under the related Mortgage Loan
documents for which items of work or other conditions to the release of reserved
funds was/were to have been completed and/or satisfied, and while the related
escrowed funds have not been disbursed, there is thus a non-compliance with the
requirements of the Mortgage Loan documents, which would perhaps not prevent the
release of funds upon satisfaction of the relevant requirements. For Senter
Road, the reserved funds related to
24
<PAGE> 641
the tenanting of the new building and receipt of tenant estoppels. For Banneker
Building, the funds relate to lease renewals. The property is 100% occupied, but
additional documentation must be provided before the funds are released. For
National Die & Button, approximately 1/3 of the funds have already been released
for completed repairs. The remaining funds are subject to a third party report
to determine the appropriate remedy.
25
<PAGE> 642
EXHIBIT D-1
FORM OF CERTIFICATE OF
A SECRETARY OR ASSISTANT SECRETARY
OF ARTESIA MORTGAGE CAPITAL CORPORATION
Certificate of Secretary of Artesia Mortgage Capital Corporation
I, __________________, hereby certify that I am a duly elected
and acting Secretary of Artesia Mortgage Capital Corporation (the "Company"),
and certify further as follows:
a) The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware.
b) Attached hereto as Exhibit A is a true, correct and
complete copy of the certificate of incorporation and by laws of the Company, as
in full force and effect on the date hereof.
c) Attached hereto as Exhibit B is a certificate of the
Secretary of State of the State of Delaware, issued within ten days of the date
hereof with respect to the good standing of the Company.
d) Since the date of the certificate referred to in clause 3
above, the Company has not received any notification from the Secretary of the
State of Delaware, or from any other source, that the Company is not in good
standing in Delaware.
e) 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 August 15, 2000 (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. There are no
resolutions of the board of directors of the Company that would prevent the sale
of the Mortgage Loans by the Company to SBMS VII or that are otherwise contrary
to the resolutions attached hereto as Exhibit C.
f) The Mortgage Loans do not constitute all or substantially
all of the assets of the Company.
g) To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Company are pending or contemplated.
h) 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 August 15, 2000 (the "Indemnification
Agreement"), among the Company, SBMS VII,
<PAGE> 643
Salomon Smith Barney Inc., PaineWebber Incorporated, Chase Securities
Inc. and Artesia Banking Corporation, and (c) any other document or
certificate delivered on or before the date hereof in connection with
the transactions contemplated by the foregoing documents, was, at the
respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer
or representative, and the signature of such persons appearing on such
documents are their genuine signatures.
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
August __, 2000.
By: __________________________
Name:
Title: [Assistant] Secretary
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
August __, 2000.
By: __________________________
Name:
Title:
27
<PAGE> 644
EXHIBIT D-2
FORM OF CERTIFICATE OF
ARTESIA MORTGAGE CAPITAL CORPORATION
Certificate of Artesia Mortgage Capital Corporation
In connection with the execution and delivery by Artesia
Mortgage Capital Corporation (the "Company") of, and the consummation of the
transactions contemplated by, that certain Mortgage Loan Purchase Agreement
dated as of August 15, 2000 (the "Mortgage Loan Purchase Agreement"), between
Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII") and the Company, the
Company hereby certifies that (i) its representations and warranties set forth
in the Mortgage Loan Purchase Agreement and in the Indemnification Agreement
dated as of August 15, 2000, among the Company, SBMS VII, Salomon Smith Barney
Inc., PaineWebber Incorporated, Chase Securities Inc. and Artesia Banking
Corporation (the "Indemnification Agreement"; and, collectively with the
Mortgage Loan Purchase Agreement, the "Agreements"), are true and correct in all
material respects at and as of the date hereof (or, in the case of the
representations an 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)
it has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Mortgage Loan Purchase
Agreement to be performed or satisfied at or prior to the date hereof.
Capitalized terms used but not otherwise defined herein have the respective
meanings assigned to them in the Mortgage Loan Purchase Agreement and, if not
defined therein, then in the Indemnification Agreement.
Certified this ___ day of August, 2000.
ARTESIA MORTGAGE CAPITAL CORPORATION
By: __________________________
Name:
Title:
<PAGE> 645
EXHIBIT D-3
FORM OF OPINION OF SIDLEY & AUSTIN,
SPECIAL COUNSEL TO THE SELLER
Moody's Investors Service, Inc.
Salomon Brothers Mortgage 99 Church Street
Securities VII, Inc. New York, New York 10007
388 Greenwich Street
New York, New York 10013
Salomon Smith Barney Inc. Fitch, Inc.
388 Greenwich Street One State Street Plaza, 31st Floor
New York, New York 10013 New York, New York 10004
PaineWebber Incorporated Artesia Mortgage Capital Corporation
1285 Avenue of the Americas, 38th Floor 1180 Norwest Maple Street, Suite 202
New York, New York 10019 Issaquah, Washington 98027
Chase Securities Inc. Wells Fargo Bank Minnesota, N.A.
270 Park Avenue 45 Broadway, 12th Floor
New York, New York 10017 New York, New York 10006
Artesia Banking Corporation
c/o Artesia Mortgage Capital Corporation
1180 Northwest Maple Street, Suite 202
Issaquah, Washington 98027
August 24, 2000
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C2
Ladies and Gentlemen:
We have acted as special counsel to Artesia Mortgage Capital
Corporation ("AMCC") with respect to certain matters in connection with the
transactions contemplated by the following agreements (collectively, the
"Agreements"):
<PAGE> 646
(i) that certain Mortgage Loan Purchase Agreement, dated as of
August 15, 2000 (the "Mortgage Loan Purchase Agreement"), between AMCC,
as seller, and Salomon Brothers Mortgage Securities VII, Inc. ("SBMS
VII"), as purchaser; and
(ii) that certain Indemnification Agreement, dated as of
August 15, 2000 (the "Indemnification Agreement"), between AMCC, SBMS
VII, Salomon Smith Barney Inc., Paine Webber Incorporated, Chase
Securities Inc. and Artesia Banking Corporation.
This opinion letter is being provided to you pursuant to
Section 7(h) of the Mortgage Loan Purchase Agreement. Capitalized terms not
defined herein have the respective meanings set forth in the Mortgage Loan
Purchase Agreement and, to the extent not defined therein, in the
Indemnification Agreement.
For purposes of this opinion letter, we have reviewed the
Agreements. In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such other documents and records as
we have deemed relevant or necessary as the basis for the opinions contained in
this letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements as we have deemed
relevant or necessary as the basis for such opinions; and we have relied upon,
and assumed the accuracy of, such other documents and records, such certificates
and the statements made in response to such inquiries, with respect to the
factual matters upon which the opinions contained herein are based. 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 the authentic originals of all documents submitted to us as certified,
conformed or photostatic copies, (vi) except as addressed in Paragraph 1 below,
the due organization of all parties to each of the Agreements and the valid
existence of each such entity in good standing under the laws of its
jurisdiction of organization, (vii) except as addressed in Paragraph 1 and
Paragraph 4 below, the power and authority of the parties to each of the
Agreements to enter into, perform under and consummate the transactions
contemplated by such Agreement, without any resulting conflict with or violation
of the organizational documents of any such party or conflict with or violation
of any law, rule, regulation, order or decree applicable to any such party or
its assets, and without any resulting default under or breach of any other
agreement or instrument by which any such party is bound or which is applicable
to it or its assets, (viii) except as addressed in Paragraph 2 below, the due
authorization by all necessary action, and the due execution and delivery, of
each of the Agreements by the parties thereto, (ix) except as addressed in
Paragraph 3 below, the constitution of each of the Agreements as the legal,
valid and binding obligation of each party thereto, enforceable against such
party in accordance with its terms, and (x) the absence of any other agreement
that supplements or otherwise modifies the intentions and agreements of the
parties to the Agreements, as expressed therein.
Our opinions set forth below with respect to the
enforceability of any agreement or any particular right or obligation under any
agreement are subject to: (1) general principles of equity, including concepts
of materiality, reasonableness, good faith and fair dealing and the doctrine of
estoppel; (2) the possible unavailability of specific performance and injunctive
relief, regardless of whether considered in a proceeding in equity or at law;
(3) the effect of certain
2
<PAGE> 647
laws, rules, regulations and judicial and other decisions upon the
enforceability of (a) any provision that purports to waive (i) the application
of any federal, state or local statute, rule or regulation, (ii) the application
of any general principles of equity or (iii) the obligation of diligence, (b)
any provision that purports to grant any remedies that would not otherwise be
available at law, to restrict access to any particular legal or equitable
remedies, to make any rights or remedies cumulative and enforceable in addition
to any other right or remedy, to provide that the election of any particular
remedy does not preclude recourse to one or more other remedies, to provide that
the failure to exercise or the delay in exercising rights or remedies will not
operate as a waiver of such rights or remedies, to impose penalties or
forfeitures, or to provide for set-off in the absence of mutuality between the
parties, (c) any provision that purports to release, exculpate or exempt a party
from, or indemnify a party for, liability for any act or omission on its part
that constitutes negligence, recklessness or willful or unlawful conduct, (d)
any provision that purports to govern matters of civil procedure, including any
such provision that purports to establish evidentiary standards, to waive
objections to venue or forum, to confer subject matter jurisdiction on any court
that would not otherwise have such jurisdiction or to waive any right to a jury
trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
In rendering this opinion letter, we do not express any
opinion concerning the laws of any jurisdiction other than the laws of the State
of New York, the General Corporation Law of the State of Delaware and, where
expressly referred to below, the federal laws of the United States of America
(in each case 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 State or with respect to any matter not expressly
addressed below.
Based upon and subject to the foregoing, we are of the opinion
that:
1. AMCC is validly existing as a corporation in good standing
under the laws of the State of Delaware and has the requisite corporate power
and authority to enter into and perform its obligations under the Agreements.
2. Each Agreement has been duly authorized, executed and
delivered by AMCC.
3. The Mortgage Loan Purchase Agreement constitutes a valid,
legal and binding agreement of AMCC, enforceable against AMCC in accordance with
its terms.
3
<PAGE> 648
4. The execution, delivery and performance of the Agreements
by AMCC, will not conflict with or result in a breach or violation of (a) any
term or provision of the certificate of incorporation or by-laws of AMCC or (b)
any federal or State of New York statute or regulation generally applicable to
Delaware corporations in connection with transactions of the type contemplated
by the Agreements.
5. No consent, approval, authorization or order of any federal
or State of New York court, agency or other governmental body is required for
the consummation by AMCC of the transactions contemplated by the terms of the
Agreements.
The opinions expressed herein are being delivered to you as of
the date hereof, and we assume no obligation to advise you of any changes of law
or fact that may occur after the date hereof, notwithstanding that such changes
may affect the legal analysis or conclusions contained herein. This opinion
letter is solely for your benefit in connection with the Transactions and may
not be relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
4
<PAGE> 649
EXHIBIT M-4
FORM OF ORECM MORTGAGE LOAN PURCHASE
AGREEMENT
M-4
<PAGE> 650
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective as of August 15, 2000, between ORIX Real Estate Capital
Markets, LLC, a Delaware limited liability company ("ORECM"), 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
ORECM desires to sell, assign, transfer and otherwise convey
to SBMS VII, without recourse, and SBMS VII desires to purchase, subject to the
terms and conditions set forth herein, the multifamily and commercial mortgage
loans (the "Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended from
time to time pursuant to the terms hereof.
SBMS VII intends to create a trust (the "Trust"), the primary
assets of which will be the Mortgage Loans, certain other multifamily and
commercial mortgage loans (the "Other Loans"; and, together with the Mortgage
Loans, the "Securitized Loans"). Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund") will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Fitch, Inc. and Moody's Investors Service, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of August 1, 2000 (the "Pooling and Servicing Agreement"), among SBMS
VII, as depositor, ORIX Real Estate Capital Markets, LLC, as master servicer (in
such capacity, the "Master Servicer") and as special servicer (in such capacity,
the "Special Servicer"), and Wells 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 to the Trust
contemporaneously with its purchase of the Mortgage Loans hereunder.
SBMS VII will acquire some of the Other Loans from Salomon
Brothers Realty Corp. ("SBRC"), some of the Other Loans from Paine Webber Real
Estate Securities Inc. ("PWRES"), and the remaining Other Loans from Artesia
Mortgage Capital Corporation ("AMCC"; and, collectively with SBRC and PWRES, the
"Other Loan Sellers").
SBMS VII intends to sell the Registered Certificates to
Salomon Smith Barney Inc. ("Salomon"), PaineWebber Incorporated ("PaineWebber"),
Chase Securities Inc. ("Chase") and Artesia Banking Corp. ("Artesia BC"),
pursuant to an underwriting agreement, dated the
<PAGE> 651
date hereof (the "Underwriting Agreement"), among SBMS VII, Salomon,
PaineWebber, Chase and Artesia BC; and SBMS VII intends to sell the remaining
Certificates (the "Non-Registered Certificates") to Salomon and PaineWebber,
pursuant to a certificate purchase agreement, dated the date hereof (the
"Certificate Purchase Agreement"), among SBMS VII, Salomon and PaineWebber. The
Registered Certificates are more fully described in the prospectus dated August
4, 2000 (the "Basic Prospectus"); and the supplement to the Basic Prospectus
dated August 15, 2000 (the "Prospectus Supplement"; and, together with the Basic
Prospectus, the "Prospectus"), as each may be amended or supplemented any time
hereafter. Certain classes of the Non-Registered Certificates are more fully
described in the private placement memorandum dated August 15, 2000 (the
"Memorandum"), as it may be amended or supplemented at any time hereafter.
ORECM will indemnify SBMS VII, Salomon, PaineWebber, Chase,
Artesia BC, the Other Loan Sellers and certain related parties with respect to
the disclosure regarding the Mortgage Loans and ORECM contained in the
Prospectus, the Memorandum and certain other disclosure documents and offering
materials relating to the Certificates, pursuant to an indemnification
agreement, dated the date hereof (the "Indemnification Agreement"), among ORECM,
SBMS VII, Salomon, PaineWebber, Chase and Artesia BC.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise
convey (without recourse) to the Purchaser, and the Purchaser agrees to
purchase, subject to the terms and conditions set forth herein, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on August
24, 2000 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
scheduled due dates in August 2000 (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 $78,738,581, subject to a variance of plus or minus
5%. The purchase price for the Mortgage Loans shall be $80,386,254, together
with accrued interest on the Mortgage Loans at their respective Net Mortgage
Rates from and including the Cut-off Date 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).
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt
of the purchase price referred to in Section 1 hereof, the Seller does hereby
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse but subject to the terms of this Agreement, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including, without limitation, all of the
Seller's right, title and interest in and to the proceeds of any related title,
hazard or other insurance policies received by the Seller on or with respect to
the Mortgage Loans after the Cut-off Date and any
3
<PAGE> 652
Additional Collateral. The Seller shall, within 15 days of the discovery of an
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. The Mortgage Loan Schedule, as it may be amended, shall conform
to the requirements set forth in this Agreement.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its
expense, deliver or cause to be delivered to the Purchaser or its designee the
Mortgage File and any Additional Collateral (other than reserve funds and escrow
payments) with respect to each Mortgage Loan. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipient of the items
described in the preceding sentence shall be the Trustee.
If the Seller cannot deliver, or cause to be delivered, on or
before the Closing Date, as to any Mortgage Loan, the original Mortgage Note,
the Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser, Trustee, Master Servicer and
Special Servicer against any losses and expenses that may be incurred by reason
of such lost or destroyed Mortgage Note. If the Seller cannot deliver, or cause
to be delivered, on or before the Closing Date, as to any Mortgage Loan, any of
the documents and/or instruments required to be delivered as part of the
Mortgage File for such Mortgage Loan, with evidence of recording or filing
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, the delivery requirements of this Agreement shall be deemed to have been
satisfied as to such non-delivered document or instrument provided that a
photocopy of such non-delivered document or instrument (without evidence of
recording or filing, but certified by the Seller to be a true and complete copy
of the original thereof submitted for recording or filing) is delivered to the
Purchaser, the Trustee or a Custodian appointed thereby on or before the Closing
Date, and either the original of such non-delivered document or instrument, or a
photocopy thereof (certified by the appropriate county recorder's office, in the
case of a Mortgage, to be a true and complete copy of the original thereof
submitted for recording or filing), with evidence of recording or filing
thereon, is delivered to the Purchaser, the Trustee or such Custodian within 365
days of the Closing Date (or within such longer period after the Closing Date as
the Purchaser may consent to, which consent shall not be unreasonably withheld
so long as the Seller is in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy). If the Seller cannot
deliver, or cause to be delivered, on or before the Closing Date, as to any
Mortgage Loan, any of the documents and/or instruments referred to in the
definition of "Mortgage File", with evidence of recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost, the delivery requirements of this Agreement shall be
deemed to have been satisfied as to such non-delivered document or instrument
and such non-delivered document or instrument shall be deemed to have been
included in the
4
<PAGE> 653
Mortgage File, provided that a photocopy of such non-delivered document or
instrument (with evidence of recording thereon and certified, in the case of a
Mortgage, by the appropriate county recorder's office to be a true and complete
copy of the original thereof submitted for recording) is delivered to the
Purchaser, the Trustee or a Custodian appointed thereby on or before the Closing
Date together with an affidavit certifying that the original thereof has been
lost or destroyed. With respect to any Mortgage Loan, and notwithstanding the
foregoing, the Seller may deliver a UCC-3 on or before the Closing Date that
does not contain the filing information for the related UCC-1 and/or UCC-2 if
such UCC-1 and/or UCC-2 has not been returned to the Seller by the applicable
filing office, and the Seller may deliver assignments of documents and/or
instruments that do not contain the recording information for the related
documents and/or instruments, as applicable, if such documents and/or
instruments have not been returned to the Seller by the applicable recording
office. The Seller hereby authorizes the Purchaser, acting in its stead and on
its behalf, to fill in any missing filing or recording information or any
instrument or document required to be delivered pursuant to this subsection (b).
The delivery of an original pro forma or specimen title insurance policy or an
original marked, redated and recertified commitment to issue a policy of
lender's title insurance in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf no later than the 90th day following the
Closing Date (or such later date provided that the reason for the delay in
delivery of the title policy to the Trustee or Custodian is either (i) because
of a delay caused by the public recording or filing office where the Mortgage
has been delivered for recording or filing in returning a filed copy of the
Mortgage or (ii) due to the failure of the title company to forward such title
policy in a timely manner).
If the Seller cannot deliver, or cause to be delivered, on or
before the Closing Date, as to any Mortgage Loan, any of the documents and/or
instruments required to be delivered as part of the Mortgage File for such
Mortgage Loan, with evidence of recording or filing thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, and the Seller has
satisfied its delivery requirements as to such non-delivered document or
instrument by delivering a photocopy thereof (without evidence of recording or
filing, but certified by the Seller to be a true and complete copy of the
original thereof submitted for recording or filing), then:
(i) the Purchaser will, on or about the 115th day following
the Closing Date and approximately every 90 days thereafter until it or
its designee receives the original or a photocopy of the subject
document or instrument reflecting evidence of recordation or filing,
prepare and forward or cause to be prepared and forwarded to the Seller
a certification, to be signed and returned by the Seller, to the effect
that the Seller is in good faith attempting to obtain from the
appropriate public recording or filing office such original or
photocopy; and
(ii) the Seller agrees to execute and return to the Purchaser
or its designee each such certification within 15 days following its
receipt thereof.
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In addition, unless previously delivered by the Seller to the
Purchaser or its designee, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, the following items, on or before the Closing Date (or, if any of
the following items are not in the actual possession of the Seller as soon as
reasonably or practical, but in any event within 30 days, after Closing Date):
(i) copies of the Mortgage Files for the respective Mortgage Loans; (ii)
originals or copies of all financial statements, appraisals, environmental/
engineering reports, leases, rent rolls and tenant estoppels in the possession
or under the control of the Seller that relate to the Mortgage Loans and, to the
extent they are not required to be a part of a Mortgage File in accordance with
the definition thereof, originals or copies of all documents, certificates and
opinions in the possession or under the control of the Seller that were
delivered by or on behalf of the related Borrowers in connection with the
origination of the Mortgage Loans; and (iii) all unapplied reserve funds and
escrow payments in the possession or under the control of the Seller that relate
to the Mortgage Loans, other than those that are to be retained by a
sub-servicer or primary servicer that will continue to act on behalf of the
Purchaser. Unless the Purchaser notifies the Seller in writing to the contrary,
the designated recipient of the items described in clauses (i) - (iii) of the
preceding sentence shall be the Master Servicer.
The Seller shall also provide to the Purchaser or its designee
the initial data on the Mortgage Loans (as of the Closing Date or the most
recent earlier date for which such date is available) contemplated by the Loan
Set-up File, the Loan Periodic Update File, the Operating Statement Analysis
Report and the Property File.
(d) The Seller shall be responsible for: (i) all reasonable
costs and expenses associated with recording and/or filing any and all
assignments and other instruments of transfer to the Purchaser with respect to
the Mortgage Loans that are required to be recorded or filed, as the case may
be, under the Pooling and Servicing Agreement (provided that the Seller shall
not be responsible for actually recording or filing any such assignments or
other instruments of transfer); and (ii) all other reasonable out-of-pocket
costs and expenses incurred by the Trustee or a Custodian pursuant to Section
2.01(e) of the Pooling and Servicing Agreement. In connection with the
endorsement of any Mortgage Note and the delivery of any assignment from the
Seller hereby authorizes the Purchaser or its designee to complete each
endorsement or assignment in blank appearing thereon in favor of the Purchaser
in such manner as the Purchaser shall determine the exercise of its sole
discretion, provided that such endorsement will be without recourse,
representation or warranty of the Seller except as expressly set forth in this
Agreement. 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,
the Purchaser or an assignee thereof, which may include the Trustee or its
Custodian or its agent, shall notify the Seller of same. The Seller shall cure
such defect within 90 days following such notice or the Purchaser may prepare or
cause to be prepared a substitute therefor or cure such defect, as the case may
be, and thereafter the Purchaser shall upon receipt thereof cause the same to be
duly recorded or filed, as appropriate, all at the Seller's expense. The
Purchaser may (and, at the Purchaser's request, the Seller shall) execute any
replacement assignment or instrument of transfer, being filed in substitution
for any such lost or returned unrecorded or unfiled assignment or instrument of
transfer, at the Seller's expense, and the Seller shall assist the Purchaser or
its designee or agent in recording or filing such documents or instruments.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee or to file any UCC-3 in those
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<PAGE> 655
jurisdictions where, in the written opinion of the local counsel to Purchaser or
Trustee or such other evidence as is acceptable to the Trustee or its designee
such recordation and/or filing is not required to protect the Purchaser's
interest in the Mortgage Loans against sale, further assignment, satisfaction or
discharge by the Seller, and the reasonable costs of such opinion and/or other
evidence shall be borne by the Seller. The Seller shall provide the Purchaser or
its designee with a power of attorney to enable it or them to record any loan
documents that the Purchaser has been unable to record.
(e) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller shall report its transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of those assets
to the Purchaser in exchange for the consideration specified in Section 1
hereof. In connection with the foregoing, the Seller shall cause all of its
records to reflect such transfer as a sale (as opposed to a secured loan).
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
SECTION 3. Examination of Mortgage Loan Files and Due
Diligence Review.
The Seller shall reasonably cooperate with any examination of
the Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser. The
fact that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section 4
except as such remedies are otherwise limited by the terms of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes, as of the Closing Date, to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of
such other date specifically provided in the particular representation or
warranty) to and for the benefit of the Purchaser, each of the representations
and warranties set forth in Exhibit C.
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<PAGE> 656
(c) It is understood and agreed that the representations and
warranties set forth in this Section 4 shall survive delivery of the respective
Mortgage Files to the Purchaser or its designee and shall inure to the benefit
of the Purchaser for so long as any of the Mortgage Loans remains outstanding,
notwithstanding any restrictive or qualified endorsement or assignment.
SECTION 4A. Representations, Warranties and Covenants of Purchaser.
The Purchaser hereby represents and warrants, as of the Closing Date,
that:
(a) The Purchaser is a duly formed corporation, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(c) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(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
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by the Purchaser of the transactions contemplated herein, except for those
consents, approvals, authorizations and orders that previously have been
obtained and those filings and registrations that previously have been
completed.
SECTION 5. Notice of Breach; Cure, Repurchase and
Substitution.
(a) Within 90 days of the earlier of discovery or receipt of
notice by the Seller that there has been a Material Breach or a Material
Document Defect, the Seller shall, subject to subsection (b) below, (i) cure
such Material Breach or Material Document Defect, as the case may be, in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price provided for in the
Pooling and Servicing Agreement, to be deposited or delivered in accordance with
the directions of the Purchaser; provided that if (i) any such Material Breach
or Material Document Defect, as the case may be, does not relate to whether the
Defective Mortgage Loan was, as of the Closing Date, a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (a "Qualified Mortgage"),
(ii) such Material Breach or Material Document Defect, as the case may be, is
capable of being cured but not within such 90-day period, (iii) the Seller has
commenced and is diligently proceeding with the cure of such Material Breach or
Material Document Defect, as the case may be, within such 90-day period, and
(iv) the Seller shall have delivered to the Purchaser a certification executed
on behalf of the Seller by an officer thereof setting forth the reason that such
Material Breach or Material Document Defect, as the case may be, is not capable
of being cured within the initial 90-day period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be cured within an additional period not to exceed 90 more days,
then the Seller shall have up to an additional 90 days to complete such cure or,
failing such, to repurchase the Defective Mortgage Loan. 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 a Material Document Defect, but if the Seller
has actual knowledge of a Material Breach or Material Document Defect with
respect to a Mortgage Loan, it will notify the Purchaser.
If a Breach or Document Defect exists with respect to any
Mortgage Loan constituting part of a Cross-Collateralized Group, then the
determination as to whether such Breach or Document Defect, as the case may be,
is a Material Breach or a Material Document Defect, as applicable, shall be made
as follows:
(i) if such Mortgage Loan has become a Specially Serviced
Mortgage Loan by reason of such Breach or Document Defect, then based
solely upon such Mortgage Loan and the Mortgaged Property identified on
the Mortgage Loan Schedule as corresponding thereto, without regard to
the cross-collateralization; and
(ii) otherwise, treating such Cross-Collateralized Group as a
single Mortgage Loan secured by all of the related Mortgaged
Properties.
For purposes of applying the remedies contemplated by this Section 5(a) in
connection with any Material Breach or Material Document Defect in respect of
any Cross-Collateralized Group or
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any particular Cross-Collateralized Mortgage Loan that is part of such
Cross-Collateralized Group, such Cross-Collateralized Group shall be treated as
a single Mortgage Loan.
If any Defective Mortgage Loan is to be repurchased as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and shall forward
such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller
set forth in this Section 5(a) to cure a Material Breach or a Material Document
Defect or repurchase the related Defective Mortgage Loan(s), constitute the sole
remedies available to the Purchaser with respect to a Breach or Document Defect.
The Seller hereby acknowledges the assignment by the Purchaser
to the Trustee, as trustee under the Pooling and Servicing Agreement, for the
benefit of the Certificateholders, of the representations and warranties
contained herein and of the obligations of the Seller to cure Material
Breaches/Material Document Defects or repurchase Defective Mortgage Loans
pursuant to this Section 5(a). In addition, the Seller hereby acknowledges and
agrees that, pursuant to Section 2.03(d) of the Pooling and Servicing Agreement,
the Master Servicer and the Special Servicer (in the case of Specially Serviced
Mortgage Loans) have the right, for the benefit of the Certificateholders, to
enforce the obligations of the Seller under this Agreement. If the Seller is
required to repurchase a Defective Mortgage Loan, the reasonable out-of-pocket
costs and expenses, including reasonable attorneys' fees and disbursements,
incurred by the Purchaser, the Trustee, the Custodian, the Master Servicer and
the Special Servicer as a result of such repurchase shall be part of the
purchase price.
(b) It shall be a condition to any repurchase of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that (i) the Trustee as
assignee of the Purchaser shall have executed and delivered such instruments of
transfer or assignment then presented to it by the Seller, in each case without
recourse, as shall be necessary to vest in the Seller the legal and beneficial
ownership of such Defective Mortgage Loan (including any property acquired in
respect thereof or proceeds of any insurance policy with respect thereto), to
the extent that such ownership interest was transferred to the Purchaser
hereunder and (ii) the Purchaser or its assignee shall release or cause the
release to the Seller or its designee of the Mortgage File, any Additional
Collateral, all insurance policies and proceeds thereunder, the Servicing File
and any Escrow Payments and/or Reserve Funds held by or on behalf of the
Purchaser (or its assignee) with respect to such Mortgage Loan.
SECTION 6. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Sidley & Austin, 875 Third Avenue, New York, New
York 10022 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
made pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date or such other date as specified in
Exhibit C;
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<PAGE> 659
(b) 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;
(c) 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;
(d) All other terms and conditions of this Agreement required
to be complied with by the Seller and the Purchaser, including, without
limitation, in the case of the Purchaser, payment of the purchase price, on or
before the Closing Date shall have been complied with, and the Seller shall have
the ability to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees, costs and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement; and
(f) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the
Purchaser and the Seller;
(b) The Indemnification Agreement duly executed and delivered
by the Seller, the Purchaser and each of Salomon, PaineWebber, Chase and Artesia
BC;
(c) The Pooling and Servicing Agreement duly executed and
delivered by SBMS VII, the Master Servicer, the Special Servicer and the
Trustee;
(d) An Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and upon
which the Purchaser, Salomon, PaineWebber, Chase, Artesia BC, the Other Loan
Sellers 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
(g) below;
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(e) A certificate of good standing with respect to the Seller
issued by the Secretary of State of the State of Delaware dated not earlier than
10 days prior to the Closing Date;
(f) A certificate of the Seller substantially in the form of
Exhibit D-2 hereto, executed by an executive officer or authorized signatory of
the Seller and dated the Closing Date, and upon which the Interested Parties may
rely;
(g) Resolutions of the Seller authorizing the transactions
contemplated by this Agreement, which resolutions will be in full force and
effect, and will not have been rescinded, as of the Closing Date;
(h) A written opinion of Akin, Gump, Strauss, Hauer & Feld,
LLP as special counsel for the Seller, substantially in the form of Exhibit D-3
hereto (with any modifications required by any Rating Agency, and subject to
such reasonable assumptions, qualifications and limitations as may be requested
by counsel for the Seller and acceptable to counsel for the Purchaser), dated
the Closing Date and addressed to SBMS VII, each of the other parties to the
Pooling and Servicing Agreement, Salomon, PaineWebber, Chase, Artesia BC and
each Rating Agency; and such other written opinions as may be required by a
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);
(i) One or more accountants' comfort letters relating to the
information regarding the Mortgage Loans contained in the Prospectus and
Memorandum that is of a statistical nature; and
(j) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
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 May 30,
2000 (the "Term Sheet").
SECTION 9. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to the Purchaser at 388 Greenwich Street, New
York, New York 10013, attention: Angela Hutzel, facsimile no. 212-816-8306, 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 1717 Main Street, Suite 1400, Dallas, Texas 75201, attention: Edgar L.
Smith, II and Richard Curlin, facsimile no.: (214) 237-2035, or to such other
address or facsimile number as may hereafter be furnished to the Purchaser in
writing by the Seller.
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SECTION 10. Characterization.
The parties hereto agree that it is their express intent that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. The parties hereto further agree that it is not
their intention that such conveyance be deemed a pledge of the Mortgage Loans by
the Seller to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to continue to be property of the Seller, then: (a) this Agreement shall be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder(s) of those assets in accordance with the terms thereof (other
than scheduled payments of interest and principal due on or before the Cut-off
Date) and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property; (c) the
assignment by SBMS VII to the Trustee of its interests in the Mortgage Loans as
contemplated by Section 16 hereof shall be deemed to be an assignment of any
security interest created hereunder; (d) the possession by the Purchaser or any
successor thereto of the related Mortgage Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction; and
(e) notifications to, and acknowledgments, receipts or confirmations from,
persons or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without
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<PAGE> 662
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, SBMS VII is
expressly authorized to assign it rights and obligations under this Agreement,
in whole or in part, to the Trustee for the benefit of the registered holders
and beneficial owners of the Certificates. To the extent of any such assignment,
the Trustee (including acting through the Master Servicer and Special Servicer
pursuant to the terms of the Pooling and Servicing Agreement), for the benefit
of the registered holders and beneficial owners of the Certificates, shall be
the Purchaser hereunder. In connection with the transfer of any Mortgage Loan by
the Trust as contemplated by the terms of the Pooling and Servicing Agreement,
the Trustee, for the benefit of the registered holders and beneficial owners of
the Certificates, is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the transferee of such Mortgage
Loan. To the extent of any such assignment, such transferee shall be the
Purchaser hereunder (but solely with respect to such Mortgage Loan that was
transferred to it). Subject to the foregoing, this Agreement shall bind and
inure to the benefit of and be enforceable by the Seller and the Purchaser, and
their respective successors and permitted assigns.
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SECTION 17. Amendments.
(a) No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced.
(b) Notwithstanding any contrary provision of this Agreement
or the Pooling and Servicing Agreement, no amendment of the Pooling and
Servicing Agreement executed after the Closing Date that increases the
obligations of or otherwise adversely affects, the Seller, shall be effective
against the Seller.
SECTION 18. Entire Agreement.
Except as otherwise expressly contemplated hereby, this
Agreement constitutes the entire agreement and understanding of the parties with
respect to the matters addressed herein, and this Agreement supersedes any prior
agreements and/or understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
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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.
ORIX REAL ESTATE CAPITAL MARKETS, LLC
By: _____________________________
Name:
Title:
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
By: _____________________________
Name:
Title:
<PAGE> 665
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached Schedule]
A-1
<PAGE> 666
SCHEDULE OF ORIX MORTGAGE LOANS
<TABLE>
<CAPTION>
CONTROL LOAN MORTGAGE LOAN / PROPERTY NAME PROPERTY ADDRESS CITY STATE ZIP
NUMBER NUMBER LOAN SELLER CODE
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
3 3727 ORIX Medical Mutual of Ohio Office 3737 Sylvania Avenue Toledo OH 43623
Building - Toledo
4 3729 ORIX Medical Mutual of Ohio Office 23700 Commerce Park Road Beachwood OH 44122
Building - Beachwood
11 3452 ORIX 250 Plaza Office Building 250 East Wisconsin Avenue Milwaukee WI 53202
24 3583 ORIX Distribution Services Limited US Highway 41 and 100 County Princeton IN 47670
Road West
40 3808 ORIX SugarOak Office Retreat 423 - 491 Carlisle Drive Herndon VA 20170
41 3589 ORIX Dronningens Gade Portfolio 7A, 36A-2, 37A, & 38A Charlotte Amalie, VI 00803
Dronningens Gade, Queen's St. Thomas
Quarter
49 3288 ORIX Bayshore Executive Plaza 10800 Biscayne Boulevard Miami FL 33161
55 3476 ORIX Lyrewood Pointe Apartments 7806 Lyrewood Lane Oklahoma City OK 73132
58 3510 ORIX Park Square Court 400 Sibley Street St. Paul MN 55101
76 3710 ORIX Renner Plaza Office Building 251 Renner Parkway Richardson TX 75080
119 3379 ORIX CountryHouse Residences 900 West 46th Street Davenport IA 52806
124 3753 ORIX Miami Gardens Office Center 99 NW 183rd Street North Miami Beach FL 33169
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGINAL MORT- NOTE CUT-OFF DATE MONTHLY ORIGINAL REMAIN- SCHED-
NUMBER NUMBER BALANCE GAGE RATE DATE BALANCE DEBT TERM TO ING TERM TO ULED
SERVICE MATURITY MATURITY / MATURITY
PAYMENT / ARD ARD (MONTHS) DATE
(MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3 3727 14,700,000 8.6200% 03/28/00 14,671,955 114,282.80 120 116 04/01/10
4 3729 5,100,000 8.6200% 03/28/00 5,090,270 39,649.14 120 116 04/01/10
11 3452 15,000,000 7.6700% 07/12/99 14,886,077 106,633.79 120 108 08/01/09
24 3583 9,750,000 8.1700% 10/15/99 9,700,591 72,700.87 120 111 11/01/09
40 3808 6,100,000 8.2400% 05/15/00 6,093,573 45,784.39 120 118 06/01/10
41 3589 6,077,000 9.3100% 01/26/00 6,061,116 50,258.43 120 114 02/01/10
49 3288 5,325,000 7.5700% 05/25/99 5,276,287 37,488.75 120 106 06/01/09
55 3476 5,045,000 8.3300% 09/17/99 5,018,358 38,185.51 120 110 10/01/09
58 3510 4,950,000 8.1400% 09/10/99 4,922,476 36,805.61 120 110 10/01/09
76 3710 3,250,000 8.9600% 02/04/00 3,243,376 26,056.75 120 115 03/01/10
119 3379 1,933,000 9.1400% 11/03/99 1,921,171 16,407.38 120 112 12/01/09
124 3753 1,856,000 8.3100% 04/27/00 1,853,331 14,021.87 120 117 05/01/10
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN STATED CALCU- CALCULATED LOAN CROSS ANTICI- DEFEASE DEFEASE OWNERSHIP
NUMBER NUMBER ORIGINAL LATED REMAINING BALANCE AT COLLATER- PATED START END DATE INTEREST
AMORT- ORIGINAL AMORT- MATURITY / ALIZED REPAY- DATE
IZATION AMORT- IZATION ARD (MORTGAGE MENT
TERM IZATION TERM LOAN GROUP) DATE
(MONTHS) TERM (MONTHS)
(MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3 3727 360 360 356 13,335,030 Yes (a) NAP 09/01/02 12/31/09 Fee Simple
4 3729 360 360 356 4,626,438 Yes (a) NAP 09/01/02 12/31/09 Fee Simple
11 3452 360 360 348 13,311,696 No NAP 09/01/02 04/30/09 Fee Simple
24 3583 360 360 351 8,755,485 No NAP 09/01/02 07/31/09 Fee Simple
40 3808 360 360 358 5,485,618 No NAP 09/01/02 02/28/10 Fee Simple
41 3589 360 360 354 5,594,558 No NAP 09/01/02 10/31/09 Fee Simple
49 3288 360 360 346 4,714,063 No NAP 09/01/02 02/28/09 Fee Simple
55 3476 360 360 350 4,548,197 No NAP 09/01/02 06/30/09 Fee Simple
58 3510 360 360 350 4,442,824 No NAP 09/01/02 06/30/09 Fee Simple
76 3710 360 360 355 2,971,016 No NAP 09/01/02 11/30/09 Fee Simple
119 3379 300 300 292 1,644,598 No NAP 09/01/02 08/31/09 Fee Simple
124 3753 360 360 357 1,672,115 No NAP 09/01/02 01/31/10 Fee Simple
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN INTEREST MASTER YIELD MAINTENANCE
NUMBER NUMBER ACCRUAL SERVICING CALCULATION
METHOD FEE RATE METHOD
---------------------------------------------------------------------
<S> <C> <C> <C> <C>
3 3727 Actual/360 0.0400% NAP
4 3729 Actual/360 0.0525% NAP
11 3452 Actual/360 0.0400% NAP
24 3583 Actual/360 0.0400% NAP
40 3808 Actual/360 0.0525% NAP
41 3589 Actual/360 0.0525% NAP
49 3288 Actual/360 0.0525% NAP
55 3476 Actual/360 0.0525% NAP
58 3510 Actual/360 0.0650% NAP
76 3710 Actual/360 0.0950% NAP
119 3379 Actual/360 0.1450% NAP
124 3753 Actual/360 0.1450% NAP
</TABLE>
A-1
<PAGE> 667
EXHIBIT B
The Seller hereby represents and warrants, as of the Closing Date,
that:
(a) The Seller is a duly formed limited liability company,
validly existing and in good standing under the laws of the State of Delaware.
(b) The Seller 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 Purchaser, 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.
(d) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this Agreement by
the Seller, will not violate the Seller's certificate of formation, limited
liability agreement or other 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 Seller 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
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.
(f) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the Seller from
entering into this Agreement or, in the Seller's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of the
Seller 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 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.
B-1
<PAGE> 668
(h) The transfer of the Mortgage Loans by the Seller to the
Purchaser, as contemplated herein, is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(i) The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
(j) The Seller will be solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
(k) After giving effect to its transfer of the Mortgage Loans
to the Purchaser, as provided herein, the value of the Seller's assets, either
taken at their present fair saleable value or at fair valuation, will exceed the
amount of the Seller's debts and obligations, including contingent and
unliquidated debts and obligations of the Seller, and the Seller will not be
left with unreasonably small assets or capital with which to engage in and
conduct its business.
(l) 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.
(m) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller are pending or contemplated.
B-2
<PAGE> 669
EXHIBIT C
The Seller hereby represents and warrants, as of the Closing Date (or
as of such other date specified in the particular representation and warranty)
with respect to each Mortgage Loan, that:
(1) Immediately prior to the transfer thereof by Seller to the
Purchaser and the assignment thereof to the Trustee, Seller
had good and marketable title to, and was the sole owner and
holder of, such Mortgage Loan, free and clear of any and all
liens, charges, encumbrances or any other ownership,
participation or other interests on, in or to such Mortgage
Loan (other than, in certain cases, the right of the Master
Servicer or a Sub-Servicer to master service or primary
service such Mortgage Loan). Seller has validly and
effectively conveyed to the Purchaser all legal and beneficial
interest in and to such Mortgage Loan free and clear of any
pledge, lien or security interest.
(2) The Seller has no knowledge of any material default (or
any event, circumstance or condition that would under the
Mortgage Loan documents be considered a material default) by a
related Borrower resulting from the material representations
and warranties made by such Borrower in the related Mortgage
Loan documents being untrue at the time of origination of the
related Mortgage Loan. Seller had full right and authority to
sell, assign and transfer such Mortgage Loan to the Purchaser;
and each Mortgage Loan is properly endorsed as provided in the
Pooling and Servicing Agreement, and such endorsement is
genuine.
(3) The information pertaining to such Mortgage Loan set forth
in the Mortgage Loan Schedule was true and correct, and met
the requirements of this Agreement and the Pooling and
Servicing Agreement, in all material respects as of the
Cut-off Date.
(4) Such Mortgage Loan was not, as of the Cut-off Date or at
any time since origination, more than thirty (30) days
delinquent in respect of any Scheduled P&I Payment required
thereunder, without giving effect to any applicable grace
period.
(5) Each Mortgage securing such Mortgage Loan constitutes a
legal, valid and, subject to the exceptions in paragraph 12
below, enforceable first lien upon the Borrower's interest in
the related Mortgaged Property, including, without limitation,
all buildings located thereon and all fixtures attached
thereto, subject only to (and such Mortgaged Property is free
and clear of all encumbrances and liens having priority over
the lien of such
C-1
<PAGE> 670
Mortgage, except for) (a) the lien of current real property
taxes and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and
other matters of public record specifically referred to in the
lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such
Mortgage Loan or approved after origination, which do not
materially and adversely affect the current use of the
Mortgaged Property, the security interest intended to be
provided by such Mortgage or the value of the Mortgaged
Property, (c) the rights of tenants (whether under ground
leases or space leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that
such tenants are performing under such leases), (d) exceptions
and exclusions specifically referred to in the lender's title
insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan, and
(e) if such Mortgage Loan is cross-collateralized with any
other Mortgage Loan, the lien of the Mortgage for such other
Mortgage Loan (the exceptions set forth in the foregoing
clauses (a), (b), (c), (d) and (e), collectively, "Permitted
Encumbrances"). Such Permitted Encumbrances do not materially
interfere with the security intended to be provided by the
related Mortgage(s), or materially and adversely affect the
current use or value of the related Mortgaged Property or the
current ability of such Mortgaged Property to generate Net
Operating Income sufficient to service the Mortgage Loan.
Except as contemplated by clause (e) of the second preceding
sentence, none of the Permitted Encumbrances are mortgage
liens that are senior to or pari passu with the lien of the
related Mortgage. With respect to personal property of the
related Borrower constituting part of the related Mortgaged
Property which is material to the value of the related real
estate constituting part of such Mortgaged Property, or which,
if no UCC financing statement were filed with respect to such
personal property, would result in a material impairment of
the security for the related Mortgage Loan (such personal
property is herein referred to as "Material Personal
Property"), (a) a UCC financing statement has been filed
and/or recorded in all places necessary to perfect a valid
security interest in the Material Personal Property; (b) an
assignment of such UCC financing statement has been executed
by the Seller in favor of the Trustee or in blank (which the
Trustee or its designated agent may complete and file in the
same filing office in which such UCC financing statement was
filed); and (c) any security agreement, chattel mortgage or
equivalent document related to and delivered in connection
with such Mortgage Loan establishes and creates a valid and,
subject to the exceptions in paragraph 12 below, enforceable
first lien and
C-2
<PAGE> 671
first priority security interest in the property of the
related Borrower described therein, subject to any purchase
money security interest or any security interest to secure a
line of credit or similar financing attaching subsequent to
the date of origination of such Mortgage Loan and of which
Seller has no actual (as opposed to constructive) knowledge.
(6) The lien of each related Mortgage is insured by an
American Land Title Insurance ("ALTA") lender's title
insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized
title insurance company or its subsidiary, insuring the
originator of such Mortgage Loan, its successors and assigns
(as sole insured), as to the first priority lien of the
Mortgage in the original principal amount of such Mortgage
Loan after all advances of principal, subject only to
Permitted Encumbrances (or, if a title insurance policy has
not yet been issued in respect of any Mortgage Loan, a policy
meeting the foregoing description is evidenced by a commitment
for title insurance "marked-up" at the closing of such
Mortgage Loan). 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
Seller's knowledge as of the Closing Date, no material claims
have been made thereunder and no claims have been paid
thereunder (and Seller has not received notice of any material
claims having been made or paid thereunder). No holder of the
related Mortgage has done, by act or omission, anything that
would, and Seller has no actual knowledge of any other
circumstance that would, materially impair the coverage under
such title policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Purchaser, such
title policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of the
Purchaser without the consent of or notice to the insurer. To
Seller's knowledge, the insurance company that issued (or is
obligated to issue) such title policy is qualified to do
business in the jurisdiction in which the related Mortgaged
Property is located. Such policy contains no material
exclusion for or affirmatively insures (except for any
Mortgaged Property located in jurisdictions where such
affirmative insurance is not available) (a) access to a
physically open street, (b) encroachments of any part of the
buildings thereon over easements, (c) that the area shown on
the survey is the same as the property legally described in
the Mortgage, (d) except for the Mortgage Loan secured by the
Mortgaged Property identified on the Mortgage Loan Schedule as
Dronnigens Gade, which is comprised of three separate
non-contiguous lots (each of which is a separate tax parcel
and no other property is included within such tax parcel that
is not covered by the related Mortgage), that the Mortgaged
C-3
<PAGE> 672
Property constitutes one or more separate tax parcels
containing no other real property, and (e) that, to the extent
the Mortgaged Property consists of more than one parcel used
as a single tract of real property (other than separate
parcels with respect to Mortgage Loans secured by more than
one property), such parcels are contiguous. The Mortgage has
been properly recorded on the related Mortgaged Property and
all applicable Mortgage recording taxes have been paid.
(7) Neither Seller nor, to Seller's knowledge, any prior
holder of such Mortgage Loan has waived any material default,
breach, violation or event of acceleration existing under the
related Mortgage or Mortgage Note, except that certain
post-closing conditions or requirements that would either be
reasonably acceptable to a prudent commercial lender or that
would not otherwise materially and adversely affect the
security intended to be provided for such Mortgage Loan, may
not have yet been completed.
(8) As of the Closing Date there is no valid offset, defense,
counterclaim or right to rescission, including the defense of
usury, with respect to any of the Mortgage Note, Mortgage or
other agreements executed in connection therewith (except in
each case with respect to any excess interest on an ARD Loan
after the related Anticipated Repayment Date and any Default
Interest, late charges, Prepayment Premiums and Yield
Maintenance Charges).
(9) As of the Cut-off Date and as of the Closing Date, to
Seller's knowledge, there is no proceeding pending or
threatened for condemnation affecting all or a material
portion of the related Mortgaged Property. To the Seller's
knowledge based upon a site inspection conducted in connection
with the origination of the Mortgage Loan and a review of the
related engineering report, there is no unremedied damage at
the related Mortgaged Property that materially and adversely
affects the use, operation, or value of such Mortgaged
Property (except in such case where an escrow of funds or
letter of credit exists in an amount at least equal to 125% of
the amount estimated to be sufficient to effect the necessary
repairs and maintenance).
(10) At origination, such Mortgage Loan complied in all
material respects with all requirements of federal, state and
local laws (including, without limitation, laws pertaining to
usury) relating to the origination, funding and terms of such
Mortgage Loan or, to the best of Seller's knowledge, servicing
of such Mortgage Loan.
C-4
<PAGE> 673
(11) The proceeds of such Mortgage Loan have been fully
disbursed, and there is no requirement for future advances
thereunder.
(12) The Mortgage and Mortgage Note for such Mortgage Loan and
all other documents to which the related Borrower is a party
and which evidence or secure such Mortgage Loan, are each the
legal, valid and binding obligations of the related Borrower
(subject to any non-recourse provisions and any applicable
state anti-deficiency legislation), enforceable in accordance
with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, redemption,
fraudulent conveyance, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally and
by general principles of equity, and except that certain
provisions of such Mortgage Loan documents are or may be
unenforceable in whole or in part under applicable state or
federal laws, but neither the application of any such laws to
any such provisions nor the inclusion of any such provisions
renders any of the Mortgage Loan documents invalid as a whole,
and such Mortgage Loan documents taken as a whole are
enforceable to the extent necessary and customary for the
practical realization of the rights and benefits afforded
thereby.
(13) Except for the Mortgage Loan secured by the Mortgaged
Property identified on the Mortgage Loan Schedule as
Dronnigens Gade for which the commercial property, general
liability and umbrella coverage are written by underwriters at
Lloyds (London), the related Mortgaged Property is insured by
a fire and extended perils insurance policy, issued by an
insurer meeting the requirements of such Mortgage Loan and
having a claims-paying or financial strength rating of at
least A:VIII from A.M. Best Company or "A" (or the equivalent)
from Moody's Investor Service, Inc., Standard & Poor's Rating
Services, or its equivalent, in an amount at least equal to
the lesser of the outstanding principal balance of such
Mortgage Loan and 100% of the full replacement cost of the
improvements located on the related Mortgaged Property, on a
full replacement cost basis (or without deduction for
depreciation)(excepting, however, each Mortgaged Property
which is a multifamily mobile home park without material
improvements), with (if applicable) an appropriate endorsement
to avoid the application of any co-insurance provisions with
respect to such Mortgaged Property, and 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 an amount
customarily required by institutional lenders, and (except if
such Mortgaged Property is operated as a mobile home park) by
business interruption or rental
C-5
<PAGE> 674
loss insurance in an amount equal to the gross rentals for at
least a 12-month period (or an 18 month period for a Mortgaged
Property which is not an office, retail, self storage,
industrial, multifamily mobile home park or mixed use of the
foregoing). An architectural or engineering consultant has
performed an analysis of each of the Mortgaged Properties
located in seismic zones 3 or 4 in order to evaluate the
structural and seismic condition of such property, for the
sole purpose of assessing the probable maximum loss ("PML")
for the property in the event of an earthquake. In such
instance the PML was based on a return period of not less than
100 years, an exposure period of 50 years and a 10%
probability of excedence. If the resulting report concluded
the PML would exceed 20% of the amount of the replacement
costs of the improvements, earthquake insurance on such
Mortgaged Property was obtained by an insurer rated at least
A:VIII by A.M. Best Company or "A" (or the equivalent) from
Moody's Investor Services, Inc., Standard & Poor's Rating
Services or its equivalent. In addition, no such insurance
policy provides that it may be canceled, endorsed, altered or
reissued to effect a change in coverage unless such insurer
shall have first given the mortgagee under such Mortgage Loan
thirty (30) days' prior written notice, and no notice has been
received as of the date hereof; all premiums required to be
paid on such policy have been paid; all such policies contain
a standard mortgagee clause for the benefit of the holder of
the related Mortgage Loan; and the related Mortgage obligates
the related Borrower to maintain all such insurance and, at
the related Borrower's failure to do so, authorizes the
mortgagee under such Mortgage Loan to purchase such insurance
at the related Borrower's cost and expense and to seek
reimbursement from such Borrower. Further, all insurance
coverage required under the related Mortgage is in full force
and effect with respect to the related Mortgaged Property, and
if the related Mortgaged Property is located in a federally
designated special flood hazard area, the related Borrower is
required to maintain flood insurance in respect thereof
(exclusive of any parking lot or unused or undeveloped portion
thereof) to the extent available under the National Flood
Insurance Act of 1968. To Seller's knowledge, the insurer
issuing each of the foregoing insurance policies is qualified
to write insurance in the jurisdiction where the related
Mortgaged Property is located. Subject to clause (I) of
paragraph 51 below with respect to ground lease properties,
any insurance proceeds in respect of a casualty loss or
taking, will be applied either to (A) the repair or
restoration of all or part of the related Mortgaged Property
or (B) to the payment of the outstanding principal balance of
such Mortgage Loan together with any accrued interest thereon,
except that in the case of a ground-leased property casualty
and
C-6
<PAGE> 675
condemnation proceeds are required to be paid first to the
owner of the fee interest in the related property in
accordance with terms of the related ground lease and then in
accordance with the related Mortgage.
(14) A "Phase I" environmental site assessment meeting ASTM
requirements (or an update of a previously conducted
assessment) was performed by a licensed third-party
professional experienced in environmental matters with respect
to the related Mortgaged Property within the 24-month period
prior to the Closing Date. Either (x) the related
environmental reports did not reveal any known circumstances
or conditions with respect to the related Mortgaged Property
that rendered such Mortgaged Property, at the date(s) of such
environmental report(s), in material violation of any
applicable environmental laws or (y) if any such environmental
report did 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 either (i) the expenditure of funds necessary to effect
such remediation is not material in relation to the
outstanding principal balance of the related Mortgage Loan, or
(ii) a sufficient escrow of funds exists for purposes of
effecting such remediation (and the Borrower has covenanted in
the Mortgage Loan documents to perform such remediation), or
(iii) 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 recommended by
the environmental site assessment. Seller has no knowledge of
any environmental condition or circumstance affecting such
Mortgaged Property and not disclosed in the related
environmental report(s), which would impact such Mortgaged
Property's soil or groundwater quality or require remediation
by the related Borrower under, or otherwise would be a
material violation of, applicable environmental law. All such
environmental assessments that were in the possession of the
Seller and that relate to a Mortgaged Property which is
insured by an environmental insurance policy have been
delivered to or disclosed to the environmental insurance
carrier issuing such policy prior to the issuance of such
policy. The related Mortgage or other loan documents contain
covenants on the part of the related Borrower requiring its
compliance with applicable federal and state environmental
laws and regulations in respect of the related Mortgaged
Property. To Seller's actual knowledge, in reliance on such
environmental reports, each Mortgaged Property is in material
compliance with all applicable federal, state and local laws
pertaining to the environmental hazards other than as
disclosed in such environmental reports, and to Seller's
actual
C-7
<PAGE> 676
knowledge, Seller has received no notice of violation of such
laws issued by any governmental agency or authority, which
would cause the Mortgaged Property not to be in compliance
with all federal, state and local laws pertaining to the
environmental hazards. Each Borrower represents and warrants
in the related Mortgage Loan documents that except as set
forth in certain environmental reports and to its knowledge
there is not located on the related Mortgaged Property and the
Borrower will not use, cause or permit to exist on the related
Mortgaged Property any hazardous materials in any manner which
violates federal, state or local laws, ordinances, regulations
or orders relating to the environment. 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,
penalties, fines, expenses and claims of any kind whatsoever
(including reasonable 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 the Borrower in connection
with such Mortgage Loan.
(15) Except for the Mortgage Loans identified on the Mortgage
Loan Schedule as Medical Mutual of Ohio-Beachwood and Medical
Mutual of Ohio-Toledo, such Mortgage Loan is not
cross-collateralized with other Mortgage Loans in the Mortgage
Pool. Such Mortgage Loan is not cross-collateralized with a
mortgage loan outside the Mortgage Pool. Each Mortgage
securing a Cross-Collateralized Mortgage Loan or other
Mortgage Loan secured by more than one related Mortgaged
Property secures an amount no less than the aggregate original
loan balance of the related Mortgage Loan combined with that
of any other Mortgage Loans in the related
Cross-Collateralized Group, if any; provided, that in the case
of each Mortgage on a related Mortgaged Property located in
Florida or New York, the Mortgage secures an amount no less
than 150% of the allocated loan amount for such Mortgaged
Property.
(16) The terms of the Mortgage Note and Mortgage for such
Mortgage Loan have not been impaired, waived, altered or
modified in any material respect, except those that occurred
prior to the Cut-off Date by written instrument which is
specifically set forth in the related Mortgage File and which
is duly recorded to the extent required to perfect, maintain,
or continue the validity and priority of the Mortgage Loan
Documents. No Mortgage has been satisfied, canceled, rescinded
or subordinated, no material portion of the related Mortgaged
Property has been released, and no
C-8
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instrument has been executed that would effect any such
satisfaction, cancellation, subordination, rescission or
release.
(17) There are no delinquent insurance premiums (to the best
knowledge of Seller), or delinquent taxes, water charges,
sewer rents or other similar outstanding charges affecting the
related Mortgaged Property that are not otherwise covered by
an escrow of funds sufficient to pay such charges.
(18) The interest of the Borrower in the related Mortgaged
Property consists of a fee simple and/or leasehold estate or
interest in real property and the improvements thereon.
(19) Such Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
(20) The assignment of the related Mortgage to the Purchaser
has been duly authorized, executed and delivered by Seller, is
in a recordable form and constitutes the legal, valid, binding
and, subject to the exceptions in paragraph 12 above,
enforceable and full assignment of such Mortgage from the
relevant assignor to the Purchaser, and the assignment of the
related Assignment of Leases, if any, or of any other
agreement executed in connection with such Mortgage Loan to
the Purchaser constitutes the legal, valid, binding and,
subject to the exceptions in paragraph 12 above, enforceable
and full assignment thereof from the relevant assignor to the
Purchaser.
(21) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such 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 escrows and deposits are conveyed
hereunder to the Purchaser. Any and all requirements under
each Mortgage Loan as to completion of any material
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 the funds so escrowed have not been
released.
(22) As of the date of origination of such Mortgage Loan and
as of the Closing Date, the related Mortgaged Property was and
is free and clear of any mechanics' and materialmen's liens or
liens in
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the nature thereof which create a lien prior to that created
by the related Mortgage(s).
(23) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged
Property at the time of origination of such Mortgage Loan lies
outside the boundaries and building restriction lines of such
property to any material extent (except to the extent that it
may constitute a legal non-conforming use or structure or
title insurance was provided with respect thereto); no
improvements on adjoining properties encroach upon such
Mortgaged Property (except to the extent not material or
covered by title insurance); and no improvement located on or
forming part of such Mortgaged Property is in material
violation of any applicable zoning laws or ordinances and any
non-material violation does not materially and adversely
affect the use, operation or value of such Mortgaged Property
(provided, however, that, although it does not constitute a
violation of law, the improvements on such Mortgaged Property
may constitute a legal non-conforming use or structure).
(24) To the extent required under applicable law as of the
date of origination and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such
Mortgage Loan was authorized to do business in the
jurisdiction in which the related Mortgaged Property is
located at all times when it originated and held the Mortgage
Loan.
(25) With respect to each Mortgage Loan: (a) since the date of
origination of the such Mortgage Loan, there has been no
declaration by the Seller of an event of acceleration under
the related Mortgage or Mortgage Note; (b) there is no
existing material default or breach under the related
Mortgage, Mortgage Note or Assignment of Leases; (c) to
Seller's knowledge there has not been a material default or
breach under the related Mortgage, Mortgage Note or Assignment
of Leases since the origination of the related Mortgage Loan;
and (d) Seller has not, without having reviewed any public
records, received notice of any event (other than payments due
but not yet 30 days' delinquent) that, with the passage of
time or with notice and the expiration of any grace or cure
period, would constitute such a material default, breach or
event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach
or event of acceleration that specifically pertains to any
matter otherwise covered by any other representation and
warranty made by Seller in any other paragraph of this Exhibit
C and provided, further, that certain post-closing conditions
or requirements may not have yet been completed.
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<PAGE> 679
(26) If such Mortgage Loan is secured in whole or in part by
the interest of a Borrower under a Ground Lease and by the
related fee interest, such fee interest is encumbered by the
related Mortgage, and the related Mortgage does not by its
terms provide that it will be subordinated to the lien of any
mortgage or any other lien upon such fee interest.
(27) No Mortgage Loan contains any equity participation by the
lender, provide for any contingent or additional interest in
the form of participation in the cash flow of the related
Mortgaged Property or, except for ARD Loans, provide for the
negative amortization of interest. Neither Seller nor any
affiliate thereof has any obligation to make any capital
contributions to the Borrower under the Mortgage Loan. The
Mortgage Loan was not originated for the sole purpose of
financing the construction of incomplete improvements on the
related Mortgaged Property.
(28) No holder of such Mortgage Loan has, to Seller's
knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the
owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by the
Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement
of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by thirty (30) days the first Due Date under
the related Mortgage Note.
(29) To Seller's knowledge, based on due diligence customarily
performed in the origination of comparable mortgage loans, as
of the date of origination of such Mortgage Loan, (a)(i) the
related Borrower was in possession of all material licenses,
permits and authorizations required by applicable laws for its
ownership and occupancy of the related Mortgaged Property as
it was then operated (excepting those which any tenant must
possess for its occupancy and operations) and (ii) with
respect to each Mortgaged Property improved by a hotel or
health care facility, the related Borrower was in possession
of all material licenses, permits and authorizations required
by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated (excepting
those which any tenant must possess for its occupancy and
operations), and (b) all such licenses, permits and
authorizations were valid and in full force and effect. The
Mortgage Loan requires the related Borrower (if not an
individual) to be qualified to do business and for the
Borrower to cause the Mortgaged Property to be in material
compliance with all regulations, licenses, permits, zoning,
and building laws.
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<PAGE> 680
(30) The related Mortgage or Mortgage Note, together with
applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph
12 above) such as to render the rights and remedies of the
holders thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(31) Such 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 (but without regard to the rule in
Treasury Regulation Section 1.860G-2(f)(2)). Any prepayment
premium and yield maintenance charges applicable to the
Mortgage Loan constitute "customary prepayment penalties"
within the meaning of Treasury Regulation Section
1.860G-1(b)(2).
(32) No fraud with respect to such Mortgage Loan has taken
place on the part of Seller or, to Seller's knowledge, on the
part of any originator, in connection with the origination of
such Mortgage Loan.
(33) The terms of such Mortgage Loan provide or, at lender's
option, permit, and the terms of the Pooling and Servicing
Agreement and any Sub-Servicing Agreement to which such
Mortgage Loan is subject provide for purposes of calculating
distributions on the Certificates and additional compensation
payable to the Master Servicer, the Special Servicer and any
related Sub-Servicer, that payments on and proceeds of such
Mortgage Loan will be applied to principal and interest at the
related Mortgage Rate (excluding, in the case of an ARD Loan
after its Anticipated Repayment Date, Additional Interest) due
and owing at the time such payments or proceeds are received,
prior to being applied to any Default Charges, assumption fees
and modification fees then due and owing.
(34) The origination, servicing and collection practices used
with respect to such Mortgage Loan have been in all material
respects legal and have met generally accepted servicing
standards utilized by institutional and commercial mortgage
lenders and loan servicers the main business of which is the
origination and servicing of similar commercial and
multifamily mortgage loans.
(35) There exists as part of the related Mortgage File an
Assignment of Leases (either as a separate instrument or
incorporated into the related Mortgage); and such Assignment
of Leases creates in favor of the holder, a valid, perfected
and
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<PAGE> 681
(subject to the exceptions set forth in paragraph 12 above)
enforceable lien of the same priority as the related Mortgage,
in the property and rights described therein; provided that
the enforceability of such lien is subject to applicable
bankruptcy, insolvency, reorganization, moratorium, and other
laws affecting the enforcement of creditors' rights generally,
and by general principles of equity. Seller has the full right
to assign to the Purchaser such Assignment of Leases and the
lien created thereby as described in the immediately preceding
sentence. No Person other than the Borrower owns any interest
in any payments due under the related leases. The related
Mortgage or such Assignment of Leases provides for the
appointment of a receiver for rents or allows the lender to
enter into possession to collect rent or provides for rents to
be paid directly to the mortgagee in the event of a default.
(36) At the time of origination of the related Mortgage Loan
the Mortgaged Property was not encumbered by, and without
having reviewed any public records since origination, Seller
has no actual knowledge (as opposed to constructive knowledge)
that the related Mortgaged Property is presently encumbered
by, any debt (excluding preferred equity and mezzanine debt)
other than the related Mortgage Loan or another Mortgage Loan.
(37) Subject to a one-time (or, in the case of certain
Mortgage Loans, a multiple-time) transfer right allowed to a
transferee reasonably acceptable to the lender in accordance
with certain provisions set forth in the related Mortgage, and
excluding transfers for estate planning purposes, transfers to
affiliates or family members, transfers for or other purposes
where no change of control occurs or such transfers which have
been pre-approved to transferees which otherwise have met the
Mortgage Loan Seller's underwriting criteria, the related
Mortgage contains a "due-on-sale" clause which provides for
the acceleration of, or permits the lender to accelerate, the
payment of the unpaid principal balance of such Mortgage Loan
if, without the prior written consent of the holder of the
Mortgage and/or the satisfaction of specified criteria set
forth in the related Mortgage Loan documents, either (a) the
related Borrower transfers ownership of the related Mortgaged
Property subject to such Mortgage or (b) any controlling
interest in the related Borrower is directly or indirectly
transferred or sold. The related Mortgage requires the related
Borrower to pay all of the lender's reasonable fees and
expenses relating to obtaining consent and approval, including
the cost of any REMIC opinion required under the related
Mortgage Loan documents.
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<PAGE> 682
(38) Seller has not waived any claims against the related
Borrower or any related guarantor under any non-recourse
exceptions contained in the related Mortgage Note.
(39) The related Mortgage and/or Mortgage Note provides either
(a) that the related Borrower and another individual shall be
fully and personally liable for all liabilities, costs,
losses, damages, expenses or claims suffered or incurred by
the lender or lender's successors or assigns by reason of or
in connection with and to the extent of, or (b) that the
related Mortgage Loan shall become a recourse obligation of
the Borrower and an individual guarantor in the event of, any
fraud or intentional material misrepresentation by the related
Borrower. Further, the related Mortgage and/or Mortgage Note
provides that the related Borrower and another individual
shall be fully and personally liable for all liabilities,
costs, losses, damages, expenses or claims suffered or
incurred by the lender or lender's successors or assigns by
reason of or in connection with and to the extent of the
related Borrower's misapplication or misappropriation of rents
(after the occurrence of a default), insurance proceeds or
condemnation awards, acts of waste (or failure to maintain and
repair the related Mortgage Property in accordance with the
Mortgage Loan documents to the extent not covered by insurance
proceeds made available to the lender) and breaches of
environmental covenants.
(40) If such Mortgage Loan is an ARD Loan, it commenced
amortizing on its initial scheduled Due Date, and it provides
that: (i) its Mortgage Rate will increase by at least two (2)
percentage points in connection with the passage of its
Anticipated Repayment Date; (ii) its Anticipated Repayment
Date is not less than seven (7) years following the
origination of such Mortgage Loan; (iii) no later than the
related Anticipated Repayment Date, the related Borrower is
required (if it has not previously done so) to enter into a
"lockbox agreement" whereby all revenue from the related
Mortgaged Property shall be deposited directly into a
designated account controlled by the Master Servicer; (iv) any
cash flow from the related Mortgaged Property that is applied
to amortize such Mortgage Loan following its Anticipated
Repayment Date shall, to the extent such net cash flow is in
excess of the Scheduled P&I Payment payable therefrom, be net
of budgeted and discretionary (servicer approved) capital
expenditures; and (v) if the property manager for the related
Mortgaged Property can be removed by or at the direction of
the lender on the basis of a debt service coverage test, the
subject debt service coverage ratio shall be calculated
without taking account of any increase in the related Mortgage
Rate on such Mortgage Loan's Anticipated Repayment Date.
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<PAGE> 683
(41) At origination of such Mortgage Loan, neither the related
Borrower nor any related guarantor was, to Seller's knowledge
(based on customary and usual due diligence conducted by
prudent institutional commercial mortgage lenders), a debtor
in any pending state or federal bankruptcy or insolvency
proceeding. Furthermore, at the Closing Date, without having
reviewed any public records, Seller has no knowledge that the
related Borrower was a debtor in any pending state or federal
bankruptcy or insolvency proceeding.
(42) The servicing and collection practices used with respect
to such Mortgage Loan have in all material respects been legal
and met customary standards used by institutional lenders with
respect to comparable mortgage loans.
(43) (a) Without having reviewed any public records since
origination, Seller has no knowledge of any pending litigation
or other pending legal proceedings involving the related
Borrower or the related Mortgaged Property that can reasonably
be expected to materially interfere with the security intended
to be provided by the related Mortgage, the current use of the
related Mortgaged Property, or the current ability of the
Mortgaged Property to generate net cash flow sufficient to
service the Mortgage Loan.
(b) Without having reviewed any public records, Seller has no knowledge
of any pending governmental investigations involving the related Borrower or the
related Mortgaged Property that can reasonably be expected to materially
interfere with the security intended to be provided by the related Mortgage, the
current use of the related Mortgaged Property, or the current ability of the
Mortgaged Property to generate net cash flow sufficient to service the Mortgage
Loan.
(44) If such Mortgage Loan had a Cut-off Date Balance greater
than $5,000,000, the related Borrower has provided in its
organizational documents and/or covenanted in the Mortgage
Loan documents that it is a "single purpose entity". For
purposes of this representation, "single purpose entity" shall
mean an entity, other than an individual, which is limited in
its purpose by its organization documents and/or by the terms
of the related Mortgage Loan documents to owning and operating
a single property or group of properties, and which is not
permitted by its organization documents and/or by the related
Mortgage Loan documents to engage in any business unrelated to
such property and its financing, have any material assets
other than those related to its interest in the related
Mortgaged Property or its financing, or have any indebtedness
prohibited under the related Mortgage Loan. Furthermore, if
such Mortgage Loan had a Cut-off Date Balance greater than
$7,500,000, the related Borrower has
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<PAGE> 684
provided in its organizational documents and/or covenanted in
the Mortgage Loan documents that it shall maintain its own
books, records and accounts, in each case which are separate
and apart from the books and records and accounts of any other
person, conduct its business in its own name, not guarantee or
assume the debts or obligations of any other person, not
commingle its assets or funds with those of any other person,
transact business with affiliates on an arm's length basis and
hold itself out as being a legal entity, separate and apart
from any other person. To Seller's knowledge, at the time of
origination of such Mortgage Loan, the related Borrower was in
compliance with the aforementioned provisions/covenants.
(45) Except in cases where the related Mortgage Note or the
related Mortgage provide for (a) a substitution of
governmental securities for such Mortgaged Properties in a
defeasance, (b) a release of a portion of the related
Mortgaged Property, which portion was not considered material
for purposes of underwriting the Mortgage Loan, or (c) a
release of a portion of the related Mortgaged Property
conditioned upon the satisfaction of certain underwriting and
legal requirements, property performance requirements and/or
the payment of a release price or a partial defeasance,
neither the related Mortgage Note nor the related Mortgage
requires the lender to release all or any material portion of
the related Mortgaged Property from the lien of the related
Mortgage except upon payment in full of all amounts due under
the related Mortgage Loan.
(46) Such Mortgage Loan does not permit the related Mortgaged
Property to be encumbered subsequent to the date of
origination of such Mortgage Loan by any lien junior to or of
equal priority with the lien of the related Mortgage without
the prior written consent of the holder thereof. The Seller
has not consented to the encumbrance of the related Mortgage
Property by any lien junior to or of equal priority with the
lien of the related Mortgage.
(47) With respect to any Mortgage Loan that is a Defeasance
Loan, the related Mortgage Note or Mortgage provides that the
Defeasance Option is not exercisable prior to a date that is
at least two (2) years following the Startup Day for REMIC I
(or, if such Mortgage Loan is an asset of a Loan REMIC, for
such Loan REMIC). In addition, each Mortgage loan that is a
Defeasance Loan permits defeasance (i) only with substitute
collateral constituting "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage
Note when due, as certified by an independent certified public
accountant and (ii) to
C-16
<PAGE> 685
Seller's knowledge, only for the purpose of facilitating the
disposition of mortgaged real property and not as part of an
arrangement to collateralize a REMIC offering with obligations
that are not real estate mortgages.
(48) If the Mortgage Loan permits defeasance, then the related
Mortgage or other related loan document provides that the
related Borrower shall (a) pay all Rating Agency fees
associated with defeasance (if Rating Agency approval is a
specific condition precedent thereto) and all other reasonable
expenses associated with defeasance, including, but not
limited to, accountant's fees and opinions of counsel, or (b)
provide all opinions required under the related loan
documents, including, if applicable, a REMIC opinion, and any
a applicable rating agency letters confirming no downgrade or
qualification of ratings on any classes in the transaction and
that the related Mortgage is fully enforceable in accordance
with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws affecting the
enforcement of creditors' rights generally, and by general
principles of equity).
(49) If the Mortgage in respect of any Mortgage Loan is a deed
of trust, (a) a trustee, duly qualified under applicable law
to serve as such, is properly designated and serving under
such Mortgage, and (b) except in connection with a trustee's
sale after default by the related Borrower, no fees or
expenses are payable to such trustee by Seller or any
subsequent mortgagee.
(50) The related Mortgage Note is not secured by any
collateral that is not included in the Trust Fund.
(51) If such Mortgage Loan is secured by the interest of the
related Borrower as a lessee under a Ground Lease covering all
or any material portion of the related Mortgaged Property, but
not by the related fee interest in such Mortgaged Property or
portion thereof:
(a) Such Ground Lease was in full force and effect and, to
Seller's knowledge, no default existed under such Ground Lease nor did any
estoppel from the related ground lessor indicate a material incipient default
nor is there any existing condition which, but for the passage of time or giving
of notice or both would result in a default; Seller has provided the ground
lessor with notice of its lien in accordance with the terms of such Ground
Lease; and, as of the Closing Date, Seller has not received written notice of
any, and to Seller's knowledge there is no, default under such Ground Lease;
C-17
<PAGE> 686
(b) Either (1) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the interest of the holder of the
Mortgage Loan or (2) the related ground lessor has granted the holder of the
Mortgage Loan the right to written notice of and the right to cure any default
or breach by the ground lessee, including, when necessary, sufficient time to
gain possession of the interest of the lessee under the Ground Lease through
legal proceedings or to take other action so long as the Seller or its assignee
is proceeding diligently;
(c) Upon the foreclosure of such Mortgage Loan or acceptance of a
deed in lieu thereof, the related Ground Lease is assignable to the lender under
such Mortgage Loan and its assigns without the consent of the ground lessor
thereunder;
(d) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease, or an estoppel letter or other agreement
received by the originator of such Mortgage Loan from the ground lessor, permits
the interest of the lessee thereunder to be encumbered by the related Mortgage;
such Ground Lease does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns, in a manner that would materially,
adversely affect the security provided by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its recordation,
with the exception of written instruments which are a part of the related
Mortgage File;
(e) 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;
(f) Such Ground Lease, or an estoppel letter or other agreement
received by the originator of such Mortgage Loan from the ground lessor,
provides that no notice of termination given under such Ground Lease is
effective against the holder unless a copy has been delivered to such lender in
the manner described in such Ground Lease;
(g) Such Ground Lease, or an estoppel letter or other agreement
received by the originator of such Mortgage Loan from the ground lessor,
requires the ground lessor to enter into a new lease with the holder of such
Mortgage Loan upon termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(h) Such Ground Lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the holder of such Mortgage Loan if it
becomes the owner of such leasehold interest) that extends not less than the
later to occur of (i) ten (10) years beyond the stated maturity of or
Anticipated
C-18
<PAGE> 687
Repayment Date for such Mortgage Loan or (ii) ten (10) years beyond the
amortization period of such Mortgage Loan;
(i) Under the terms of such Ground Lease, or an estoppel letter or
other agreement received by the originator of the Mortgage Loan from the ground
lessor, and the related Mortgage, taken together, any related insurance proceeds
or condemnation proceeds (other than in respect of a total or substantially
total loss or taking) will be applied either (1) to the repair or restoration of
all or part of the related Mortgaged Property, with the lender or a trustee
appointed by it having the right to hold and disburse such proceeds as the
repair or restoration progresses or (2) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued interest
thereon. Under the terms of the Ground Lease and the related Mortgage, any
insurance proceeds or condemnation awards in respect of a total or substantially
total loss or taking will be applied first to the payment of the outstanding
principal and interest on the Mortgage Loan (except as otherwise provided by
applicable law);
(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender; and
(k) Such Ground Lease may not be amended, modified or, except in
the case of a default, canceled or terminated without the prior written consent
of the holder of the Mortgage Loan, and any such action without such consent is
not binding on such holder, provided that such holder has provided the ground
lessor with notice of its lien in accordance with the terms of such Ground
Lease.
(52) Neither the related Mortgage Note nor the related
Mortgage contain provisions limiting the right or ability of
Seller to assign, transfer and convey such documents.
(53) Each Mortgaged Property constitutes one or more complete
separate tax lots.
(54) Seller has inspected or caused to be inspected each
related Mortgaged Property within the twelve (12) months
preceding the Cut-off Date.
(55) The related Mortgage requires the related Borrower to
provide the holder of such Mortgage with quarterly and annual
operating statements, rent rolls and related information and
either quarterly or annual financial statements.
(56) The related Mortgage or other related loan document
provides that the Borrower shall pay any fees payable to a
Rating Agency in connection with the approval of an assumption
of the related Mortgage Loan (if such Mortgage or other
related loan
C-19
<PAGE> 688
document provides that Rating Agency approval is a specific
condition precedent thereto).
(57) The related Mortgage or Mortgage Note provides a grace
period for delinquent Monthly Payments no longer than ten (10)
days from the applicable Due Date.
(58) The Mortgage File contains 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 satisfies the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by
the Appraisal Standards Board of the Appraisal Foundation, all
as in effect on the date the Mortgage Loan was originated.
(59) As of the Closing Date, no group of the Seller's Mortgage
Loans representing more than 5% of the Initial Pool Balance
has the same Borrower or, to the Seller's knowledge, has
Borrowers that are affiliates of each other.
(60) To Seller's knowledge based on its inquiry and./or
engineering reports and/or appraisals obtained in connection
with the origination of each Mortgage Loan, each related
Mortgaged Property is served by public utilities, water and
sewer (or septic facilities).
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EXHIBIT D-1
FORM OF CERTIFICATE OF ASSISTANT SECRETARY OF
ORIX REAL ESTATE CAPITAL MARKETS, LLC
I, the undersigned, J. Russell Akin, hereby certify that I was validly appointed
to the office of, and am, the Assistant Secretary of ORIX Real Estate Capital
Markets, LLC (the "Company"), a Delaware limited liability company, and do
further certify as follows:
(a) Attached hereto as Exhibit A is a true and correct excerpt
from the Resolutions of the Company adopted by its Board of
Managers on May 21, 1997 ("Resolutions"), which Resolutions
have not been amended, modified or rescinded, except as set
forth in the February Resolutions described below, and,
subject to the February Resolutions, remain in full force and
effect.
(b) Attached hereto as Exhibit A-1 is a true and correct
excerpt from the Resolutions of the Company adopted by its
Board of Managers on February 11, 1999 ("February
Resolutions"), which February Resolutions have not been
amended, modified or rescinded, and remain in full force and
effect.
(c) Attached hereto as Exhibit A-2 is a true, correct and
complete copy of the Minutes of Actions Taken in Writing
Without a Meeting by All of the Members of Banc One Mortgage
Capital Markets, LLC dated as of July 1, 1999, authorizing
(among other things) the amending of the name of the Company
to ORIX Real Estate Capital Markets, LLC, with the Company
continuing as a Delaware limited liability company under its
existing charter ("Members Resolutions"), which Members
Resolutions have not been amended, modified or rescinded and
remains in full force and effect. The effective date of such
name change in compliance with the Members Resolution is July
12, 1999.
(d) Attached hereto as Exhibit A-3 is a true, correct and
complete copy of the Limited Delegation of Authority dated as
of August 1, 2000, to Edgar L. Smith, II, Chief
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<PAGE> 690
Operating Officer, from James R. Thompson, Chief Executive
Officer and President of ORIX Real Estate Capital Markets,
LLC.
(e) The person set forth below is, as of the date hereof, a
duly elected officer of the Company authorized to act on
behalf of the Company in connection with the Resolutions, and
the signature set forth opposite his name is the genuine
signature of such person.
Office Name Signature
Chief Operating
Officer Edgar L. Smith, II ___________________________________
(f) Attached hereto as Exhibit B is a true, correct and
complete copy of the Limited Delegation of Authority (ORECM
Servicing) dated as of April 5, 2000, designating the
Servicing Officers of the Company, which Servicing/Special
Servicing Officer Designations has not been amended, modified
or rescinded and remains in full force and effect.
(g) Attached hereto as Exhibit C is a true, correct and
complete copy of the Amended and Restated Limited Liability
Company Agreement of ORIX Real Estate Capital Markets, LLC
dated as of July 12, 1999 (amending and restating that certain
Amended and Restated Limited Liability Company Agreement of
Banc One Mortgage Capital Markets, LLC dated as of March 31,
1997.)
(h) Attached hereto as Exhibits D, E, and F respectively are
true, correct and complete copies of the Certificate of
Formation of Banc One Mortgage Capital Markets, LLC dated as
of March 13, 1997; Certificate of Correction to Certificate of
Formation of Banc One Mortgage Capital Markets, LLC dated as
of March 14, 1997; and the State of Delaware Certificate of
Amendment of Banc One Mortgage Capital Markets, LLC dated as
of July 1, 1999, effective as of July 12, 1999, changing the
name of the Company to ORIX Real Estate Capital Markets, LLC,
with the Company continuing as a Delaware limited liability
company under its existing charter, none of which have been
amended, modified or rescinded and all of which remain in full
force and effect (except to the extent the Certificate of
Correction to Certificate of Formation of
D-1-2
<PAGE> 691
Banc One Mortgage Capital Markets, LLC revises the Certificate
of Formation of Banc One Mortgage Capital Markets, LLC and the
State of Delaware Certificate of Amendment of Banc One
Mortgage Capital Markets, LLC changes the name of the
Company.)
(i) Attached hereto as Exhibits G, H, and I are the
Certificate of Good Standing and Existence of the Office of
the Secretary of State of the State of Delaware, dated August
4, 2000; the Certificate of Authority of the Secretary of
State for the State of Texas dated August 4, 2000; and the
Certificate of Account Status from the Texas Comptroller of
Public Accounts dated August 4, 2000, each relating to ORIX
Real Estate Capital Markets, LLC.
D-1-3
<PAGE> 692
EXHIBIT D-2
FORM OF CERTIFICATE OF
OFFICER OF
ORIX REAL ESTATE CAPITAL MARKETS, LLC
I, the undersigned, Edgar L. Smith, II, hereby certify that I was
validly appointed to the office of, and am, the Chief Operating Officer of ORIX
Real Estate Capital Markets, LLC, a Delaware limited liability company, (the
"Company"), and do further certify as follows:
(1) The Amended and Restated Limited Liability Company Agreement of
ORIX Real Estate Capital Markets, LLC dated as of July 12, 1999 (amending and
restating that certain Amended and Restated Limited Liability Company Agreement
of Banc One Mortgage Capital Markets, LLC dated as of March 31, 1997), (the "LLC
Agreement") for the Company, is in full force and effect on this date, and
constitutes the complete agreement with respect to the LLC Agreement. The
Company is duly organized pursuant to the Certificate of Formation of Banc One
Mortgage Capital Markets, LLC dated as of March 13, 1997, for the Company, as
amended by the Certificate of Correction to Certificate of Formation of Banc One
Mortgage Capital Markets, LLC dated as of March 14, 1997 (collectively, the
"Certificate of Formation"), and as further amended by the State of Delaware
Certificate of Amendment of Banc One Mortgage Capital Markets, LLC dated as of
July 1, 1999, effective as of July 12, 1999, changing the name of the Company to
ORIX Real Estate Capital Markets, LLC, with the Company continuing as a Delaware
limited liability company under its existing charter, each of which has been
filed with the Secretary of State of the State of Delaware, and is in full force
and effect on this date.
(2) The Company has taken all organizational actions necessary to
authorize the execution and delivery of, and to perform all of the obligations
arising from or that relate to, that certain (i) Mortgage Loan Purchase
Agreement dated as of August 15, 2000 (the "Mortgage Loan Purchase Agreement"),
by and between ORIX Real Estate Capital Markets, LLC, as Seller, and Salomon
Brothers Mortgage Securities VII, Inc., as Purchaser, (ii) Indemnification
Agreement dated as of August 15, 2000, by and among ORIX Real Estate Capital
Markets, LLC, as Mortgage Loan Seller, Salomon Brothers Mortgage Securities VII,
Inc., as Depositor, PaineWebber Incorporated, Artesia Banking Corporation and
Chase Securities Inc., and (iii) Pooling and Servicing Agreement dated as of
August 1, 2000, by and among Salomon Brothers Mortgage Securities VII, Inc., as
Depositor, ORIX Real Estate Capital Markets, LLC, as Master Servicer and as
Special Servicer, and Wells Fargo Bank Minnesota, National Association, as
Trustee, relating to Salomon Brothers Mortgage Securities VII, Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-C2 (collectively, the
"Transaction Documents"). The Company has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part required
under the Mortgage Loan Purchase Agreement to be performed or satisfied at or
prior to the date hereof.
(3) Either (i) no approval, authorization, consent or order,
registration, filing, qualification, license or permit of, or with, any court or
governmental agency or body or third party is required for the consummation of
the transactions contemplated by the Transaction
D-1-1
<PAGE> 693
Documents, or the execution, delivery or performance of the Transaction
Documents by the Company, or (ii) any required consent, approval, authorization
or order has been obtained. The respective Transaction Documents are consistent
with the general policies of the Company as contemplated by the resolutions
adopted by the Company's Board of Managers.
(4) Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the respective Transaction Documents, conflicts
or will conflict with or results or will result in a breach of or constitutes or
will constitute a default of the Company under the Certificate of Formation, the
LLC Agreement, or, to the best of my knowledge, the terms of any indenture or
other agreements or instrument to which the Company is a party or by which it is
bound or to which it is subject, or any statute or order, rule, regulations,
writ, injunction or decree of any court, governmental authority or regulatory
body to which the Company is subject or by which it is bound.
(5) There is no action, suit, proceeding or investigation pending or,
to the best of my knowledge, threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial conditions,
properties or assets of the Company, or in any material impairment of the right
or ability of the Company to carry on its business substantially as now
conducted, or in any material liability on the part of the Company or which
would draw into question the validity of the respective Transaction Documents or
of any action taken or to be taken in connection with the transactions
contemplated thereby, or which would be likely to impair materially the ability
of the Company to perform under the terms of the respective Transaction
Documents.
(6) The representations and warranties of the Company contained in the
Transaction Documents are true and correct on the date hereof.
Dated as of August 24, 2000 ORIX Real Estate Capital Markets, LLC,
a Delaware limited liability company
By:___________________________________
Name: Edgar L. Smith, II
Title: Chief Operating Officer
D-1-2
<PAGE> 694
I, J. Russell Akin, Assistant Secretary of ORIX Real Estate Capital
Markets, LLC, hereby certify that Edgar L. Smith, II is the duly
appointed, qualified, and acting Chief Operating Officer of ORIX Real
Estate Capital Markets, LLC, that the signature appearing above is his
genuine signature, and that he is authorized to execute and deliver the
Transaction Document on behalf of the Company.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated as of August 24, 2000 ORIX Real Estate Capital Markets, LLC,
a Delaware limited liability company
By:___________________________________
Name: J. Russell Akin
Title: Assistant Secretary
_________________________________
D-1-3
<PAGE> 695
EXHIBIT D-3B
FORM OF OPINION OF AKIN, GUMP, STRAUSS, HAUER & FELD,
SPECIAL COUNSEL TO THE SELLER
August 24, 2000
Salomon Brothers Mortgage Securities PaineWebber, Incorporated
VII, Inc. 1285 Avenue of the Americas
388 Greenwich Street 38th Floor
New York, New York 10013 New York, New York 10019
Wells Fargo Bank Minnesota, N.A. Chase Securities Inc.
1100 Broken Land Parkway 450 West 33rd Street
Columbia, Maryland 21044-3562 14th Floor
New York, New York 10001
Fitch, Inc. Moody's Investor's Service, Inc.
One State Street Plaza 99 Church Street
New York, New York 10004 New York, New York 10007
Artesia Banking Corporation Salomon Smith Barney Inc.
1180 Northwest Maple Street, Suite 202 388 Greenwich Street
Issaquah, WA 98027 New York, New York 10013
Re: Salomon Brothers Mortgage Securities VII, Inc. Commercial Mortgage
Pass-Through Certificates, Series 2000-C2
Ladies and Gentlemen:
We have acted as special counsel for ORIX Real Estate Capital Markets,
LLC with respect to that certain Pooling and Servicing Agreement dated as of
August 1, 2000, among Salomon Brothers Mortgage Securities VII, Inc. as
Depositor, ORIX Real Estate Capital Markets, LLC, as Master Servicer and as
Special Servicer, and Wells Fargo Bank Minnesota, National Association, as
Trustee, relating to Salomon Brothers Mortgage Securities VII, Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-C2 (the "Agreement"), with
respect the Mortgage Loan Purchase Agreement dated as of August 15, 2000 between
ORIX Real Estate Capital Markets, LLC, as Seller, and Salomon Brothers Mortgage
Securities VII, Inc., as Purchaser (the "Mortgage Loan Purchase Agreement"), and
with respect to the Indemnification Agreement dated as of August 15, 2000, among
ORIX Real Estate Capital Markets, LLC, as Mortgage Loan Seller, Salomon Brothers
Mortgage Securities VII, Inc., as Depositor, Salomon Smith Barney Inc.,
PaineWebber Incorporated, Chase Securities Inc. and Artesia Banking Corporation
(the "Indemnification Agreement"; and the Agreement, the Mortgage Loan Purchase
Agreement and the Indemnification
D-1-1
<PAGE> 696
Agreement, collectively, the "Transaction Documents"). Capitalized terms used
herein and not otherwise defined shall have the meanings specified in the
Agreement.
This opinion letter is furnished pursuant to your request.
In our examination, we have assumed the genuineness of all signatures
(other than that of ORIX Real Estate Capital Markets, LLC), the legal capacity
of natural persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified or photostatic copies and the authenticity of the originals of such
copies. In making our examination of the documents executed by the parties
thereto, we have assumed that such parties (other than ORIX Real Estate Capital
Markets, LLC) had the power, corporate or otherwise, to enter into and perform
all of their respective obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and the execution and
delivery by such parties (other than ORIX Real Estate Capital Markets, LLC) of
such documents and the validity and binding effect thereof against such parties
(other than ORIX Real Estate Capital Markets, LLC). As to any facts material to
this opinion which we did not independently establish or verify, we have relied
upon statements and representations of officers and other representatives of
ORIX Real Estate Capital Markets, LLC. In addition, we have assumed that no
provision of the respective Transaction Documents violates any banking or
securities laws or regulations governing the activities of the parties other
than ORIX Real Estate Capital Markets, LLC.
For the purpose of rendering the opinions expressed in this opinion
letter, our review has been limited solely to originals or copies of the
following documents, and we have made no other investigation or inquiry:
(a) The Certificate of Formation of Banc One Mortgage
Capital Markets, LLC dated March 13, 1997; the
Certificate of Correction to Certificate of Formation
of Banc One Mortgage Capital Markets, LLC dated as of
March 14, 1997; the State of Delaware Certificate of
Amendment of Banc One Mortgage Capital Markets, LLC
dated as of July 1, 1999, effective as of July 12,
1999, changing the name of the company to ORIX Real
Estate Capital Markets, LLC, with the company
continuing as a Delaware limited liability company
under its existing charter; and the Amended and
Restated Limited Liability Company Agreement of ORIX
Real Estate Capital Markets, LLC dated as of July 12,
1999 (amending and restating that certain Amended and
Restated Limited Liability Company Agreement of Banc
One Mortgage Capital Markets, LLC dated as of March
31, 1997), all of which are filed with the Secretary
of State of Delaware, and the Limited Delegation of
Authority dated as of August 1, 2000, executed by
James R. Thompson, Chief Executive Officer and
President of ORIX Real Estate Capital Markets, LLC
(the "Constituent Documents");
(b) The Certificate of Officer of ORIX Real Estate
Capital Markets, LLC dated as of August 24, 2000,
attached hereto;
D-1-2
<PAGE> 697
(c) A copy of each of the Transaction Documents executed
on behalf of ORIX Real Estate Capital Markets, LLC,
which respective copies we have assumed conform to
the related originals executed by the other parties
to the respective Transaction Documents;
(d) A Certificate of Good Standing and Existence of the
Office of the Secretary of State of the State of
Delaware, dated August 4, 2000; the Certificate of
Authority of the Secretary of State of the State of
Texas, dated August 4, 2000, and the Certificate of
Account Status from the Texas Comptroller of Public
Accounting dated August 4, 2000, each relating to
ORIX Real Estate Capital Markets, LLC (the "Public
Authority Documents").
We express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York, the laws of the State of Texas with respect to
the opinions expressed in paragraphs (6) and (7)(i) below, the limited liability
company law of the State of Delaware, and the federal laws of the United States
of America.
We have not conducted any search of any public records nor made any
other inquiry concerning the existence of or state of title to any property
referenced in the respective Transaction Documents. We express no opinion as to
matters of title or priority of liens.
We have made no independent examination of the business, assets or
properties of ORIX Real Estate Capital Markets, LLC or corporate or partnership
records thereof (except with respect to copies of the Constituent Documents).
We have not been asked to render, and do not render, any opinion with
respect to the characterization of the nature of the transactions evidenced by
the Transaction Documents.
We have assumed that all right, title and interest in, to and under the
Mortgage Loans will be validly transferred to and vested in Wells Fargo Bank
Minnesota, National Association, as Trustee, as contemplated by the terms of the
Agreement.
We express no opinion as to the applicability of, or compliance with,
any provisions of the Internal Revenue Code of 1986, as amended.
Based upon and subject to the foregoing and the qualifications herein
set forth, we are of the opinion that:
(a) ORIX Real Estate Capital Markets, LLC is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware and is authorized to transact business in, and
is in good standing in, the State of Texas. In rendering this opinion, we have
relied exclusively on the Public Authority Documents and the Constituent
Documents.
D-1-3
<PAGE> 698
(b) ORIX Real Estate Capital Markets, LLC has full limited
liability company power and authority to own its properties and conduct its
business as presently being conducted by it and to execute, deliver, perform and
enter into, and to consummate all transactions and obligations contemplated by,
the respective Transaction Documents.
(c) ORIX Real Estate Capital Markets, LLC has duly authorized
by all necessary limited liability company action the execution, delivery and
performance of the respective Transaction Documents.
(d) The Transaction Documents have each been duly and validly
executed and delivered by ORIX Real Estate Capital Markets, LLC and each
constitutes the legal, valid and binding obligation of ORIX Real Estate Capital
Markets, LLC enforceable in accordance with its respective terms, subject to (a)
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(e) Execution and delivery by ORIX Real Estate Capital
Markets, LLC of, and performance of its agreements in, the respective
Transaction Documents do not violate ORIX Real Estate Capital Markets, LLC's
Constituent Documents.
(f) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by ORIX Real Estate Capital Markets, LLC of or compliance by ORIX
Real Estate Capital Markets, LLC with the terms of the respective Transaction
Documents, or the consummation of the transactions contemplated by the
respective Transaction Documents.
(g) Neither the consummation of the transactions contemplated
by, nor the execution, delivery and performance by ORIX Real Estate Capital
Markets, LLC or compliance by ORIX Real Estate Capital Markets, LLC with the
terms of the respective Transaction Documents, conflicts or will conflict with
or results or will result in a breach of or constitutes or will constitute a
default under: (i) any statute, rule or regulation; (ii) to our knowledge, the
terms of any indenture or other agreement or instrument to which ORIX Real
Estate Capital Markets, LLC is a party or by which it is bound or to which it is
subject, or (iii) any writ, injunction or decree, known to us, of any court,
governmental authority or regulatory body to which ORIX Real Estate Capital
Markets, LLC is subject or by which it is bound.
(h) To our knowledge, there is no action, suit, proceeding or
investigation pending or threatened which may result in any material adverse
change in the business, operations, financial conditions, properties or assets
of ORIX Real Estate Capital Markets, LLC or in any material impairment of the
right or ability of ORIX Real Estate Capital Markets, LLC to carry on its
business substantially as now conducted or in any material liability on the part
of ORIX Real Estate Capital Markets, LLC or which would draw into question the
validity of the respective Transaction Documents or of any action taken or to be
taken in connection with the
D-1-4
<PAGE> 699
transactions contemplated thereby, or which would be likely to impair materially
the ability of ORIX Real Estate Capital Markets, LLC to perform under the
respective terms of the respective Transaction Documents.
Solely for matters of fact, for purposes of the opinions expressed in
paragraphs (6), (7)(ii) and (iii) and (8) we have made inquiry of, and received
the Certificate of Officer of ORIX Real Estate Capital Markets, LLC from the
Chief Operating Officer and are relying on the Certificate of Officer of ORIX
Real Estate Capital Markets, LLC as to matters of fact. Our opinions expressed
in paragraphs (1) and (2) are based solely on the provisions of the Limited
Liability Company Act, Title 6, Chapter 18 of the Delaware Code, as amended, and
the Texas Limited Liability Company Act, Article 1528n of the Texas Revised
Civil Statutes, to the extent such act is applicable to ORIX Real Estate Capital
Markets, LLC as a foreign limited liability company, and are not based on the
review of any case law or judicial precedent of the State of Delaware, the State
of Texas or elsewhere.
All portions of this opinion letter which are limited to the extent of
our knowledge or to matters "known to us" or by words of similar import (i) are
limited to the actual knowledge of the pertinent facts possessed by the
attorneys in this firm who have given substantive legal attention to the
representation of ORIX Real Estate Capital Markets, LLC in connection with the
transactions contemplated by the respective Transaction Documents, or have
represented ORIX Real Estate Capital Market LLC in the past year, and, with your
consent, we have made no independent investigation or review of any such matter
for purposes of this opinion letter except to obtain the Certificate of Officer
of ORIX Real Estate Capital Markets, LLC, (ii) do not include constructive
knowledge or inquiry knowledge, and (iii) do not require or imply any
examination of the firm's files or that any inquiry be made of ORIX Real Estate
Capital Markets, LLC, any lawyer (other than the lawyers in this firm who have
rendered substantive attention to the transactions contemplated by the
respective Transaction Documents or have represented ORIX Real Estate Capital
Market LLC in the past year), or any other person.
The foregoing opinions, insofar as they relate to the legality,
validity, binding nature and enforceability of the respective Transaction
Documents are qualified to the extent that (a) no opinion is expressed as to the
enforceability of any indemnification provisions of any of the Transaction
Documents to the extent that any such provisions provide for indemnification
against, or contribution in respect of, securities law liabilities and (b)
certain remedial, waiver and similar provisions of the respective Transaction
Documents may be further limited or rendered unenforceable by applicable laws,
rules, regulations, statutes, administrative interpretations and judicial
decisions (collectively, the "Laws"), but in our opinion such Laws do not,
subject to the other qualifications contained herein, make the remedies
generally afforded by the respective Transaction Documents inadequate for the
practical realization of the material benefits purported to be provided by the
respective Transaction Documents, except for the economic consequences of
procedural or other delays. In addition, we have assumed that, to the extent
that any party to the respective Transaction Documents exercises its rights or
enforces any remedies under the respective Transaction Documents, it will do so
in good faith and in a commercially reasonable manner and that it will abide by
any implied covenant of good faith and fair dealing which may be imposed by any
of the Laws.
D-1-5
<PAGE> 700
No opinion may be inferred as to any matter other than as expressly
provided herein, and no opinion may be implied or inferred therefrom or from any
of the limitations, qualifications, and assumptions set forth herein.
Specifically, we express no opinion as to (a) the financial ability of ORIX Real
Estate Capital Markets, LLC to meet its obligations under the respective
Transaction Documents, (b) the truthfulness or accuracy of any reports,
documents, certificates or other matters furnished by ORIX Real Estate Capital
Markets, LLC to any person in connection with the respective Transaction
Documents, or (c) the truthfulness or accuracy of any representation or warranty
made by ORIX Real Estate Capital Markets, LLC.
This opinion is being furnished to you pursuant to your request
therefor and has been rendered to you on the condition that the opinions
expressed herein may not be published or otherwise communicated by you to any
other person without our specific prior written approval in each instance,
except that copies of this opinion may be distributed to the parties to the
transactions contemplated by the respective Transaction Documents.
Very truly yours,
AKIN, GUMP, STRAUSS,
HAUER & FELD, L.L.P.
D-1-6
<PAGE> 701
EXHIBIT N
SCHEDULE OF DESIGNATED SUB-SERVICERS
[SEE ATTACHED SCHEDULE]
N-1
<PAGE> 702
SCHEDULE OF MORTGAGE LOANS WITH RETAINED SUB-SERVICERS
<TABLE>
<CAPTION>
MORTGAGE
CONTROL LOAN LOAN
NUMBER NUMBER SELLER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY STATE
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 6603043 SBRC Northpointe Plaza 9604-10220 North Newport Highway Spokane WA
7 6602507 SBRC Metatec Building 7001 Metatec Boulevard Dublin OH
20 6603488 SBRC Fountain Oaks 3603-3697 West Waters Avenue Tampa FL
21 6603311 SBRC Park Central Office Development 6551-6601 Park Of Commerce Boulevard Boca Raton FL
25 6603150 SBRC St. Joseph Professional Building 2000 Crawford Street Houston TX
27 6603051 SBRC Airport Plaza Office Center - Phase 1 1754 Technology Drive San Jose CA
29 6602253 SBRC Hampton Inn - Columbus 4280 International Gateway Columbus OH
30 7000000 SBRC Comfort Suites Hotel 4270 Sawyer Road Columbus OH
31 6604495 SBRC Raintree Corporate Center - Phase I 15300 North 90th Street Scottsdale AZ
----------------------------------------------------------------------------------------------------------------------------------
32 6604157 SBRC For Eyes Optical Portfolio
32A 6604157A SBRC For Eyes Optical - Hialeah 285 West 74th Place Hialeah FL
32B 6604157B SBRC For Eyes Optical - Hialeah 2 7535 West 4th Avenue Hialeah FL
32C 6604157C SBRC For Eyes Optical - Philadelphia 2 1630 Walnut Street Philadelphia PA
32D 6604157D SBRC For Eyes Optical - Lauderhill 5251 North University Drive Lauderhill FL
32E 6604157E SBRC For Eyes Optical - Casselberry 3405 US Highway 17-92 South Casselberry FL
32F 6604157F SBRC For Eyes Optical - Coral Gables 3542-3544 Coral Way Miami FL
32G 6604157G SBRC For Eyes Optical - Richmond 8107-8111 Midlothian Turnpike Richmond VA
32H 6604157H SBRC For Eyes Optical - Rosemont 1213 Lancaster Avenue Rosemont PA
32I 6604157I SBRC For Eyes Optical - Philadelphia 2144 South Broad Street Philadelphia PA
----------------------------------------------------------------------------------------------------------------------------------
47 6604369 SBRC Sorrento Glen 11189 & 11199 Sorrento Valley Road San Diego CA
50 6603952 SBRC Gates Park Crossing Apartments 150 Peyton Place, S.W. Atlanta GA
57 6603590 SBRC Cambridge Village Apartments 12945 South Post Oak Road Houston TX
60 6603263 SBRC Pinon Trails Apartments 1501 Lomaland Drive El Paso TX
68 6603174 SBRC Balboa Palms Apartments 8441 Balboa Boulevard Northridge CA
69 6603178 SBRC Tarzana Palms Apartments 5725 Reseda Boulevard Los Angeles CA
73 6602817 SBRC Campbell Hill Apartments 308-330 Campbell Hill Road Bowling
Green OH
75 6603419 SBRC Lamar Crossing Shopping Center 3945-4045 Lamar Street Paris TX
79 6603491 SBRC Vacaville Town Center 741-791 East Monte Vista Avenue Vacaville CA
87 6603175 SBRC Independence Court Apartments 7255 Independence Avenue Canoga Park CA
95 6603246 SBRC Spartacus Apartments 4401 Spartacus Drive Huntsville AL
97 6603225 SBRC Village Place Shopping Center 7701-7739 West Bellfort Avenue Houston TX
102 6603238 SBRC Golden Sands Apartments 15930 Nisqualli Road Victorville CA
115 6603511 SBRC Crosstown Self Storage 950 Crosstown Drive Peachtree
City GA
176 6603177 SBRC Parthenia Garden Apartments 15455 Parthenia Street North Hills CA
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGINAL MORT- CUT-OFF
NUMBER NUMBER ZIP CODE BALANCE GAGE RATE NOTE DATE DATE BALANCE RETAINED PRIMARY SERVICER
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1 6603043 99218 31,700,000 7.8000% 08/13/99 31,483,555 LJ Melody & Company, Inc.
7 6602507 43017 19,000,000 8.2000% 07/28/99 18,874,391 Huntington Capital Corp.
20 6603488 33614 11,500,000 8.0600% 08/30/99 11,426,513 LJ Melody & Company, Inc.
21 6603311 33487 11,150,000 8.0300% 08/23/99 11,078,196 LJ Melody & Company, Inc.
25 6603150 77002 8,500,000 8.2500% 08/06/99 8,448,309 LJ Melody & Company, Inc.
27 6603051 95110 8,100,000 7.8500% 07/15/99 8,041,261 LJ Melody & Company, Inc.
29 6602253 43219 6,000,000 7.2600% 09/04/98 5,795,196 Huntington Capital Corp.
30 7000000 43219 2,080,000 7.2600% 09/04/98 2,009,001 Huntington Capital Corp.
31 6604495 85260 7,300,000 8.5300% 01/07/00 7,276,618 LJ Melody & Company, Inc.
-----------------------------------------------------------------------------------------------------------------------------------
32 6604157 6,950,000 8.9300% 02/29/00 6,935,696 GMAC Commercial Mortgage Corp.
32A 6604157A 33014
32B 6604157B 33014
32C 6604157C 19103
32D 6604157D 33351
32E 6604157E 32707
32F 6604157F 33145
32G 6604157G 23235
32H 6604157H 19010
32I 6604157I 19145
-----------------------------------------------------------------------------------------------------------------------------------
47 6604369 92121 5,425,000 8.4100% 03/20/00 5,414,017 Holliday Fenoglio Fowler, L.P.
50 6603952 30311 5,250,000 8.2800% 10/14/99 5,224,150 Financial Federal Savings Bank
57 6603590 77045 4,965,000 8.0200% 09/10/99 4,936,494 LJ Melody & Company, Inc.
60 6603263 79935 4,300,000 7.9400% 08/25/99 4,271,663 LJ Melody & Company, Inc.
68 6603174 91325 2,000,000 7.8300% 12/09/99 1,991,407 LJ Melody & Company, Inc.
69 6603178 91356 1,680,000 7.8300% 12/09/99 1,672,782 LJ Melody & Company, Inc.
73 6602817 43402 3,570,000 8.4300% 10/27/99 3,553,108 Huntington Capital Corp.
75 6603419 75462 3,330,000 8.5100% 11/03/99 3,316,711 Financial Federal Savings Bank
79 6603491 95688 3,185,000 8.0400% 08/17/99 3,164,542 Ward Cook
87 6603175 91303 2,800,000 7.8300% 12/09/99 2,787,969 LJ Melody & Company, Inc.
95 6603246 35805 2,640,000 7.4900% 06/01/99 2,617,493 Financial Federal Savings Bank
97 6603225 77071 2,596,528 (@) 8.1500% 05/21/99 2,579,991 Holliday Fenoglio Fowler, L.P.
102 6603238 92392 2,500,000 7.4200% 05/14/99 2,476,260 LJ Melody & Company, Inc.
115 6603511 30269 2,000,000 8.4300% 07/30/99 1,978,457 Financial Federal Savings Bank
176 6603177 91343 1,000,000 7.8300% 12/09/99 995,703 LJ Melody & Company, Inc.
</TABLE>
N-1
