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MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of September 21,
2000 (the "Agreement"), between UBS Principal Finance LLC (together with its
successors and permitted assigns hereunder, the "Seller") and Structured Asset
Securities Corporation (together with its successors and permitted assigns
hereunder, the "Purchaser").
The Seller intends to sell and the Purchaser intends to
purchase certain multifamily and commercial mortgage loans (the "Mortgage
Loans") as provided herein. The Purchaser intends to deposit the Mortgage Loans,
together with certain other multifamily and commercial mortgage loans (the
"Other Loans"; and, together with the Mortgage Loans, the "Securitized Loans"),
into a trust fund (the "Trust Fund"), the beneficial ownership of which will be
evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to the Trust Fund. The
Trust Fund will be created and the Certificates will be issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), to be
dated as of September 11, 2000, among the Purchaser as depositor, ORIX Real
Estate Capital Markets LLC as master servicer and as special servicer (the
"Master Servicer" and the "Special Servicer", respectively), LaSalle Bank
National Association as trustee (the "Trustee") and ABN AMRO Bank N.V. as fiscal
agent (the "Fiscal Agent"). Capitalized terms used but not defined herein have
the respective meanings set forth in the Pooling and Servicing Agreement, as in
effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Lehman Brothers
Inc. ("Lehman"), UBS Warburg LLC ("UBSW") and Deutsche Bank Securities Inc.
(collectively in such capacity, the "Underwriters"), whereby the Purchaser will
sell to the Underwriters all of the Certificates that are to be registered under
the Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of the date hereof, with Lehman and UBSW (together in such
capacity, the "Placement Agents"), whereby the Purchaser will sell to the
Placement Agents all of the remaining Certificates (other than the Residual
Interest Certificates).
In connection with the transactions contemplated hereby, the
Seller, UBS (USA), Inc. (the "Co-Indemnitor"), the Purchaser, the Underwriters
and the Placement Agent have entered into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of the date hereof.
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, and the Purchaser
agrees to purchase, the Mortgage Loans identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Exhibit A. The Mortgage Loan Schedule may be
amended to reflect the actual Mortgage Loans accepted by the Purchaser pursuant
to the terms hereof. The Mortgage Loans
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will have an aggregate principal balance of $331,704,226.06 (the "Initial Pool
Balance") as of the close of business on September 11, 2000 (the "Cut-off
Date"), after giving effect to any and all payments of principal due thereon on
or before such date, whether or not received. The purchase and sale of the
Mortgage Loans shall take place on September 28, 2000 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). The
consideration for the Mortgage Loans shall consist of: (A) a cash amount equal
to _____% of the Initial Pool Balance, plus interest accrued on each Mortgage
Loan at the related Net Mortgage Rate, for the period from and including the
Cut-off Date up to but not including the Closing Date, which cash amount shall
be paid to the Seller or its designee by wire transfer in immediately available
funds (or by such other method as shall be mutually acceptable to the parties
hereto) on the Closing Date; and (B) Certificates representing a 33.202%
Percentage Interest in each Class of Residual Interest Certificates (such
Certificates, the "Seller's Residual Interest Certificates").
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 5 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, 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 (other than the
primary servicing rights). The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of the
initial Purchaser, deliver to and deposit with the Trustee a Mortgage File for
each Mortgage Loan in accordance with the terms of, and conforming to the
requirements set forth in, the Pooling and Servicing Agreement. Concurrently
with such delivery, the Seller shall deliver copies of the Mortgage Note,
Mortgage(s) and any reserve and cash management agreements with respect to each
Mortgage Loan to the Master Servicer and the Special Servicer.
(d) The Seller shall, through an Independent third party (the
"Recording/Filing Agent") retained by it, as and when provided in the Pooling
and Servicing Agreement, cause each assignment of Mortgage, each assignment of
Assignment of Leases and each UCC-2 and UCC-3, in favor of, and delivered as
part of the related Mortgage File to, the Trustee, to be submitted for
recordation or filing, as the case may be, in the appropriate public office for
real property records or Uniform Commercial Code financing statements, as
appropriate. If any such document or instrument is lost or returned unrecorded
or unfiled, as the case may be, because of a defect therein, then the Seller
shall prepare a substitute therefor or cure such defect or cause such to be
done, as the case may be, and the Seller shall deliver such substitute or
corrected document or instrument to the Trustee (or, if the Mortgage Loan is
then
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no longer subject to the Pooling and Servicing Agreement, to the then holder of
such Mortgage Loan). In addition, if within a reasonable period following the
Closing Date, any of the assignments of Mortgage, assignments of Assignment of
Leases or UCC Financing Statements in favor of the Trustee referred to above
have not been submitted for recording or filing, as applicable, the Mortgage
Loan Seller shall cause any such unrecorded or unfiled document to be delivered
to the Trustee for recording or filing, as applicable, and the Mortgage Loan
Seller shall request the Trustee to promptly undertake to record or file any
such document upon its receipt thereof. On or before the Closing Date, the
Seller shall provide the Purchaser and its designees (which include the Trustee,
the Master Servicer and the Special Servicer) with one or more limited powers of
attorney, as appropriate, to enable them to record any Mortgage Loan documents
that, as contemplated by Section 2.01(c) of, or the definition of "Mortgage
File" in, the Pooling and Servicing Agreement, are to be, but have not been,
recorded.
The Mortgage Loan Seller shall bear the reasonable out-of-pocket costs
and expenses of all such recording and filing contemplated by the preceding
paragraph. In connection therewith, on or before the Closing Date, the Seller
shall deposit with the Recording/Filing Agent (which may be the Trustee and/or
the Master Servicer) a cash amount equal to the product of $________ times the
number of Mortgage Loans (the "Recording/Filing Reserve Funds") delivered
hereunder on the Closing Date, which cash amount is to be applied toward the
recording and filing of assignments and other instruments of transfer with
respect to such Mortgage Loans, as contemplated herein and in the Pooling and
Servicing Agreement. Until the completion of all recording and filing of all
assignments and other instruments of transfer with respect to all the Mortgage
Loans delivered hereunder on the Closing Date, as contemplated herein and in the
Pooling and Servicing Agreement, the Seller shall not be entitled to
reimbursement of any portion of the total Reserve/Recording Reserve Funds not
otherwise needed to reimburse the Recording/Filing Agent for all out-of-pocket
costs and expenses reasonably incurred by or on behalf of such Persons in
connection with such recording and filing.
(e) All documents and records relating to the Mortgage Loans and in the
Seller's possession or under its control (the "Additional Mortgage Loan
Documents") that are not required to be delivered to the Trustee, together with
all unapplied Escrow Payments and Reserve Funds in the possession or under the
control of the Seller that relate to the Mortgage Loans and a statement
indicating which Escrow Payments and Reserve Funds are allocable to each
Mortgage Loan, shall be delivered or caused to be delivered by the Seller to the
Master Servicer (or, at the direction of the Master Servicer, to the appropriate
sub-servicer).
(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.
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SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
(i) The Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware and possesses all requisite authority, power, licenses,
permits and franchises to carry on its business as currently conducted
by it and to execute, deliver and comply with its obligations under the
terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforcement may be
limited by (A) bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws affecting the enforcement of
creditors' rights in general, and (B) general equity principles
(regardless of whether such enforcement is considered in a proceeding
in equity or at law).
(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of
this Agreement will not (A) violate the Seller's organizational
documents, (B) violate any law or regulation or any administrative
decree or order to which the Seller is subject or (C) 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 contract, agreement or other instrument to which the Seller is
a party or by which the Seller is bound.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default
might have consequences that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the condition
(financial or other) or operations of the Seller or its properties or
have consequences that would materially and adversely affect its
performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any organizational document or any other
limited liability company restriction or any judgment, order, writ,
injunction, decree, law or regulation that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
ability of the Seller to perform its obligations under this Agreement
or that requires the consent of any third person to the execution and
delivery of this Agreement by the Seller or the performance by the
Seller of its obligations under this Agreement.
(vi) Except for the recordation and/or filing of assignments
and other transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d), no consent, approval, authorization or
order of, registration or filing with, or notice to, any court or
governmental agency or body, is required for the execution, delivery
and
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performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's
good faith and reasonable judgment, prohibit its entering into this
Agreement or materially and adversely affect the performance by the
Seller of its obligations under this Agreement.
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the
transfer of the Mortgage Loans to the Purchaser, as provided herein, as
a sale of the Mortgage Loans to the Purchaser in exchange for the
consideration specified in Section 1 hereof. In connection with the
foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan). The consideration
received by the Seller upon the sale of the Mortgage Loans to the
Purchaser will constitute reasonably equivalent value and fair
consideration for the Mortgage Loans. The Seller will be solvent at all
relevant times prior to, and will not be rendered insolvent by, the
sale of the Mortgage Loans to the Purchaser. The Seller is not selling
the Mortgage Loans to the Purchaser with any intent to hinder, delay or
defraud any of the creditors of the Seller. 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. The Mortgage Loans do not constitute all or
substantially all of the assets of the Seller. 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.
(ix) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller are pending or contemplated.
(x) The Seller will acquire the Seller's Residual Interest
Certificates for its own account and not with a view to, or sale or
transfer in connection with, any distribution thereof, in whole or in
part, in any manner that would violate the Securities Act or any
applicable state securities laws; provided that an Affiliate of the
Seller has entered into an agreement that provides for the merger of
Paine Webber Group Inc. into such Affiliate, subject to the
satisfaction of various conditions.
(xi) The Seller understands that (A) the Seller's Residual
Interest 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 Purchaser nor any other party is
obligated so to register or qualify the Seller's Residual Interest
Certificates and (C) neither the Seller's Residual Interest
Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold or transferred unless it is (1) registered
pursuant to the Securities Act and registered or qualified pursuant to
any applicable state securities laws or (2) sold or transferred in a
transaction which is exempt from such
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registration and qualification and the Certificate Registrar has
received the certifications and/or opinions of counsel required by the
Pooling and Servicing Agreement.
(xii) The Seller understands that it may not sell or otherwise
transfer the Seller's Residual Interest 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 or, as of
the Closing Date, will have carefully reviewed, and that the Seller's
Residual Interest Certificates will bear legends that identify the
transfer restrictions to which such Certificates are subject.
(xiii) Neither the Seller nor anyone acting on its behalf has
(A) offered, transferred, pledged, sold or otherwise disposed of any
Seller's Residual Interest Certificate, any interest in a Seller's
Residual Interest 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 Seller's Residual Interest
Certificate, any interest in a Seller's Residual Interest Certificate
or any other similar security from any person in any manner, (C)
otherwise approached or negotiated with respect to any Seller's
Residual Interest Certificate, any interest in a Seller's Residual
Interest 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 Seller's Residual
Interest Certificates under the Securities Act, would render the
disposition of the Seller's Residual Interest Certificates a violation
of Section 5 of the Securities Act or any state securities law or would
require registration or qualification of the Seller's Residual Interest
Certificates pursuant thereto. The Seller 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 Seller's Residual
Interest Certificates, any interest in the Seller's Residual Interest
Certificates or any other similar security.
(xiv) The Seller has been furnished with all information
regarding (A) the Purchaser, (B) the Seller's Residual Interest
Certificates and distributions thereon, (C) the nature, performance and
servicing of the Other Loans, (D) the Pooling and Servicing Agreement
and the Trust Fund, and (E) all related matters, that it has requested.
(xv) The Seller 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 Seller's Residual Interest Certificates; the
Seller has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision; and the
Seller is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
(xvi) The Seller is not a Plan and is not directly or
indirectly acquiring the Seller's Residual Interest Certificates on
behalf of, as named fiduciary of, as trustee of or with assets of a
Plan.
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(xvii) The Seller is not a Disqualified Organization.
(xviii) The Seller's sole member is UBS AG; under Treasury
Regulation Section 301.7701-3, the Seller is treated, solely for United
States federal income tax purposes, as a branch of UBS AG; UBS AG is
foreign corporation within the meaning of Section 7701(a)(5) of the
Internal Revenue Code of 1986 (the "Code"); for purposes of Treasury
Regulation Section 1.860G-3(a)(3), UBS AG's income from the Seller's
Residual Interest Certificates is subject to tax under Section 882 of
the Code; for purposes of Treasury Regulation Section
1.860E-1(c)(4)(ii), UBS AG understands that, as holder of the Seller's
Residual Interest Certificates for United States federal income tax
purposes, UBS AG may incur tax liabilities in excess of any cash flows
generated by the Seller's Residual Interest Certificates and that UBS
AG intends to pay taxes associated with holding the Seller's Residual
Interest Certificates. UBS AG shall provide to the Trustee, on or
before the Closing Date, an effective and duly executed IRS Form
W-8ECI, and to update such form as required under applicable Treasury
Regulations.
(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such other date
expressly set forth therein, each of the representations and warranties set
forth on Exhibit B hereto.
SECTION 4. Representations and Warranties of the Purchaser. In order to induce
the Seller to enter into this Agreement, the Purchaser hereby represents and
warrants for the benefit of the Seller as of the date hereof that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
The Purchaser has the full corporate power and authority and legal
right to acquire the Mortgage Loans from the Seller and to transfer the
Mortgage Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser and, assuming due
authorization, execution and delivery hereof by the Seller, constitutes
a legal, valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such
enforcement may be limited by (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
affecting the enforcement of creditors' rights in general, and (B)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms
of this Agreement will not (A) violate the Purchaser's organizational
documents, (B) violate any law or regulation or any administrative
decree or order to which the Purchaser is subject or (C) 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 contract, agreement or other instrument to which the Purchaser
is a party or by which the Purchaser is bound.
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(iv) Except as may be required under federal or state
securities laws (and which will be obtained on a timely basis), no
consent, approval, authorization or order of, registration or filing
with, or notice to, any governmental authority or court, is required
for the execution, delivery and performance by the Purchaser of or
compliance by the Purchaser with this Agreement, or the consummation by
the Purchaser of any transaction described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the Seller
to the Purchaser, as provided herein, as a sale of the Mortgage Loans
to the Purchaser in exchange for the consideration specified in Section
1 hereof.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller discovers or receives notice of a Document Defect or a breach
of any of its representations and warranties made pursuant to Section 3(b)
hereof (each such breach, a "Breach") relating to any Mortgage Loan, and such
Document Defect or Breach materially and adversely affects the interests of the
Purchaser in, or the value of, such Mortgage Loan (in which case any such
Document Defect or Breach would be a "Material Document Defect" or a "Material
Breach", as the case may be), then the Seller shall within, 90 days after its
discovery or receipt of notice of such Material Document Defect or Material
Breach (such 90-day period, the "Initial Resolution Period") (or, in the case of
a Material Document Defect or Material Breach relating to a Mortgage Loan not
being a "qualified mortgage" within the meaning of the REMIC Provisions, not
later than 90 days of any party discovering such Material Document Defect or
Material Breach), (i) cure such Material Document Defect or Material Breach, as
the case may be, in all material respects, which cure shall include payment of
any Additional Trust Fund Expenses associated therewith, or (ii) repurchase the
affected Mortgage Loan (or the related Mortgaged Property) from, and in
accordance with the directions of, the Purchaser or its designee, at a price
equal to the Purchase Price; provided that if (i) any such Material Breach or
Material Document Defect, as the case may be, does not relate to whether the
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 the applicable Initial Resolution Period, (iii) the
Seller has commenced and is diligently proceeding with the cure of such Material
Breach or Material Document Defect, as the case may be, within the applicable
Initial Resolution Period, and (iv) the Seller shall have delivered to the
Purchaser a certification executed on behalf of the Seller by an officer thereof
setting forth the reason that such Material Breach or Material Document Defect,
as the case may be, is not capable of being cured within the applicable Initial
Resolution Period and what actions the Seller is pursuing in 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 the applicable Resolution Extension Period (as
defined below), then the Seller shall have an additional period equal to the
applicable Resolution Extension Period to complete such cure or, failing such,
to repurchase the affected Mortgage Loan (or the related Mortgage Property). Any
such repurchase of a 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
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of a Breach or Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser. Without limiting any of the foregoing, (A) the absence of an original
Mortgage Note, an original or a copy of a Mortgage (with or without evidence of
recording thereon), an original or a copy of a lender's title insurance policy,
an Assignment of Leases (with or without evidence of recording thereon, but only
if separate from the related Mortgage) or, in the case of a Mortgage Loan
secured by a hospitality or healthcare property, a filed UCC-1 financing
statement from a Mortgage File or (B) any material adverse nonconformity to the
Mortgage Loan Schedule of any such document or any material irregularity on the
face thereof (without the presence of a factor, such as a lost note affidavit
(in the case of a missing Mortgage Note) or 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 title policy), that in the Trustee's
reasonable and good faith judgment mitigates the subject absence, nonconformity
or irregularity) shall be a Material Document Defect. Notwithstanding anything
herein to the contrary, if a Mortgage Loan is not secured by a hospitality or
healthcare property, then failure to file a UCC Financing Statement covering the
Borrower's personalty at such Mortgaged Property would not be a Material
Document Defect.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a Material Breach with
respect to any Mortgage Loan, the 90-day period
following the end of the applicable Initial
Resolution Period;
(b) for purposes of remediating a Material Document
Defect with respect to any Mortgage Loan that is not
a Specially Serviced Mortgage Loan as of the
commencement of the Initial Resolution period and as
to which a Servicing Transfer Event has not occurred
throughout the applicable Initial Resolution Period,
the period commencing at the end of the applicable
Initial Resolution Period and ending on, and
including, the earlier of (i) the 90th day following
the end of such Initial Resolution Period and (ii)
the 45th day following the Seller's receipt of
written notice from the Purchaser or its designee of
the occurrence of any Servicing Transfer Event with
respect to such Mortgage Loan subsequent to the end
of such Initial Resolution Period;
(c) for purposes of remediating a Material Document
Defect with respect to any Mortgage Loan that is not
a Specially Serviced Mortgage Loan as of the
commencement of the applicable Initial Resolution
Period, but as to which a Servicing Transfer Event
occurs during such Initial Resolution Period, the
period commencing at the end of the applicable
Initial Resolution Period and ending on, and
including, the 90th day following the earlier of (i)
the end of such Initial Resolution Period and (ii)
the Seller's receipt of written notice from the
Purchaser or its designee of the occurrence of such
Servicing Transfer Event; and
(d) for purposes of remediating a Material Document
Defect with respect to any Mortgage Loan that is a
Specially Serviced Mortgage Loan as of the
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commencement of the applicable Initial Resolution
Period, zero (-0-) days, provided that, if the Seller
did not receive written notice from the Purchaser or
its designee of the relevant Servicing Transfer Event
as of the commencement of the applicable Initial
Resolution Period, then such Servicing Transfer Event
will be deemed to have occurred during such Initial
Resolution Period and clause (c) of this definition
will be deemed to apply.
If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Seller as
contemplated by this Section 5(a), then, prior to the subject repurchase, the
Purchaser or its designee shall use reasonable efforts, subject to the terms of
the related Mortgage Loans, to prepare and, to the extent necessary and
appropriate, have executed by the related Mortgagor and record, such
documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loans therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that, if such Cross-Collateralized Group is
still subject to the Pooling and Servicing Agreement, then no such termination
shall be effected unless and until (i) the Purchaser or its designee has
received from the Seller (A) an Opinion of Counsel to the effect that such
termination will not cause an Adverse REMIC Event to occur with respect to any
REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust
and (B) written confirmation from each Rating Agency that such termination will
not cause an Adverse Rating Event to occur with respect to any Class of
Certificates and (ii) the Controlling Class Representative has consented (which
consent shall not be unreasonably withheld); and provided, further, that the
Seller may, at its option, purchase the entire Cross-Collateralized Group in
lieu of terminating the cross-collateralization. All costs and expenses incurred
by the Purchaser or its designee pursuant to this paragraph shall be included in
the calculation of Purchase Price for the Mortgage Loan(s) to be repurchased. If
the cross-collateralization of any Cross-Collateralized Group cannot be
terminated as contemplated by this paragraph, then, for purposes of (i)
determining whether any Breach or Document Defect, as the case may be,
materially and adversely affects the interests of the Purchaser in, or the value
of, any Mortgage Loan, and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
It shall be a condition to any repurchase of a Mortgage Loan
by the Seller pursuant to this Section 5(a) that 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 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. If any Mortgage Loan is to be
repurchased as contemplated by this Section 5(a), the Seller shall amend the
Mortgage Loan Schedule to reflect the removal of such Mortgage Loan and shall
forward such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller
set forth in this Section 5(a) to cure any Material Breach or Material Document
Defect or to repurchase such
10
<PAGE>
Mortgage Loan, constitute the sole remedies available to the Purchaser with
respect to any Breach or Document Defect.
(b) If the Purchaser has identified as of January 28, 2002 one
or more conditions that will become Recording/Title Policy Omissions with
respect to any Mortgage Loan on March 28, 2002, if not earlier corrected, the
Purchaser or one of its designees shall, on or about January 28, 2002 (or, if
such day is not a Business Day, the first Business Day thereafter), provide
written notification of such conditions that could become Recording/Title Policy
Omissions to the Seller. On the later of March 28, 2002 and 60 days following
delivery of the notice contemplated by the prior sentence, the Purchaser may, in
its sole discretion, require the Seller to (and, at the direction of the
Purchaser or its designee, the Seller shall) establish with or deliver to, as
applicable, the Purchaser or its designee, with respect to each Mortgage Loan as
to which there then exists a Recording/Title Policy Omission, a cash reserve (a
"Recording/Title Policy Omission Cash Deposit") or a letter of credit (a
"Recording/Title Policy Omission Credit") in an amount equal to 10% of the then
outstanding principal balance of such Mortgage Loan. If, as of September 28,
2002, a Recording/Title Policy Omission still exists with respect to any
Mortgage Loan that is then subject to the Pooling and Servicing Agreement, the
Purchaser may, in its sole discretion, require the Seller to (and, at the
direction of the Purchaser or its designee, the Seller shall) increase the
amount of the Recording/Title Policy Omission Cash Deposit or the
Recording/Title Policy Omission Credit, as applicable, maintained with the
Purchaser or its designee with respect to such Mortgage Loan, such increase to
be in an amount equal to 10% of the then outstanding principal balance of such
Mortgage Loan. In furtherance of the two preceding sentences, the Purchaser or
its designee shall establish one or more accounts (individually and
collectively, the "Special Reserve Accounts"), each of which shall be an
Eligible Account, and the Purchaser or its designee shall deposit any funds
constituting all or part of a Recording/Title Policy Omission Cash Deposit into
the Special Reserve Account within one Business Day of receipt. The Seller may
direct the Purchaser or its designee to invest or cause the investment of the
funds deposited in the Special Reserve Account in one or more Permitted
Investments that bear interest or are sold at a discount and that mature, unless
payable on demand, no later than the Business Day prior to the next Master
Servicer Remittance Date. The Purchaser or its designee shall act upon the
written instructions of the Seller with respect to the investment of funds in
the Special Reserve Account in such Permitted Investments, provided that in the
absence of appropriate written instructions from the Seller, the Purchaser or
its designee shall have no obligation to invest or direct the investment of
funds in such Special Reserve Account. All income and gain realized from the
investment of funds deposited in such Special Reserve Account shall be for the
benefit of the Seller and shall be withdrawn by the Purchaser or its designee
and remitted to the Seller on each Master Servicer Remittance Date (net of any
losses incurred), and the Seller shall remit to the Purchaser or its designee
from the Seller's own funds for deposit into such Special Reserve Account the
amount of any realized losses (net of realized gains) in respect of such
Permitted Investments immediately upon realization of such net losses and
receipt of written notice thereof from the Purchaser or its designee ; provided
that the Seller shall not be required to make any such deposit for any realized
loss which is incurred solely as a result of the insolvency of the federal or
state depository institution or trust company that holds such Special Reserve
Account. Neither the Purchaser nor any of its designees shall have any
responsibility or liability with respect to the investment directions of the
Seller, the investment of funds in the Special Reserve Account in Permitted
Investments or any losses resulting therefrom. A Recording/Title Policy Omission
Credit shall (i) entitle the Purchaser or
11
<PAGE>
its designee to draw upon the Recording/Title Policy Omission Credit on behalf
of the Purchaser upon presentation of only a sight draft or other written demand
for payment, (ii) permit multiple draws by the Purchaser or its designee, and
(iii) be issued by such issuer and containing such other terms as the Purchaser
or its designee may reasonably require to make such Recording/Title Policy
Omission Credit reasonably equivalent security to a Recording/Title Policy
Omission Cash Deposit in the same amount. Once a Recording/Title Policy Omission
Cash Deposit or Recording/Title Policy Omission Credit is established with
respect to any Mortgage Loan, the Purchaser or its designee shall, from time to
time, withdraw funds from the related Special Reserve Account or draw upon the
related Recording/Title Policy Omission Credit, as the case may be, and apply
the proceeds thereof to pay the losses or expenses directly incurred by the
Purchaser or its designee as a result of a Recording/Title Policy Omission in
respect of such Mortgage Loan. The Recording/Title Policy Omission Cash Deposit
or Recording/Title Policy Omission Credit or any unused balance thereof with
respect to each Mortgage Loan will be released to the Seller by the Purchaser or
its designee upon the earlier of the Seller's cure of all Recording/Title Policy
Omissions with respect to such Mortgage Loan (provided that the Purchaser has
been reimbursed with respect to all losses and expenses relating to
Recording/Title Policy Omissions with respect to such Mortgage Loan) or such
Mortgage Loan no longer being a part of the Trust Fund under the Pooling and
Servicing Agreement. The rights to require and apply the proceeds of a
Recording/Title Policy Omission Cash Deposit or Recording/Title Policy Omission
Credit with respect to a Mortgage Loan under this Section 5(b) are in addition
to the rights afforded with respect to a Breach or Document Defect under Section
5(a), and the exercise of rights with respect to a Mortgage Loan under this
Section 5(b) shall not preclude or otherwise limit the exercise of rights
afforded with respect to a Breach or Document Defect under Section 5(a) or
constitute a waiver thereof.
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
set forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement, and
all of the representations and warranties of the Purchaser set forth in Section
4 of this Agreement, shall be true and correct in all material respects as of
the Closing Date;
(b) Insofar as it affects the obligations of the Seller
hereunder, the Pooling and Servicing Agreement shall be in a form mutually
acceptable to the Purchaser and the Seller;
(c) All documents specified in Section 7 of this Agreement
(the "Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the
Trustee (or a Custodian on its behalf), the Master Servicer and the Special
Servicer all documents and funds required to be delivered to the Trustee, the
Master Servicer and the Special Servicer, respectively, pursuant to Section 2 of
this Agreement;
12
<PAGE>
(e) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been complied with
in all material respects and 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;
(f) The Seller shall have paid all fees and expenses payable
by it to the Purchaser or otherwise pursuant to this Agreement; and
(g) 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 by the Purchaser and the
Seller;
(b) The Pooling and Servicing Agreement duly executed by the
parties thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) A Certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Placement Agents may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement and in the
Indemnification Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on such date; and (ii)
the Seller has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part that are required under this Agreement
to be performed or satisfied at or prior to the Closing Date;
(e) An Officer's Certificate from an officer of the Seller, in
his or her individual capacity, dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Placement Agents may rely, to the effect
that each individual who, as an officer or representative of the Seller, signed
this Agreement, the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein or in the Indemnification Agreement, 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 signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(f) As certified by an officer of the Seller, true and correct
copies of (i) the resolutions of the board of directors authorizing the Seller's
entering into the transactions contemplated by this Agreement and in the
Indemnification Agreement, (ii) the organizational documents of the Seller, and
(iii) a certificate of good standing of the Seller issued by the Secretary of
State of the State of Delaware not earlier than 10 days prior to the Closing
Date;
13
<PAGE>
(g) A Certificate of the Co-Indemnitor, executed by a duly
authorized officer of the Co-Indemnitor and dated the Closing Date, and upon
which the Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that the representations and warranties of the Co-Indemnitor in the
Indemnification Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on such date;
(h) An Officer's Certificate from an officer of the
Co-Indemnitor, in his or her individual capacity, dated the Closing Date, and
upon which the Purchaser, the Underwriters and the Placement Agents may rely, to
the effect that each individual who, as an officer or representative of the
Co-Indemnitor, signed the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated therein, 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 signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(i) As certified by an officer of the Co-Indemnitor, true and
correct copies of (i) the resolutions of the board of directors authorizing the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the Co-Indemnitor
issued by the Secretary of State of the State of Delaware not earlier than 10
days prior to the Closing Date;
(j) A favorable opinion of Cadwalader, Wickersham & Taft,
special counsel to the Seller and the Co-Indemnitor, substantially in the form
attached hereto as Exhibit C-1, dated the Closing Date and addressed to the
Purchaser, the Underwriters, the Placement Agents, the Rating Agencies and, upon
request, the other parties to the Pooling and Servicing Agreement, together with
such other opinions of Cadwalader, Wickersham & Taft as may be required by the
Rating Agencies in connection with the transactions contemplated hereby;
(k) A favorable opinion of in-house counsel to the Seller and
the Co-Indemnitor, substantially in the form attached hereto as Exhibit C-2,
dated the Closing Date and addressed to the Purchaser, the Underwriters, the
Placement Agents, the Rating Agencies and, upon request, the other parties to
the Pooling and Servicing Agreement;
(l) In connection with the Seller's receipt of the Seller's
Residual Interest Certificates, a Transfer Affidavit and Agreement in the form
contemplated by the Pooling and Servicing Agreement; and
(m) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 8. Costs. __% of all reasonable out-of-pocket costs and expenses
incurred by the Seller, the Purchaser, the Underwriters, the Placement Agents
and the seller of the Other Loans to the Purchaser in connection with the
securitization of the Securitized Loans and the other transactions contemplated
by this Agreement, the Underwriting Agreement and the Certificate Purchase
Agreement shall be payable by the Seller.
14
<PAGE>
SECTION 9. Grant of a Security Interest. The parties hereto agree that it is
their express intent that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then
it is the express intent of the parties that: (i) such conveyance shall be
deemed to be a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller; (ii) this Agreement shall be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
New York Uniform Commercial Code; (iii) the conveyance provided for in Section 2
hereof shall be deemed to be a grant by the Seller to the Purchaser of a
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 of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property; (iv) the assignment to the Trustee of the interest of the Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of any security
interest created hereunder; (v) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes for
the Mortgage Loans, 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 (vi) notifications
to persons (other than the Trustee) holding such property, and acknowledgments,
receipts or confirmations from such persons holding such property, shall be
deemed notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the secured party
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 10. Notices. All notices, copies, requests, consents, demands and other
communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
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 (and by the Purchaser to the Trustee).
15
<PAGE>
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 an original, but which together shall
constitute one and the same agreement.
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 (WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES). THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to execute
and deliver such instruments and take such further actions as the other party
may, from time to time, reasonably request in order to effectuate the purposes
and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the Seller
under this Agreement shall not be assigned by the Seller without the prior
written consent of the Purchaser, except that any person into which the Seller
may be merged or consolidated, or any corporation 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. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller, the Purchaser, and their
respective successors and permitted assigns.
SECTION 17. Amendments. 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. The Seller's obligations hereunder shall in no way be
expanded, changed or otherwise affected by any amendment of or modification to
the Pooling and Servicing Agreement, unless the Seller has consented to such
amendment or modification in writing.
16
<PAGE>
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.
SELLER
UBS PRINCIPAL FINANCE LLC
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Address for Notices:
299 Park Avenue
New York, New York 10171
Attention: Ahmed Alali
Telecopier No.: (212) 821-3162
Telephone No.: (212) 821-4782
PURCHASER
STRUCTURED ASSET SECURITIES
CORPORATION
By: ___________________________________
Name:
Title
Address for Notices:
Structured Asset Securities Corporation
Three World Financial Center
New York, NY 10285
Attention: Tricia Hall
Telecopier No.: (212) 526-5911
Telephone No.: (212) 526-3746
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<PAGE>
MORTGAGE LOAN SCHEDULE (UBSPF LOANS)
LOANS: 45
BALANCE: $331,704,266
<TABLE>
<CAPTION>
MORTGAGE PROPERTY NAME ADDRESS
LOAN NUMBER
<S> <C>
---------------------------------------------------------------------------------------------------------------------
1 Westfield Shoppingtown South Shore Mall 1701 Sunrise Highway
---------------------------------------------------------------------------------------------------------------------
4 Exchange Park Center 6303-6333 Forest Park Road
---------------------------------------------------------------------------------------------------------------------
5 Tompkins Square Apartments 190 E. 7th & 609 E. 6th Street
---------------------------------------------------------------------------------------------------------------------
6 136 Madison 136 Madison Avenue
---------------------------------------------------------------------------------------------------------------------
8 404 Fifth Avenue 404 Fifth Avenue
---------------------------------------------------------------------------------------------------------------------
12 Plaza at the Pointe 1600 Quinn Drive
---------------------------------------------------------------------------------------------------------------------
17 Ninigret Industrial Park Buildings Various
---------------------------------------------------------------------------------------------------------------------
18 111 Franklin Plaza 111 Franklin Road
---------------------------------------------------------------------------------------------------------------------
37 162-21 Jamaica Ave. 162-21 Jamaica Ave.
---------------------------------------------------------------------------------------------------------------------
38 75 South Broadway 75 South Broadway
---------------------------------------------------------------------------------------------------------------------
44 Grapevine I & II Prof. Bldg. 3500 & 3600 William D. Tate Avenue
---------------------------------------------------------------------------------------------------------------------
45 192 East 75th Street 192 East 75th Street
---------------------------------------------------------------------------------------------------------------------
53 6 Joanna Court 6 Joanna Court
---------------------------------------------------------------------------------------------------------------------
56 Kennewick Plaza Shopping Ctr. 2825 W. Kennewick Avenue
---------------------------------------------------------------------------------------------------------------------
59 Arthur's Court Apartments 4655 Glenwood Avenue
---------------------------------------------------------------------------------------------------------------------
60 720 Monroe Street 720 Monroe Street
---------------------------------------------------------------------------------------------------------------------
62 Glenview Office Building 3201 Old Glenview Road
---------------------------------------------------------------------------------------------------------------------
65 River Run Shopping Center 4956 Long Beach Road (Hwy. 133)
---------------------------------------------------------------------------------------------------------------------
68 Gun Club Shopping Center 4645 Gun Club Road
---------------------------------------------------------------------------------------------------------------------
74 Peachtree Village of Ft. Smith 1500, 1621 and 1701 South Fresno Street
---------------------------------------------------------------------------------------------------------------------
82 Northwend Shopping Center 9515 North Lamar Boulevard
---------------------------------------------------------------------------------------------------------------------
86 Victorian Apartments 3435 Webb Chapel Extension
---------------------------------------------------------------------------------------------------------------------
89 Flairwood Apartments 4361 Tchulahoma Road
---------------------------------------------------------------------------------------------------------------------
92 South Pointe Shopping Center Highway 61 at Hennings Drive
---------------------------------------------------------------------------------------------------------------------
93 Willow Creek Apartments 4556 Winchester Road
---------------------------------------------------------------------------------------------------------------------
95 Cartwheel Lodge of Gonzales 1800 Cartwheel Drive
---------------------------------------------------------------------------------------------------------------------
108 Poplar Apartments 1449 & 1459 Poplar Street, 1848 & 1810-1816 Chessland Street
---------------------------------------------------------------------------------------------------------------------
118 Fall River Apartments Various
---------------------------------------------------------------------------------------------------------------------
121 Highpoint Village II 201 South Clark Road
---------------------------------------------------------------------------------------------------------------------
126 8706-8716 Astoria Boulevard 8706-8716 Astoria Boulevard
---------------------------------------------------------------------------------------------------------------------
136 Rosbough Drive 17535 Rosbough Drive
---------------------------------------------------------------------------------------------------------------------
137 Hilltop Square Shopping Center 6455 Hilltop Drive
---------------------------------------------------------------------------------------------------------------------
138 Whalley Medical Prof. Bldg. 399 and 419 Whalley Avenue
---------------------------------------------------------------------------------------------------------------------
142 Interlachen Shopping Center 1114 Highway 20
---------------------------------------------------------------------------------------------------------------------
145 1425-1465 Washington Avenue Various
---------------------------------------------------------------------------------------------------------------------
153 1501 Locust Street 1501 Locust Street
---------------------------------------------------------------------------------------------------------------------
156 Westgate Shopping Center 3210 Crill Avenue
---------------------------------------------------------------------------------------------------------------------
158 Thunderbird Plaza 13806 North 51st Avenue
---------------------------------------------------------------------------------------------------------------------
161 Elam Court Apartments 15-45 Elam Street
---------------------------------------------------------------------------------------------------------------------
162 Green Mountain and Hunt's Homestead Mobile HomesVarious
---------------------------------------------------------------------------------------------------------------------
163 Avalon Meadows 2610 Old Iowa Park Drive
---------------------------------------------------------------------------------------------------------------------
164 1334 Walnut Street 1334 Walnut Street
---------------------------------------------------------------------------------------------------------------------
165 34 Eagle Avenue 34 Eagle Avenue
---------------------------------------------------------------------------------------------------------------------
166 Oak Creek Apartments 3500 Decker Drive
---------------------------------------------------------------------------------------------------------------------
167 Oak Park Apartments 1308 First Street
---------------------------------------------------------------------------------------------------------------------
Total
---------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
ZIP CUT-OFF DATE MONTHLY P&I MORTGAGE
CITY STATE CODE BALANCE PAYMENT RATE
-----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Bay Shore NY 11706 85,932,281.57 644,284.70 8.177
-----------------------------------------------------------------------------------
Dallas TX 75245 26,956,282.23 211,445.65 8.700
-----------------------------------------------------------------------------------
New York NY 10009 26,917,209.21 204,837.54 8.350
-----------------------------------------------------------------------------------
New York NY 10016 22,439,000.36 173,324.55 8.520
-----------------------------------------------------------------------------------
New York NY 10018 18,186,494.03 139,942.25 8.500
-----------------------------------------------------------------------------------
North Fayette Township PA 15071 14,312,656.52 111,041.10 8.550
-----------------------------------------------------------------------------------
Salt Lake City UT 84104 11,990,799.86 91,590.12 8.420
-----------------------------------------------------------------------------------
Roanoke VA 24011 11,980,569.86 93,975.85 8.700
-----------------------------------------------------------------------------------
Jamaica NY 11432 7,191,051.62 56,745.31 8.770
-----------------------------------------------------------------------------------
White Plains NY 10601 7,087,433.86 54,291.24 8.440
-----------------------------------------------------------------------------------
Grapevine TX 76051 6,687,702.48 50,712.17 8.330
-----------------------------------------------------------------------------------
New York NY 10021 6,687,337.53 50,287.77 8.240
-----------------------------------------------------------------------------------
East Brunswick NJ 08816 5,985,290.05 45,583.16 8.370
-----------------------------------------------------------------------------------
Kennewick WA 99336 5,792,341.72 44,946.84 8.585
-----------------------------------------------------------------------------------
Decatur GA 30035 5,309,464.01 37,410.00 7.560
-----------------------------------------------------------------------------------
Hoboken NJ 07030 5,288,314.50 44,404.84 8.980
-----------------------------------------------------------------------------------
Wilmette IL 60091 5,013,091.35 38,150.53 8.380
-----------------------------------------------------------------------------------
Southport NC 28461 4,937,971.97 37,710.96 8.400
-----------------------------------------------------------------------------------
West Palm Beach FL 33415 4,796,125.16 36,195.86 8.290
-----------------------------------------------------------------------------------
Ft. Smith AR 72901 4,479,615.99 37,486.89 8.910
-----------------------------------------------------------------------------------
Austin TX 78753 3,581,786.83 28,321.22 8.750
-----------------------------------------------------------------------------------
Dallas TX 75220 3,292,065.03 26,315.45 8.900
-----------------------------------------------------------------------------------
Memphis TN 38118 3,266,248.06 25,367.83 8.580
-----------------------------------------------------------------------------------
Sikeston MO 63801 3,234,635.70 24,416.16 8.250
-----------------------------------------------------------------------------------
Memphis TN 38118 3,179,794.14 24,322.31 8.375
-----------------------------------------------------------------------------------
Gonzales TX 78629 3,134,007.25 28,624.07 10.000
-----------------------------------------------------------------------------------
Pittsburgh PA 15205 2,423,155.78 18,543.13 8.440
-----------------------------------------------------------------------------------
Various MA Various 2,155,816.65 18,162.45 9.500
-----------------------------------------------------------------------------------
Cedar Hill TX 75104 1,996,530.86 15,378.27 8.500
-----------------------------------------------------------------------------------
Jackson Heights NY 11369 1,896,663.36 14,762.45 8.625
-----------------------------------------------------------------------------------
Middleburg Heights OH 44130 1,683,790.53 13,051.85 8.580
-----------------------------------------------------------------------------------
North Richland Hills TX 76180 1,595,256.29 13,128.04 9.220
-----------------------------------------------------------------------------------
New Haven CT 06510 1,572,712.19 12,672.81 9.000
-----------------------------------------------------------------------------------
Interlachen FL 32148 1,535,963.47 11,994.40 8.640
-----------------------------------------------------------------------------------
Albany NY 12206 1,497,237.25 12,361.88 9.270
-----------------------------------------------------------------------------------
Philadelphia PA 19106 1,118,083.46 8,643.60 8.540
-----------------------------------------------------------------------------------
Palatka FL 32177 1,037,274.00 8,100.12 8.640
-----------------------------------------------------------------------------------
Glendale AZ 85306 941,868.60 7,502.93 8.875
-----------------------------------------------------------------------------------
New Britain CT 06053 818,487.40 6,969.91 9.625
-----------------------------------------------------------------------------------
Various Var Various 795,500.70 7,006.01 8.625
-----------------------------------------------------------------------------------
Wichita Falls TX 76305 769,486.37 6,057.59 8.750
-----------------------------------------------------------------------------------
Philadelphia PA 19107 698,802.16 5,402.25 8.540
-----------------------------------------------------------------------------------
Paterson NJ 07503 511,221.23 4,073.70 8.875
-----------------------------------------------------------------------------------
Baytown TX 77520 499,374.45 3,933.50 8.750
-----------------------------------------------------------------------------------
Galena Park TX 77547 497,470.42 3,933.50 8.750
-----------------------------------------------------------------------------------
331,704,266.06
-----------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
REMAINING STATED REMAINING INTEREST PRIMARY FEE SIMPLE
TERM TO MATURITY AMORTIZATION ACCRUAL ADMINISTRATIVE SERVICING OR GROUND
MATURITY DATE TERM BASIS COST RATE FEE RATE LEASE FLAG
--------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
351 12/11/29 352 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
356 5/11/30 356 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
353 2/11/30 354 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
354 3/11/30 354 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
358 7/11/30 358 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
111 12/11/09 351 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
358 7/11/30 358 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
356 5/11/30 356 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
357 6/11/30 357 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
356 5/11/30 356 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
356 5/11/30 356 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
356 5/11/30 356 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
355 4/11/30 355 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
357 6/11/30 357 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
117 6/11/10 357 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
297 6/11/25 297 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
358 7/11/30 358 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
115 4/6/10 355 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
358 7/11/30 358 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
294 3/11/25 294 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
109 10/6/09 349 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
354 3/11/30 354 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
354 3/6/30 354 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
111 12/6/09 351 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
108 9/6/09 348 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
112 1/11/10 292 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
118 7/11/10 358 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
114 3/11/10 354 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
116 5/11/10 356 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
118 7/11/10 358 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
358 7/6/30 358 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
353 2/11/30 353 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
116 5/11/10 356 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
114 3/11/10 354 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
175 4/11/15 355 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
116 5/11/10 356 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
114 3/11/10 354 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
117 6/11/10 357 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
114 3/11/10 354 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
116 5/11/10 236 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
118 7/11/10 358 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
116 5/11/10 356 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
116 5/11/10 356 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
117 6/11/10 357 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
109 10/11/09 349 Act/360 0.0833 0.0500 Fee Simple
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
ARD
ARD ANTICIPATED ADDITIONAL CREDIT LEASE LOAN LEASE
MORTGAGE MORTGAGE REPAYMENT INTEREST (TENANT, GUARANTOR, ENHANCEMENT
LOAN SELLER DEFEASANCE LOAN DATE RATE (%) RATED PARTY) POLICY
<S> <C> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Yes 12/11/09 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 5/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Yes 2/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 3/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 7/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 7/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 5/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 6/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 5/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 5/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 5/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 4/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Yes 6/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 6/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 7/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 7/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 3/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 3/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 3/6/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 7/6/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance Yes 2/11/10 2.00
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF Defeasance
-----------------------------------------------------------------------------------------------------------------------------------
UBSPF
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
RESIDUAL
VALUE MORTGAGE LOAN
INSURANCE CROSS COLLATERALIZED SELLER LOAN ID
<S> <C> <C>
----------------------------------------------------------------------------------------------------
No LG-6133
----------------------------------------------------------------------------------------------------
No 6439
----------------------------------------------------------------------------------------------------
No 6165
----------------------------------------------------------------------------------------------------
No 5187
----------------------------------------------------------------------------------------------------
No 6412
----------------------------------------------------------------------------------------------------
No 5616
----------------------------------------------------------------------------------------------------
No 6254
----------------------------------------------------------------------------------------------------
No 6059
----------------------------------------------------------------------------------------------------
No 6058
----------------------------------------------------------------------------------------------------
No 6442
----------------------------------------------------------------------------------------------------
No 6076
----------------------------------------------------------------------------------------------------
No 6286
----------------------------------------------------------------------------------------------------
No 6481
----------------------------------------------------------------------------------------------------
No 6252
----------------------------------------------------------------------------------------------------
No 5159
----------------------------------------------------------------------------------------------------
No 6482
----------------------------------------------------------------------------------------------------
No 5866
----------------------------------------------------------------------------------------------------
No 5739
----------------------------------------------------------------------------------------------------
No 5819
----------------------------------------------------------------------------------------------------
No 6050
----------------------------------------------------------------------------------------------------
No 5504
----------------------------------------------------------------------------------------------------
No 6307
----------------------------------------------------------------------------------------------------
No 6246
----------------------------------------------------------------------------------------------------
No 5116
----------------------------------------------------------------------------------------------------
No 5603
----------------------------------------------------------------------------------------------------
No 6009
----------------------------------------------------------------------------------------------------
No 6321
----------------------------------------------------------------------------------------------------
No 5424
----------------------------------------------------------------------------------------------------
No 6316
----------------------------------------------------------------------------------------------------
No 6466
----------------------------------------------------------------------------------------------------
No 6459
----------------------------------------------------------------------------------------------------
No 6121
----------------------------------------------------------------------------------------------------
No 6195
----------------------------------------------------------------------------------------------------
Yes - Putnam Centers 6022
----------------------------------------------------------------------------------------------------
No 6151
----------------------------------------------------------------------------------------------------
No 6221
----------------------------------------------------------------------------------------------------
Yes - Putnam Centers 6021
----------------------------------------------------------------------------------------------------
No 6429
----------------------------------------------------------------------------------------------------
No 6202
----------------------------------------------------------------------------------------------------
No 5932
----------------------------------------------------------------------------------------------------
No 6282
----------------------------------------------------------------------------------------------------
No 6222
----------------------------------------------------------------------------------------------------
No 6363
----------------------------------------------------------------------------------------------------
No 5927
----------------------------------------------------------------------------------------------------
No 5612
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
<PAGE>
Except as set forth on the schedule of exceptions, the Seller
hereby represents and warrants to the Purchaser, with respect to each Mortgage
Loan, as of the Closing Date or such other date specified in the particular
representation and warranty, that:
(i) The information pertaining to such Mortgage Loan set
forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date, and the Mortgage Loan
Schedule meets the requirements of this Agreement in all material
respects.
(ii) If such Mortgage Loan was originated by the Seller or
another Affiliate of the Seller, then, as of the date of its
origination, such Mortgage Loan complied in all material respects with,
or was exempt from, all requirements of federal, state or local law
relating to the origination of such Mortgage Loan; and, if such
Mortgage Loan was not originated by the Seller or another Affiliate of
the Seller, then, to the best of the Seller's knowledge after having
performed the type of due diligence customarily performed by prudent
institutional commercial and multifamily mortgage lenders, as of the
date of its origination, such Mortgage Loan complied in all material
respects with, or was exempt from, all requirements of federal, state
or local law relating to the origination of such Mortgage Loan. No
action has been taken by the Seller or, to its knowledge, any prior
holder of such Mortgage Loan, that would cause the representations and
warranties made by the related Mortgagor in the related Mortgage Loan
documents not to be true and correct in any material respect.
(iii) The Seller owns such Mortgage Loan, has good and
marketable title thereto, has full right and authority to sell, assign
and transfer such Mortgage Loan and is transferring such Mortgage Loan
free and clear of any and all liens, pledges, charges, encumbrances or
security interests of any nature encumbering such Mortgage Loan; no
provision of the Mortgage Note, Mortgage(s) or other loan documents
relating to such Mortgage Loan prohibits or restricts the Seller's
right to assign or transfer such Mortgage Loan; and the Seller has
validly and effectively conveyed to the Trustee a legal and beneficial
interest in and to such Mortgage Loan free and clear of any lien, claim
or encumbrance of any nature. Such Mortgage Loan is properly endorsed
as provided in this Agreement and such endorsement is genuine.
(iv) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(v) Each of the related Mortgage Note, Mortgage(s),
Assignment(s) of Leases, if any, and other agreements and instruments
executed in connection therewith is the legal, valid and binding
obligation of the maker thereof (subject to the non-recourse provisions
therein and any state anti-deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and (in the case of
the related Mortgage Note, Mortgage(s) and Assignment(s) of Leases) a
legal opinion to such effect was
<PAGE>
obtained by the originator of such Mortgage Loan at the time of
origination; and the Mortgage Loan is non-recourse to the Mortgagor or
any other Person.
(vi) As of the date of its origination, there was no valid
offset, defense, counterclaim or right to rescission with respect to
any of the related Mortgage Note, Mortgage(s) or other agreements
executed in connection therewith; and, as of the Cut-off Date, to the
Seller's knowledge, including based on due diligence performed at the
time of origination of such Mortgage Loan that was the type of due
diligence customarily performed by prudent institutional commercial and
multifamily mortgage lenders, there is no valid offset, defense,
counterclaim or right to rescission with respect to such Mortgage Note,
Mortgage(s) or other agreements; and, to the knowledge of the Seller,
no such claim has been asserted.
(vii) The assignment of the related Mortgage(s) and
Assignment(s) of Leases to the Trustee constitutes the legal, valid,
binding and enforceable assignment of such documents in accordance with
their respective terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(viii) Each related Mortgage is a valid and, subject to the
limitation in paragraph (v) above, enforceable first lien on the
related Mortgaged Property and all buildings thereon and fixtures
thereto, which Mortgaged Property is free and clear of all encumbrances
and liens having priority over or on a parity with the first lien of
such Mortgage, except for (A) liens for real estate taxes and special
assessments, ground rents (if applicable), water charges and sewer
rents not yet due and 30 days' delinquent, (B) covenants, conditions
and restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage, such exceptions
appearing of record being customarily acceptable to mortgage lending
institutions generally or specifically reflected in the appraisal (if
any) of such Mortgaged Property made in connection with the origination
of such Mortgage Loan, and (C) exceptions and exclusions specifically
referred to in the lender's title policy, a pro forma title policy or a
marked-up commitment issued with respect to such Mortgage Loan (the
exceptions set forth in the foregoing clauses (A), (B) and (C)
collectively, "Permitted Encumbrances"); and such Permitted
Encumbrances do not, individually or in the aggregate, materially and
adversely interfere with the benefits of the security intended to be
provided by such Mortgage, materially and adversely interfere with the
current use or operation of the related Mortgaged Property or
materially and adversely affect the value or marketability of such
Mortgaged Property or the ability of the related Mortgagor to timely
pay in full the principal and interest on the related Mortgage Note. If
the related Mortgaged Property is currently operated as a nursing
facility or a hospitality property, the related Mortgage, together with
any separate security agreement, chattel mortgage or similar agreement
and UCC financing statement, if any, establishes and creates a first
priority, perfected security interest (subject only to any prior
purchase money security interest), to the extent such security interest
can be perfected by the recordation of a Mortgage or the filing of a
UCC
<PAGE>
financing statement, in all personal property owned by the Mortgagor
that is used in, and is reasonably necessary to, the operation of the
related Mortgaged Property.
(ix) The related Mortgage Loan Seller has filed and/or
recorded in all appropriate public filing and recording offices all
UCC-1 financing statements necessary to create and perfect a security
interest in and lien on the items of personal property described
therein (such description being consistent with the practices of
prudent commercial mortgage lenders), which personal property includes,
in the case of healthcare facilities and hotel properties, all
furniture, fixtures, equipment and other personal property located at
the subject Mortgaged Property that is owned by the related Mortgagor
and necessary or material to the operation of the subject Mortgaged
Property (or, if not filed and/or recorded, the related Mortgage Loan
Seller has submitted such UCC-1 financing statements for filing and/or
recording and such UCC-1 financing statements are in form and substance
acceptable for filing and/or recording), to the extent perfection may
be effected pursuant to applicable law by recording or filing.
(x) All taxes, governmental assessments, ground rents,
water charges or sewer rents, assessments for improvements and similar
charges that (A) could become a lien on any related Mortgaged Property
of priority equal to or higher than the lien of the related Mortgage
and (B) prior to the Cut-off Date became due and owing in respect of,
and materially affect, any related Mortgaged Property have been paid,
or an escrow of funds in an amount sufficient to cover such payments
has been established.
(xi) As of the date of its origination, there was no
proceeding pending for the total or partial condemnation of any related
Mortgaged Property that materially affects the value thereof, and each
such Mortgaged Property was free of material damage; and, as of the
Cut-off Date, to the actual knowledge of the Seller, there was no
pending proceeding for the total or partial condemnation of any related
Mortgaged Property that materially affects the value thereof, and such
Mortgaged Property is free of material damage.
(xii) Each related Mortgaged Property is covered by an ALTA
(or its equivalent) lender's title insurance policy issued by a
nationally recognized title insurance company qualified or licensed in
the applicable jurisdiction, as required, insuring the originator of
such Mortgage Loan, its successors and assigns, that each related
Mortgage constitutes a valid first lien on such Mortgaged Property in
the original principal amount of such Mortgage Loan after all advances
of principal, subject only to Permitted Encumbrances (which Permitted
Encumbrances do not, individually or in the aggregate, materially and
adversely interfere with the benefits of the security intended to be
provided by such Mortgage, materially and adversely interfere with the
current use or operation of the related Mortgaged Property or
materially or adversely affect the value or marketability of such
Mortgaged Property or the ability of the related Mortgagor to timely
pay in full the principal and interest on the related Mortgage Note),
or there is a binding commitment from such title insurer to issue such
policy; such title insurance policy (or, if not issued, the coverage to
be provided thereby) is in full force and effect, all premiums have
been paid, is freely assignable and will inure solely to the benefit of
the Trustee as mortgagee of record, without the consent of the insurer;
no claims have
<PAGE>
been made under such title insurance and neither the Seller nor, to the
best of the Seller's knowledge, any prior mortgagee has done, by act or
omission, anything that would materially impair the coverage of any
such title insurance policy; and the Seller has no knowledge of any
fact or circumstance that would impair such coverage such policy or
commitment contains no exclusion for (or alternatively it insures,
unless such coverage is unavailable in the relevant jurisdiction) (A)
access to a public road, (B) that there is no material encroachment by
any improvements on the Mortgaged Property, and (C) that the area shown
on the survey materially conforms to the legal description of the
related Mortgaged Property. The related Mortgage has been submitted for
recordation in the applicable jurisdiction, the full amount of the
related Mortgage has been recorded on the related Mortgaged Property
and all applicable mortgage recording taxes have been paid. If the
related Mortgaged Property consists of more than one parcel used as a
single tract, than either (A) such parcels are contiguous or (B) the
failure of such parcels to be contiguous does not materially and
adversely interfere with the benefits of the security intended to be
provided by the related Mortgage or materially and adversely interfere
with the current use or operation of the related Mortgaged Property.
(xiii) As of the date of its origination and, to the best
of the Seller's knowledge, as of the Cut-off Date, all insurance
required under each related Mortgage was in full force and effect with
respect to each related Mortgaged Property; the related Mortgage
required that such insurance covered such risks as were customarily
acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, and included (A) fire and extended perils
insurance, in an amount (subject to a customary deductible) at least
equal to 100% of the full insurable replacement cost of the
improvements located on such Mortgaged Property (except to the extent
not permitted by applicable law and then in such event in an amount at
least equal to the initial principal balance of such Mortgage Loan, or
the portion thereof allocable to such Mortgaged Property, together with
an "agreed value endorsement"), (B) a business interruption or rental
loss insurance for a period of not less than 12 months, (C)
comprehensive general liability insurance in an amount not less than $1
million per occurrence, (D) workers' compensation insurance (if the
related Mortgagor has employees and if required by applicable law), and
(E) if (1) such Mortgage Loan is secured by a Mortgaged Property
located in the State of California or in "seismic zone" 3 or 4 and (2)
a seismic assessment revealed a maximum probable loss (based on the
seismic assessment, the probable maximum loss values were expressed in
terms of a mean recurrence interval or a probability of exceedance; the
mean recurrence interval (e.g. 475 years) is an expression of the
average period of time, expressed in years, between the occurrence of
earthquakes which produces effects of the same, or greater, severity;
the probability of exceedance (e.g. 10% in 50 years) is a statistical
representation of the chance that earthquake effects exceeding a given
severity will be experienced at the site within a specified number of
years) or bounded loss in excess of 20% of the amount of the estimated
replacement cost of the improvements on such Mortgaged Property,
earthquake insurance; it is an event of default under such Mortgage
Loan if the above-described insurance coverage is not maintained by the
related Mortgagor, and any reasonable out-of-pocket costs and expenses
incurred by the mortgagee in connection with such default in obtaining
such insurance coverage are
<PAGE>
recoverable from the related Mortgagor; the related insurance policies
provide that they may not be terminated or reduced without at least 10
days prior notice to the mortgagee and (other than those limited to
liability protection) name the mortgagee and its successors as loss
payee; no notice of termination or cancellation with respect to any
such insurance policy has been received by the Seller; all premiums
under any such insurance policy have been paid through the Cut-off
Date; the insurance policies specified in clauses (A), (B) and (C)
above are required to be maintained with insurance companies having
"financial strength" or "claims paying ability" ratings of at least
"A:VIII" from A.M. Best Company or at least "A-" (or equivalent) from a
nationally recognized statistical rating agency, or for certain
Mortgage Loans with Cut-off Date Balance of less than $3 million, by a
carrier acceptable to the lender; and, except for certain amounts not
greater than amounts which would be considered prudent by an
institutional commercial mortgage lender with respect to a similar
mortgage loan and which are set forth in the related Mortgage or other
loan documents relating to such Mortgage Loan, any insurance proceeds
will be applied either to the repair or restoration of all or part of
the related Mortgaged Property or the reduction of the outstanding
principal balance of such Mortgage Loan. If the related Mortgaged
Property is located in the State of California or in "seismic zone" 3
or 4, then either a seismic assessment was conducted with respect to
the related Mortgaged Property in connection with the origination of
such Mortgage Loan or earthquake insurance was obtained.
If any portion of the improvements on the related Mortgaged
Property was, at the time of origination, in an area identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards falling within zones A or V in the national flood
insurance program (an "SPF Area"), and flood insurance was available, a
flood insurance policy meeting the then current guidelines of the
Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the outstanding principal balance of such
Mortgage Loan, (2) the full insurable actual cash value of those
improvements located on the related Mortgaged Property that are, in
whole or in part, in an SPF Area, (3) the maximum amount of insurance
available under the National Flood Insurance Act of 1968, as amended,
and (4) 100% of the insurable replacement cost of those improvements
located on the related Mortgaged Property that are, in whole or in
part, in an SPF Area.
(xiv) Other than payments due but not yet 30 days or more
delinquent, there is, to the best of Seller's knowledge, (A) no
material default, breach, violation or event of acceleration existing
under the related Mortgage Note, the related Mortgage or other loan
documents relating to such Mortgage Loan, and (B) no event which, with
the passage of time or with notice and the expiration of any grace or
cure period, would constitute a material default, breach, violation or
event of acceleration under any of such documents; provided, however,
that this representation and warranty does not cover any default,
breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation or warranty made in this Exhibit. The Seller has not
waived (and to its knowledge, no prior holder has) any other material
default, breach, violation or event of acceleration under any of such
documents; and under the terms of such Mortgage Loan, no person or
party other than the mortgagee
<PAGE>
may declare an event of default or accelerate the related indebtedness
under such Mortgage Loan.
(xv) As of the Cut-off Date, such Mortgage Loan is not, and
since the date of origination has not been, 30 days or more past due in
respect of any Scheduled Payment (without giving effect to any grace
period).
(xvi) Such Mortgage Loan accrues interest on an Actual/360
Basis or on a 30/360 Basis; and such Mortgage Loan accrues interest
(payable monthly in arrears) at a fixed rate of interest throughout the
remaining term of such Mortgage Loan (except if such Mortgage Loan is
an ARD Loan, in which case the accrual rate for interest will increase
after its Anticipated Repayment Date, and except in connection with the
occurrence of a default and the accrual of default interest).
(xvii) Each related Mortgage or other loan document
relating to such Mortgage Loan does not provide for or permit any
related Mortgaged Property to secure any other promissory note or
obligation (other than another Mortgage Loan in the Trust), without
either (A) the prior written consent of the holder of such Mortgage
Loan or (B) the satisfaction of conditions such as the execution and
delivery of a subordination and standstill agreement and a minimum
combined debt service coverage ratio.
(xviii) Such Mortgage Loan is or constitutes part of a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code. Accordingly, (A) such Mortgage Loan is secured by an interest in
real property having a fair market value (1) at the date the Mortgage
Loan was originated at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (2) at the Closing Date at
least equal to 80 percent of the principal balance of the Mortgage Loan
on such date; provided that for purposes hereof , the fair market value
of the real property interest must first be reduced by (X) the amount
of any lien on the real property interest that is senior to the
Mortgage Loan, and (Y) a proportionate amount of any lien that is in
parity with the Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such Mortgage Loan, in
which event the computation described in clauses (A)(1) and (A)(2) of
this paragraph (xviii) shall be made on a pro rata basis in accordance
with the fair market values of the Mortgaged Properties securing such
cross-collateralized Mortgage Loans); or (B) substantially all the
proceeds of such Mortgage Loan were used to acquire, improve or protect
the real property which served as the only security for such Mortgage
Loan (other than a recourse feature or other third-party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)). Such Mortgage Loan does not permit the release or
substitution of collateral if such release or substitution (a) would
constitute a "significant modification" of such Mortgage Loan within
the meaning of Treas. Reg. ss.1.1001-3 or (b) would cause such Mortgage
Loan not to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (without regard to clauses (A)(i) or (A)(ii)
thereof).
(xix) Prepayment Premiums and Yield Maintenance Charges
payable with respect to such Mortgage Loan, if any, constitute
"customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2).
<PAGE>
(xx) One or more environmental site assessments were
performed by an environmental consulting firm independent of the Seller
and the Seller's Affiliates with respect to each related Mortgaged
Property during the 12-month period preceding the Cut-off Date, and the
Seller, having made no independent inquiry other than to review the
report(s) prepared in connection with such assessment(s), has no
knowledge of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed
in such report(s); all such environmental site assessments met ASTM
requirements; and none of the environmental reports identify any
circumstances or conditions that would (A) constitute or result in a
violation of any applicable environmental laws, (B) require any
expenditure material in relation to the principal balance of the
Mortgage Loan to achieve or maintain compliance in all material
respects with any environmental laws, or (C) require substantial
cleanup, remedial action or other material response under any
environmental laws, or if such report does identify such circumstances,
then (1) the same have been remediated in all material respects, (2)
sufficient funds have been escrowed or a letter of credit has been
provided for purposes of effecting such remediation, (3) the related
Mortgagor or other responsible party is currently taking remedial or
other appropriate action to address the environmental issue consistent
with the recommendations in such site assessment, (4) the cost of the
environmental issue relative to the value of such Mortgaged Property
was de minimis, or (5) environmental insurance has been obtained.
If such Mortgage Loan has a Cut-off Date Balance in excess
of $15,000,000, then: (A) the Mortgagor with respect to such Mortgage
Loan has represented, warranted and covenanted that, to its knowledge,
except as set forth in the environmental reports described above, it
has not used, caused or permitted to exist, and will not use, cause or
permit to exist, on the related Mortgaged Property, any Hazardous
Materials in any manner which violates applicable federal, state or
local laws governing the use, storage, handling, production or disposal
of Hazardous Materials at the related Mortgaged Property; and (B) the
related Mortgagor or an Affiliate thereof has agreed to indemnify the
mortgagee under such Mortgage Loan against any losses, liabilities,
damages, claims and reasonable out-of-pocket expenses suffered or
incurred by such Mortgagee resulting from a breach of certain of those
representations and warranties or covenants given by the related
Mortgagor in connection with such Mortgage Loan.
The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Seller or its successors and assigns in respect of the Mortgage Loan to
liability under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, or any other applicable federal,
state or local environmental law. The related Mortgage or other loan
documents requires the Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations.
(xxi) The related Mortgage Note, Mortgage(s), Assignment(s)
of Leases and other loan documents securing such Mortgage Loan, if any,
contain customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property or Properties of the
principal benefits of the security intended to be provided thereby,
including
<PAGE>
realization by judicial or, if applicable, non-judicial foreclosure,
subject to bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally as from time to time
in effect, and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(xxii) To the Seller's knowledge, including based on due
diligence performed at the time of origination of such Mortgage Loan
that was the type of due diligence customarily performed by prudent
institutional commercial and multifamily mortgage lenders, the related
Mortgagor is not (and, at the time of origination of such Mortgage
Loan, was not) a debtor in, and the related Mortgaged Property is not
subject to, any bankruptcy, reorganization, insolvency or comparable
proceeding.
(xxiii) Such Mortgage Loan is secured by a mortgage on a
fee simple interest in a commercial property or multifamily property,
including the related Mortgagor's interest in the improvements on the
related Mortgaged Property.
(xxiv) Such Mortgage Loan does not provide for negative
amortization unless such Mortgage Loan is an ARD Loan, in which case it
may occur only after the related Anticipated Repayment Date.
(xxv) Such Mortgage Loan is a whole loan, contains no
equity participation by the lender or shared appreciation feature and
does not provide for any contingent or additional interest in the form
of participation in the cash flow of the related Mortgaged Property.
Other than through foreclosure or similar enforcement proceedings, the
indebtedness evidenced by the Mortgage Loan is not convertible into an
ownership interest in the related Mortgaged Property or the related
Mortgagor.
(xxvi) The related Mortgage contains provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the prior written consent of the mortgagee or
Rating Agency confirmation that an Adverse Rating Event would not
occur, any related Mortgaged Property or interest therein, is
encumbered by a lien in connection with subordinate or pari passu
financing; no such consent has been granted by the Seller. To the
Seller's knowledge, including based on due diligence performed at the
time of origination of such Mortgage Loan that was the type of due
diligence customarily performed by prudent institutional commercial and
multi-family mortgage lenders, no related Mortgaged Property is
encumbered by a lien in connection with subordinate or pari passu
financing.
(xxvii) Except with respect to transfers of certain
non-controlling and/or minority interests in the related Mortgagor as
specified in the related Mortgage, and except with respect to one or
more transfers of the related Mortgaged Property to a person that
satisfies certain criteria (including criteria related to bankruptcy
remoteness and property management experience) specified in the related
Mortgage (which criteria is consistent with the practices of prudent
commercial mortgage lenders), each related Mortgage contains either (A)
provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if any related Mortgaged Property or
interest therein is directly or indirectly transferred or sold without
the prior written consent of the
<PAGE>
mortgagee, or (B) provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if any related Mortgaged
Property or interest therein is directly or indirectly transferred or
sold without the related Mortgagor having satisfied certain conditions
specified in the related Mortgage with respect to permitted transfers
(which conditions are consistent with the practices of prudent
commercial mortgage lenders).
(xxviii) Unless such Mortgage Loan is the Mortgage Loan
secured by the Mortgaged Property identified on the Mortgage Loan
Schedule as Westfield Shoppingtown South Shore, such Mortgage Loan,
together with any other Mortgage Loan made to the same Mortgagor or to
an Affiliate of such Mortgagor, does not represent more than 5% of the
aggregate Cut-off Date Balance of the Mortgage Pool.
(xxix) Except as set forth in a written instrument included
in the related Mortgage File, the terms of the related Mortgage Note,
the related Mortgage(s) and any related loan agreement and/or lock-box
agreement have not been waived, modified, altered, satisfied, impaired,
canceled, subordinated or rescinded in any manner, nor has any portion
of a related Mortgaged Property been released from the lien of the
related Mortgage to an extent, which in any such event materially
interferes with the security intended to be provided by such document
or instrument; and no instrument that is not part of the Mortgage File
has been executed that would effect any such waiver, modification,
satisfaction, cancellation, rescission or release.
(xxx) Each related Mortgaged Property was inspected by or
on behalf of the related originator during the seven-month period prior
to the related origination date.
(xxxi) Except in cases where either (A) a release of a
portion of the related Mortgaged Property was contemplated at
origination of the Mortgage Loan and such portion was not considered
material for purposes of underwriting the Mortgage Loan, or (B) the
release is conditioned upon the satisfaction of certain underwriting
and legal requirements or the payment of a release price or (C) or the
release is conditioned on the delivery, in accordance with the terms of
the Mortgage Loan documents, of Defeasance Collateral in the form of
U.S. government securities, the related Mortgage Note or Mortgage does
not require the holder thereof to release all or any portion of the
related Mortgaged Property from the lien of the related Mortgage except
upon payment in full of all amounts due under such Mortgage Loan.
(xxxii) The related Mortgagor has covenanted in the
Mortgage Loan documents to maintain the related Mortgaged Property in
compliance in all material respects with all applicable laws, zoning
ordinances, rules, covenants and restrictions affecting the
construction, occupancy, use and operation of such Mortgaged Property,
and the related originator performed the type of due diligence in
connection with the origination of such Mortgage Loan customarily
performed by prudent institutional commercial and multifamily mortgage
lenders with respect to the foregoing matters; the Seller has received
no notice of any material violation of any applicable laws, zoning
ordinances, rules, covenants or restrictions affecting the
construction, occupancy, use or operation of such Mortgaged Property;
to the Seller's knowledge (based on surveys,
<PAGE>
opinions, letters from municipalities and/or title insurance obtained
in connection with the origination of such Mortgage Loan), 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 lay outside the boundaries and
building restriction lines of such property or across any easements to
an extent which would have a material adverse affect on the related
Mortgagor's current use and operation of such Mortgaged Property
(unless affirmatively covered by the title insurance referred to in
paragraph (xii) above), and no improvements on adjoining properties
encroached upon such Mortgaged Property to any material extent.
(xxxiii) The related Mortgagor has covenanted in the
Mortgage Loan documents to deliver each year to the mortgagee quarterly
and/or annual operating statements and rent rolls of each related
Mortgaged Property.
(xxxiv) If such Mortgage Loan has a Cut-off Date Balance in
excess of $15 million, the related Mortgagor is obligated by its
organizational documents and/or the related Mortgage Loan documents to
be a Single Purpose Entity for so long as such Mortgage Loan is
outstanding; and if such Mortgage Loan has a Cut-off Date Balance
greater than $5 million and less than $15 million, the related
Mortgagor is obligated by its organizational documents and/or the
related Mortgage Loan documents to own the related Mortgaged Property
and no other material assets, except such as are incidental to the
ownership of such Mortgaged Property for so long as such Mortgage Loan
is outstanding. For purposes of this representation, "Single Purpose
Entity" means an entity whose organizational documents or the related
Mortgage Loan documents provide substantially to the effect that such
entity: (A) is formed or organized solely for the purpose of owning and
operating one or more of the Mortgaged Properties securing the Mortgage
Loans, (B) may not engage in any business unrelated to such Mortgaged
Property or Mortgaged Properties, (C) does not have any material assets
other than those related to its interest in and operation of such
Mortgaged Property or Mortgaged Properties, (D) may not incur
indebtedness other than as permitted by the related Mortgage or other
Mortgage Loan documents, (E) has its own books and records separate and
apart from any other Person, and (F) holds itself out as a legal
entity, separate and apart from any other Person.
(xxxv) No advance of funds has been made, directly or
indirectly, by the originator or the Seller to the related Mortgagor
other than pursuant to the related Mortgage Note; and no funds have
been received from any Person other than such Mortgagor for or on
account of payments due on the related Mortgage Note.
(xxxvi) To the Seller's actual knowledge, there are no
pending actions, suits, proceedings or governmental investigations by
or before any court or governmental authority against or affecting the
related Mortgagor or any related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of such Mortgaged Property or the ability of
such Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
<PAGE>
(xxxvii) Such Mortgage Loan complied with or was exempt
from all applicable usury laws in effect at its date of origination.
(xxxviii) To the extent required under applicable law as of
the Closing Date, the originator of such Mortgage Loan was authorized
to do business in each jurisdiction in which a related Mortgaged
Property is located at all times when it held such Mortgage Loan to the
extent necessary to ensure the enforceability of such Mortgage Loan.
(xxxix) If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and no fees and
expenses are payable to such trustee except in connection with a
trustee sale of the related Mortgaged Property following a default or
in connection with the release of liens securing such Mortgage Loan.
(xl) If such Mortgage Loan is cross-collateralized, it is
cross-collateralized only with other Mortgage Loans in the Trust Fund
and so identified on the Mortgage Loan Schedule; and the security
interest/lien on each material item of collateral for such Mortgage
Loan has been assigned to the Trustee.
(xli) All liens on and security interests in any material
items of collateral securing such Mortgage Loan have been assigned to
the Trustee.
(xlii) One or more engineering assessments were performed
by an Independent engineering consulting firm on behalf of the Seller
or one of its Affiliates with respect to each related Mortgaged
Property during the 12-month period preceding the Cut-off Date, and the
Seller, having made no independent inquiry other than to review the
report(s) prepared in connection with such assessment(s), does not have
any knowledge of any material and adverse engineering condition or
circumstance affecting such Mortgaged Property that was not disclosed
in such report(s); and, to the extent such assessments revealed
deficiencies, deferred maintenance or similar conditions, either (A)
the estimated cost has been escrowed or a letter of credit has been
provided, (B) repairs have been made or (C) the scope of the deferred
maintenance relative to the value of such Mortgaged Property was de
minimis.
(xliii) All escrow deposits and payments relating to such
Mortgage Loan are under control of the Seller or the servicer of such
Mortgage Loan and all amounts required as of the date hereof under the
related Mortgage Loan documents to be deposited by the related
Mortgagor have been deposited.
(xliv) The related Mortgagor has represented to the Seller
that, and to the knowledge of the Seller, including based on due
diligence performed at the time of origination of such Mortgage Loan
that was the type of due diligence customarily performed by prudent
institutional commercial and multi-family mortgage lenders, as of the
date of origination of such Mortgage Loan, such Mortgagor, the related
lessee, franchisor or operator was in possession of all licenses,
permits and authorizations then required for use of the related
Mortgaged Property, which were valid and in full force and effect. If
the related Mortgaged Property is improved by a hotel, the most recent
<PAGE>
inspection report or survey by governmental authorities having
jurisdiction in connection with such licenses, permits and
authorizations, that is in the possession of the Seller, did not cite
such Mortgaged Property for material violations that have not been
cured or as to which a plan of correction has not been submitted to and
accepted by such governmental authorities. In addition, if the related
Mortgaged Property is improved by a health care facility, then attached
hereto as Schedule I-xlvii is, to the Seller's knowledge, the most
recent inspection report or survey by governmental authorities having
jurisdiction in connection with such licenses, permits and
authorizations, that is in the possession of the Seller, and such
report or survey did not cite such Mortgaged Property for material
violations that have not been cured or as to which a plan of correction
has not been submitted to and accepted by such governmental
authorities.
(xlv) The origination, servicing and collection practices
used by the Seller or any prior holder of the Mortgage Note have been
in all respects legal and have met customary industry standards.
(xlvi) Such Mortgage Loan is secured in whole or in
material part by a fee simple interest.
(xlvii) RESERVED.
(xlviii) If such Mortgage Loan is secured in whole or in
part by the interest of the related Mortgagor under a Ground Lease and
by the related fee interest, then (A) such fee interest is subject, and
subordinated of record, to the related Mortgage, (B) the related
Mortgage does not by its terms provide that it will be subordinated to
the lien of any other mortgage or other lien upon such fee interest,
and (C) upon occurrence of a default under the terms of the related
Mortgage by the related Mortgagor, the mortgagee under such Mortgage
Loan has the right to foreclose upon or otherwise exercise its rights
with respect to such fee interest.
(xlix) Each related Mortgaged Property (a) constitutes one
or more complete separate tax lots or (b) is subject to an endorsement
under the related title insurance policy or if neither (a) nor (b)
applies, taxes for the other property have been escrowed; and each
related Mortgaged Property is served by a public water system, a public
sewer (or, alternatively, a septic) system, and other customary public
utility facilities.
(l) (1) If such Mortgage Loan is a Defeasance Loan, the
related Mortgage Loan documents require the related Mortgagor to pay
all costs associated with the defeasance thereof, and either: (A)
require the prior written consent of, and compliance with the
conditions set by, the holder of such Mortgage Loan for defeasance, (B)
require that (1) defeasance may not occur prior to the second
anniversary of the Closing Date, (2) the Defeasance Collateral must be
government securities within the meaning of Treasury Regulation
ss.1.860G-2(a)(8)(i) and must be sufficient to make all scheduled
payments under the related Mortgage Note when due (assuming for each
ARD Loan that it matures on its Anticipated Repayment Date) or, in the
case of a partial defeasance that effects the release of a material
portion of the related Mortgaged Property, to make all scheduled
payments under the related Mortgage Note on that part of such Mortgage
Loan equal to at
<PAGE>
least 125% of the allocated loan amount of the portion of the Mortgaged
Property being released, (3) an independent accounting firm certify
that the Defeasance Collateral is sufficient to make such payments, (4)
the Mortgage Loan be assumed by a Single-Purpose Entity designated by
the holder of such Mortgage Loan, and (5) counsel provide an opinion
letter to the effect that the Trustee has a perfected security interest
in such Defeasance Collateral prior to any other claim or interest, or
(C) provide that the defeasance of such Mortgage Loan is subject to
rating confirmation by the Rating Agencies.
(li) No Person has been granted or conveyed the right to
service such Mortgage Loan or receive any consideration in connection
therewith except as contemplated in this Agreement or as has been
terminated.
(lii) To the Seller's knowledge, (A) the related Mortgaged
Property is free and clear of any and all mechanics' and materialmen's
liens that are not bonded or escrowed for, and (B) no rights are
outstanding that under law could give rise to any such lien that would
be prior or equal to the lien of the related Mortgage. The Seller has
not received actual notice with respect to such Mortgage Loan that any
mechanics' and materialmen's liens have encumbered such Mortgaged
Property since origination that have not been released, bonded or
escrowed for.
(liii) The Due Date for each Mortgage Loan is scheduled to
be the first day, the first business day, the sixth day or the eleventh
day of the month.
(liv) Subject only to Permitted Encumbrances (which
Permitted Encumbrances do not, individually or in the aggregate,
materially and adversely interfere with the benefits of the security
intended to be provided by the related Mortgage, materially and
adversely interfere with the current use or operation of the related
Mortgaged Property or materially and adversely affect the value or
marketability of such Mortgaged Property or the ability of the related
Mortgagor to timely pay in full the principal and interest on the
related Mortgage Note), the related Assignment of Leases set forth in
or separate from the related Mortgage and delivered in connection with
such Mortgage Loan establishes and creates a valid and, subject only to
the exceptions in paragraph (vii) above, enforceable first priority
lien and first priority security interest in the related Mortgagor's
interest in all leases, subleases, licenses or other agreements
pursuant to which any Person is entitled to occupy, use or possess all
or any portion of the related Mortgaged Property subject to the related
Mortgage, and each assignor thereunder has the full right to assign the
same. The related Mortgage or such Assignment of Leases provides for
the appointment of a receiver for rents, or allows the mortgagee to
enter into possession to collect rents or provides for rents to be paid
directly to the mortgagee in the event of a default.
(lv) To the Seller's knowledge, the related Mortgagor is a
Person formed or incorporated in a jurisdiction within the United
States.
(lvi) RESERVED.
<PAGE>
(lvii) If such Mortgage Loan has a Cut-off Date Balance of
$15 million or more and is identified on Schedule III-lvii hereto, an
entity (or individual) other than the related Mortgagor has agreed to
be jointly and severally liable with the related Mortgagor for all
liabilities, costs, losses, damages, expenses or claims suffered or
incurred by the mortgagee under such Mortgage Loan by reason of or in
connection with and to the extent of (A) any intentional fraud or
material intentional misrepresentation by the related Mortgagor and (B)
any breach on the part of the related Mortgagor of any environmental
representations, warranties and covenants contained in the related
Mortgage Loan documents; provided that, instead of any breach described
in clause (B) of this paragraph, such entity (or individual) may
instead cover liabilities, costs, losses, damages, expenses and claims
resulting from a breach of the obligations and indemnities of the
related Mortgagor under the related Mortgage Loan documents relating to
hazardous or toxic substances, radon or compliance with environmental
laws.
(lviii) if such Mortgage Loan has a Cut-off Date Balance of
$15 million or more and is identified on Schedule [ ] hereto as having
a "hard lock-box account", (A) the related lock-box account was
established as of the Closing Date, (B) the related lock-box account is
under the control of the mortgagee or its designee, and (C) either the
tenants or the property manager of the related Mortgaged Property remit
payments directly to such lock-box account.
(lix) An appraisal of the related Mortgaged Property was
conducted in connection with the origination of such Mortgage Loan, and
such appraisal satisfied either (A) the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the
Appraisal Standards Board of the Appraisal Foundation, or (B) the
guidelines in Title XI of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, in either case as in effect on the date
such Mortgage Loan was originated.
<PAGE>
EXCEPTIONS TO MORTGAGE LOAN SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties
contained in Exhibit A corresponding to the roman numerals listed below:
(xiii): Loan No. 95, Cartwheel Lodge of Gonzales - This representation
is true and accurate except that the insurance policies
described in clauses (A), (B) and (C) of this representation
are required to be maintained with insurance companies having
"financial strength" or "claims paying ability" ratings of at
least "A:V" from A.M. Best Company or at least "BB" from a
nationally recognized statistical agency.
(xx): Loan No. 82, Northwend Shopping Center - This representation
is true and accurate except that the environmental site
assessment was performed prior to the 12-month period
preceding the Cut-off Date.
Loan No. 92, South Pointe Shopping Center - This
representation is true and accurate except that the
environmental site assessment was performed prior to the
12-month period preceding the Cut-off Date.
Loan No. 93, Willow Creek Apartments - This representation is
true and accurate except that the environmental site
assessment was performed prior to the 12-month period
preceding the Cut-off Date.
Loan No. 167, Oak Park Apartments - This representation is
true and accurate except that the environmental site
assessment was performed prior to the 12-month period
preceding the Cut-off Date.
(xlii): Loan No. 1, Westfield Shoppingtown South Shore - This
representation is true and accurate except that the
engineering assessment was performed prior to the 12-month
period preceding the Cut-off Date.
Loan No. 82, Northwend Shopping Center - This representation
is true and accurate except that the engineering assessment
was performed prior to the 12-month period preceding the
Cut-off Date.
Loan No. 92, South Pointe Shopping Center - This
representation is true and accurate except that the
engineering assessment was performed prior to the 12-month
period preceding the Cut-off Date.
Loan No. 93, Willow Creek Apartments - This representation is
true and accurate except that the engineering assessment was
performed prior to the 12-month period preceding the Cut-off
Date.
<PAGE>
Loan No. 167, Oak Park Apartments - This representation is
true and accurate except that the engineering assessment was
performed prior to the 12-month period preceding the Cut-off
Date.
