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Exhibit 4.1
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SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
as Depositor,
MIDLAND LOAN SERVICES, INC.
as Master Servicer,
LENNAR PARTNERS, INC.
as Special Servicer,
WELLS FARGO BANK MINNESOTA, N.A.
as Trustee,
and
LASALLE BANK NATIONAL ASSOCIATION
as Certificate Administrator and as Tax Administrator,
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2000
$914,661,060
Commercial Mortgage Pass-Through Certificates
Series 2000-C3
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN CALCULATIONS IN RESPECT OF
THE MORTGAGE POOL
SECTION 1.01. Defined Terms .................................................... 3
SECTION 1.02. General Interpretive Principles .................................. 57
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool ............. 58
SECTION 1.04. Cross-Collateralized Mortgage Loans .............................. 60
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE
OF REMIC I REGULAR INTERESTS, REMIC II REGULAR INTERESTS, REMIC III REGULAR
INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans ..................................... 61
SECTION 2.02. Acceptance of Mortgage Assets by Trustee ......................... 64
SECTION 2.03. Certain Repurchases of Mortgage Loans by the Originators ......... 66
SECTION 2.04. Representations and Warranties of the Depositor .................. 69
SECTION 2.05. Representations and Warranties of the Master Servicer ............ 71
SECTION 2.06. Representations and Warranties of the Special Servicer ........... 72
SECTION 2.07. Representations and Warranties of the Trustee .................... 74
SECTION 2.08. Representations and Warranties of LaSalle as Certificate
Administrator and Tax Administrator .............................. 75
SECTION 2.09. Designation of the Certificates .................................. 77
SECTION 2.10. Creation of REMIC I; Issuance of the REMIC I Regular Interests
and the REMIC I Residual Interest; Certain Matters Involving
REMIC I and the Loan REMICs ...................................... 78
SECTION 2.11. Conveyance of REMIC I Regular Interests; Acceptance of REMIC I
Regular Interests by Trustee ..................................... 81
SECTION 2.12. Creation of REMIC II; Issuance of the REMIC II Regular
Interests and the REMIC II Residual Interest; Certain Matters
Involving REMIC II ............................................... 81
SECTION 2.13. Conveyance of REMIC II Regular Interests; Acceptance of REMIC II
Regular Interests by Trustee ..................................... 84
SECTION 2.14. Creation of REMIC III; Issuance of the REMIC III Regular Interest
Certificates and the REMIC III Residual Interest; Certain Matters
Involving REMIC III .............................................. 84
SECTION 2.15. Acceptance of Grantor Trusts by Trustee; Issuance of the Class
Y and Class R Certificates ....................................... 88
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans ............................. 89
SECTION 3.02. Collection of Mortgage Loan Payments ............................. 90
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts ....................................... 90
SECTION 3.04. Collection Account, Distribution Account, Interest Reserve
Account and Gain on Sale Reserve Fund ............................ 93
SECTION 3.05. Permitted Withdrawals From the Collection Account, the
Distribution Account, the Interest Reserve Account and the Gain
on Sale Reserve Fund ............................................. 96
SECTION 3.06. Investment of Funds in the Collection Account, Servicing
Accounts, Reserve Accounts and the REO Account ................... 100
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage ................................................ 102
SECTION 3.08. Enforcement of Alienation Clauses ................................ 106
SECTION 3.09. Realization Upon Defaulted Mortgage Loans ........................ 107
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files .................. 110
SECTION 3.11. Master Servicing and Special Servicing Compensation; Interest
on and Reimbursement of Servicing Advances; Payment of Certain
Expenses; Obligations of the Trustee and any Fiscal Agent
regarding Back-up Servicing Advances ............................. 111
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports ...................................... 117
SECTION 3.13. Annual Statement as to Compliance ................................ 121
SECTION 3.14. Reports by Independent Public Accountants ........................ 122
SECTION 3.15. Access to Certain Information .................................... 123
SECTION 3.16. Title to REO Property; REO Account ............................... 123
SECTION 3.17. Management of REO Property ....................................... 125
SECTION 3.18. Sale of Mortgage Loans and REO Properties ........................ 127
SECTION 3.19. Additional Obligations of Master Servicer and the Special
Servicer ......................................................... 131
SECTION 3.20. Modifications, Waivers, Amendments and Consents .................. 135
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping ......................................... 139
SECTION 3.22. Sub-Servicing Agreements ......................................... 140
SECTION 3.23. Controlling Class Representative ................................. 142
SECTION 3.24. Certain Rights and Powers of the Controlling Class Representative 144
SECTION 3.25. Application of Default Interest .................................. 146
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions .................................................... 148
SECTION 4.02. Statements to Certificateholders; Certain Other Reports .......... 155
SECTION 4.03. P&I Advances ..................................................... 157
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses . 159
SECTION 4.05. Calculations ..................................................... 160
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates ................................................. 162
SECTION 5.02. Registration of Transfer and Exchange of Certificates ............ 162
SECTION 5.03. Book-Entry Certificates .......................................... 169
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates ................ 170
SECTION 5.05. Persons Deemed Owners ............................................ 171
SECTION 5.06. Certification by Certificate Owners .............................. 171
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer and the Special
Servicer ......................................................... 172
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the Master
Servicer or the Special Servicer ................................. 172
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicer,
and the Special Servicer ......................................... 172
SECTION 6.04. Master Servicer and Special Servicer Not to Resign ............... 173
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the Master
Servicer and the Special Servicer ................................ 174
SECTION 6.06. Designation of Special Servicer by the Controlling Class ......... 175
SECTION 6.07. Master Servicer or Special Servicer as Owner of a Certificate .... 176
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default ................................................ 177
SECTION 7.02. Trustee to Act; Appointment of Successor ......................... 180
SECTION 7.03. Notification to Certificateholders ............................... 181
SECTION 7.04. Waiver of Events of Default ...................................... 181
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default ............. 181
ARTICLE VIII
THE TRUSTEE, CERTIFICATE ADMINISTRATOR AND TAX ADMINISTRATOR
SECTION 8.01. Duties of Trustee, the Certificate Administrator and the Tax
Administrator .................................................... 183
SECTION 8.02. Certain Matters Affecting the Trustee, the Certificate
Administrator and the Tax Administrator .......................... 185
SECTION 8.03. Trustee, the Fiscal Agent, the Certificate Administrator and the
Tax Administrator not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans ................................... 187
SECTION 8.04. Trustee, Fiscal Agent, Certificate Administrator and Tax
Administrator May Own Certificates ............................... 187
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SECTION 8.05. Fees and Expenses of Trustee, the Certificate Administrator and
the Tax Administrator; Indemnification of and by Trustee, the
Certificate Administrator, the Tax Administrator and Fiscal Agent 188
SECTION 8.06. Eligibility Requirements for Trustee, Certificate Administrator
and Tax Administrator ............................................ 189
SECTION 8.07. Resignation and Removal of Trustee, Certificate Administrator
and Tax Administrator ............................................ 190
SECTION 8.08. Successor Trustee, Certificate Administrator and Tax Administrator 192
SECTION 8.09. Merger or Consolidation of Trustee, Certificate Administrator or
Tax Administrator ................................................ 192
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee .................... 193
SECTION 8.11. Appointment of Custodians ........................................ 194
SECTION 8.12. Access to Certain Information .................................... 194
SECTION 8.13. Appointment of Fiscal Agent ...................................... 196
SECTION 8.14. Advance Security Arrangement ..................................... 197
SECTION 8.15. Filings with the Securities and Exchange Commission .............. 198
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans . 201
SECTION 9.02. Additional Termination Requirements .............................. 203
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration ............................................... 205
SECTION 10.02. Depositor, Master Servicer, Special Servicer, Trustee and Fiscal
Agent to Cooperate with Tax Administrator ........................ 208
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment ........................................................ 210
SECTION 11.02. Recordation of Agreement; Counterparts ........................... 211
SECTION 11.03. Limitation on Rights of Certificateholders ....................... 211
SECTION 11.04. Governing Law .................................................... 212
SECTION 11.05. Notices .......................................................... 212
SECTION 11.06. Severability of Provisions ....................................... 213
SECTION 11.07. Successors and Assigns; Beneficiaries ............................ 213
SECTION 11.08. Article and Section Headings ..................................... 213
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor ........ 214
SECTION 11.10. Notices to Controlling Class Representative ...................... 215
SECTION 11.11. Complete Agreement ............................................... 215
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EXHIBITS
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EXHIBIT A-1 Form of Class X Certificates
EXHIBIT A-2 Form of Class A-1 and Class A-2 Certificates
EXHIBIT A-3 Form of Class B, Class C, Class D, Class E and Class F Certificates
EXHIBIT A-4 Form of Class G Certificates
EXHIBIT A-5 Form of Class H, Class J, Class K, Class L, Class M, Class N and
Class P Certificates
EXHIBIT A-6 Form of Class Y Certificates
EXHIBIT A-7 Form of Class R Certificates
EXHIBIT B-1A Schedule of SBRC Mortgage Loans
EXHIBIT B-1B Schedule of GCFP Mortgage Loans
EXHIBIT B-1C Schedule of AMCC Mortgage Loans
EXHIBIT B-1D Schedule of LaSalle Mortgage Loans
EXHIBIT B-1E Schedule of Mortgage Loans held by Loan REMICs
EXHIBIT B-1F Schedule of Environmentally Insured Mortgage Loans
EXHIBIT B-1G Schedule of Mortgage Loans with Cut-off Date Principal Balances of $15,000,000
or more that do not provide for Rating Agency Confirmation Regarding Waiver
of Due-on-Sale Clauses
EXHIBIT B-1H Schedule of Mortgage Loans as to which 50% of Assumption Fees are Payable to
Sub-Servicers
EXHIBIT B-1I Schedule of Primary Serviced Mortgage Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT B-4 Form of Notice and Certification Regarding Defeasance of Mortgage Loan for
loans having balance of (a) $5,000,000 or less, or (b) less than 1% of
outstanding pool balance, whichever is less
EXHIBIT C-1 Letters of Representations among Depositor, Certificate Administrator and
initial Depository
EXHIBIT C-2 Form of ABC Support Letter Relating to AMCC Mortgage Loan Purchase Agreement
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E Form of Distribution Date Statement
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of Non-Registered Certificates
Held in Physical Form
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of Non-Registered Certificates
Held in Physical Form
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Non-Registered Certificates
Held in Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Non-Registered Certificates
Held in Physical Form
EXHIBIT F-2C Form I of Transferee Certificate for Transfers of Interests in Class X or
Class G Certificates Held in Book-Entry Form
EXHIBIT F-2D Form II of Transferee Certificate for Transfers of Interests in Class X or
Class G Certificates Held in Book-Entry Form
EXHIBIT F-3A Form of Transferor Certificate for Transfer of the Excess Servicing Fee Right
EXHIBIT F-3B Form of Transferee Certificate for Transfer of the Excess Servicing Fee Right
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA (Definitive Non-Registered
and Non-Investment Grade Certificates)
EXHIBIT G-2 Form of Transferee Certificate in connection with ERISA (Book-Entry Class X and
Class G Certificates)
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EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of Class R Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K Calculation of Net Operating Income
EXHIBIT L-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT L-2 Information Request from Prospective Investor
EXHIBIT M-1 Form of SBRC Mortgage Loan Purchase Agreement
EXHIBIT M-2 Form of GCFP Mortgage Loan Purchase Agreement
EXHIBIT M-3 Form of AMCC Mortgage Loan Purchase Agreement
EXHIBIT M-4 Form of LaSalle Mortgage Loan Purchase Agreement
EXHIBIT N Schedule of Designated Sub-Servicers
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This Pooling and Servicing Agreement, is dated and effective
as of December 1, 2000, among SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. as
Depositor, MIDLAND LOAN SERVICES, INC. as Master Servicer, LENNAR PARTNERS, INC.
as Special Servicer, WELLS FARGO BANK MINNESOTA, N.A. as Trustee and LASALLE
BANK NATIONAL ASSOCIATION as Certificate Administrator and as Tax Administrator.
PRELIMINARY STATEMENT:
Salomon Brothers Realty Corp. (together with its successors in
interest, "SBRC") has sold, in its capacity as a Mortgage Loan Seller (as
defined herein), to Salomon Brothers Mortgage Securities VII, Inc. (together
with its successors in interest, the "Depositor"), pursuant to the Mortgage Loan
Purchase Agreement dated as of December 12, 2000 (as such may from time to time
hereafter be amended, modified, supplemented and/or restated, the "SBRC Mortgage
Loan Purchase Agreement"), between SBRC and the Depositor, those mortgage loans
initially identified on the schedule attached hereto as Exhibit B-1A (such
mortgage loans, the "SBRC Mortgage Loans"). A form of the SBRC Mortgage Loan
Purchase Agreement is attached hereto as Exhibit M-1.
Greenwich Capital Financial Products, Inc. (together with its
successors in interest, "GCFP") has sold, in its capacity as a Mortgage Loan
Seller (as defined herein), to the Depositor, pursuant to the Mortgage Loan
Purchase Agreement dated as of December 12, 2000 (as such may from time to time
hereafter be amended, modified, supplemented and/or restated, the "GCFP Mortgage
Loan Purchase Agreement"), between GCFP and the Depositor, those mortgage loans
initially identified on the schedule attached hereto as Exhibit B-1B (such
mortgage loans, the "GCFP Mortgage Loans"). A form of the GCFP Mortgage Loan
Purchase Agreement is attached hereto as Exhibit M-2.
Artesia Mortgage Capital Corporation (together with its
successors in interest, "AMCC") has sold, in its capacity as a Mortgage Loan
Seller (as defined herein), to the Depositor, pursuant to the Mortgage Loan
Purchase Agreement dated as of December 12, 2000 (as such may from time to time
hereafter be amended, modified, supplemented and/or restated, the "AMCC Mortgage
Loan Purchase Agreement"), between AMCC and the Depositor, those mortgage loans
initially identified on the schedule attached hereto as Exhibit B-1C (such
mortgage loans, the "AMCC Mortgage Loans"). A form of the AMCC Mortgage Loan
Purchase Agreement is attached hereto as Exhibit M-3.
LaSalle Bank National Association (together with its
successors in interest, "LaSalle") has sold, in its capacity as a Mortgage Loan
Seller (as defined herein), to the Depositor, pursuant to the Mortgage Loan
Purchase Agreement dated as of December 12, 2000 (as such may from time to time
hereafter be amended, modified, supplemented and/or restated, the "LaSalle
Mortgage Loan Purchase Agreement"), between LaSalle and the Depositor, those
mortgage loans initially identified on the schedule attached hereto as Exhibit
B-1D (such mortgage loans, the "LaSalle Mortgage Loans"). A form of the LaSalle
Mortgage Loan Purchase Agreement is attached hereto as Exhibit M-4.
The Depositor desires, among other things, to: (i) establish a
trust fund, consisting primarily of the SBRC Mortgage Loans, the GCFP Mortgage
Loans, the AMCC Mortgage Loans
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and the LaSalle Mortgage Loans and certain related rights, funds and property;
(ii) cause the issuance of mortgage pass-through certificates in multiple
classes, which certificates will, in the aggregate, evidence the entire
beneficial ownership interest in such trust fund; and (iii) provide for the
servicing and administration of the mortgage loans and other assets that from
time to time constitute part of such trust fund.
Wells Fargo Bank Minnesota, N.A. (together with its successors
in interest, "Wells Fargo") desires to act as "Trustee" hereunder; LaSalle
desires to act as "Certificate Administrator" and as "Tax Administrator"
hereunder; Midland Loan Services, Inc. (together with its successors in
interest, "Midland") desires to act as "Master Servicer" hereunder; and Lennar
Partners, Inc. (together with its successors in interest, "Lennar") desires to
act as "Special Servicer" hereunder.
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Section 1.01, subject to modification in accordance with
Section 1.04.
"30/360 Basis" shall mean the accrual of interest calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan" shall mean a Mortgage Loan that accrues
interest on a 30/360 Basis.
"ABC" shall mean Artesia Banking Corporation or its successor
in interest.
"ABC Support Letter" shall mean the Letter Agreement dated as
of December 12, 2000, from ABC to the Depositor and the Trustee, whereby ABC
makes certain covenants relating to AMCC and AMCC's obligations under the AMCC
Mortgage Loan Purchase Agreement. Any repurchase of an AMCC Mortgage Loan by ABC
pursuant to the ABC Support Letter shall constitute a purchase/repurchase of
that Mortgage Loan on behalf of AMCC as contemplated by the AMCC Mortgage Loan
Purchase Agreement.
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its successor in
interest.
"Acquisition Date" shall mean, with respect to any REO
Property, the first day on which such REO Property is considered to be acquired
by the Trust within the meaning of Treasury regulation Section 1.856-6(b)(1),
which is the first day on which the Trust is treated as the owner of such REO
Property for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest
calculated on the basis of the actual number of days elapsed during any calendar
month (or other applicable recurring accrual period) in a year assumed to
consist of 360 days.
"Actual/360 Mortgage Loan" shall mean a Mortgage Loan that
accrues interest on an Actual/360 Basis.
"Additional Collateral" shall mean any non-real property
collateral (including any Letter of Credit, Reserve Funds and Escrow Payments)
pledged and/or delivered by the related Borrower and held by the mortgagee to
secure payment on any Mortgage Loan.
"Additional Master Servicing Compensation" shall have the
meaning assigned thereto in Section 3.11(b).
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"Additional Special Servicing Compensation" shall have the
meaning assigned thereto in Section 3.11(d).
"Additional Trust Fund Expense" shall mean any expense
incurred with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss that would result in the Holders of any Class of
REMIC III Regular Interest Certificates receiving less than the total of their
Current Interest Distribution Amount, Carryforward Interest Distribution Amount
and Principal Distribution Amount for any Distribution Date.
"Additional Yield Amount" shall have the meaning assigned
thereto in Section 4.01(d).
"Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to REMIC II Regular Interest A-1, for
any Interest Accrual Period, 6.341% per annum;
(b) with respect to REMIC II Regular Interest A-2, for
any Interest Accrual Period, 6.592% per annum;
(c) with respect to REMIC II Regular Interest B, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 6.758% per annum;
(d) with respect to REMIC II Regular Interest C, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 6.906% per annum;
(e) with respect to REMIC II Regular Interest D, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 7.204% per annum;
(f) with respect to REMIC II Regular Interest E, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 7.517% per annum;
(g) with respect to REMIC II Regular Interest F, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 7.595% per annum;
(h) with respect to REMIC II Regular Interest G, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) 8.090% per annum; and
(i) with respect to each of REMIC II Regular Interests H,
J, K, L, M, N and P, for any Interest Accrual Period, 7.000% per annum.
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"Administrative Fee Rate" shall mean, with respect to each
Mortgage Loan (and any successor REO Mortgage Loan), the sum of the related
Master Servicing Fee Rate, the Trustee Fee Rate and the Certificate
Administrator's Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Advance Interest" shall mean the interest accrued on any
Advance at the Reimbursement Rate, which is payable to the party hereto that
made that Advance, all in accordance with Section 3.11(g) or Section 4.03(d), as
applicable.
"Advance Security Arrangement" shall have the meaning assigned
thereto in Section 8.14.
"Adverse Grantor Trust Event" shall mean either: (i) any
impairment of the status of either Grantor Trust Pool as a Grantor Trust; or
(ii) the imposition of a tax upon either Grantor Trust Pool or any of its assets
or transactions.
"Adverse Rating Event" shall mean, with respect to any Class
of Rated Certificates and each Rating Agency that has assigned a rating thereto,
as of any date of determination, the qualification, downgrade or withdrawal of
the rating then assigned to such Class of Rated Certificates by such Rating
Agency (or the placing of such Class of Rated Certificates on negative credit
watch status in contemplation of any such action with respect thereto).
"Adverse REMIC Event" shall mean either: (i) any impairment of
the status of any REMIC Pool as a REMIC; or, (ii) except as permitted by Section
3.17(a) the imposition of a tax upon any REMIC Pool or any of its assets or
transactions (including the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions set forth in Section 860G(d)
of the Code).
"Affiliate" shall mean, with respect to any specified Person,
any other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement,
as it may be amended, modified, supplemented or restated following the Closing
Date.
"A.M. Best" shall mean A.M. Best Company or its successor in
interest.
"AMCC" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"AMCC Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
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"AMCC Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
"Annual Accountants' Report" shall have the meaning assigned
thereto in Section 3.14.
"Annual Performance Certification" shall have the meaning
assigned thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any
ARD Loan, the date specified in the related Mortgage Note, as of which Post-ARD
Additional Interest shall begin to accrue on such Mortgage Loan, which date is
prior to the Stated Maturity Date for such Mortgage Loan.
"Appraisal" shall mean, with respect to any Mortgaged Property
or REO Property as to which an appraisal is required to be performed pursuant to
the terms of this Agreement, a narrative appraisal complying with USPAP (or, in
the case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal
Balance as of the date of such appraisal of $2,000,000 or less, at the Special
Servicer's option, either a limited appraisal and a summary report or an
internal valuation prepared by the Special Servicer) that (i) indicates the
"market value" of the subject property (within the meaning of 12 CFR Section
225.62(g)) and (ii) is conducted by a Qualified Appraiser (except that, in the
case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance
as of the date of such appraisal of $2,000,000 or less, at the Special
Servicer's option, the appraiser may be an employee of the Special Servicer).
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated by the Special Servicer as of the
Determination Date immediately following the later of the date on which the most
recent relevant Appraisal acceptable for purposes of Section 3.19(c) hereof was
obtained or conducted by the Special Servicer pursuant to this Agreement and the
date of the most recent Appraisal Trigger Event with respect to such Required
Appraisal Loan) equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such
Required Appraisal Loan as of such Determination Date, (b) to the
extent not previously advanced by or on behalf of the Master Servicer,
the Trustee or any Fiscal Agent, all unpaid interest (net of Default
Interest and, in the case of an ARD Loan after its Anticipated
Repayment Date, Post-ARD Additional Interest) accrued on such Required
Appraisal Loan through the most recent Due Date prior to such
Determination Date, (c) all unpaid Special Servicing Fees accrued in
respect of such Required Appraisal Loan, (d) all related unreimbursed
Advances made by or on behalf of the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent in respect of such Required
Appraisal Loan, together with all unpaid Advance Interest accrued on
such Advances, and (e) to the extent that neither the Master Servicer
nor the Special Servicer holds Escrow Payments sufficient to cover the
same, all currently due but unpaid real estate taxes and assessments,
insurance premiums and, if applicable, ground rents in respect of the
related Mortgaged Property or REO Property; over
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(2) the sum of (x) the excess, if any, of (i) 90% of the
Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by the most recent relevant Appraisal
acceptable for purposes of Section 3.19(c) hereof, over (ii) the amount
of any obligation(s) secured by any liens on such Mortgaged Property or
REO Property, as applicable, that are prior to the lien of the Required
Appraisal Loan, (y) any Escrow Payments and Reserve Funds held by the
Master Servicer or the Special Servicer with respect to such Required
Appraisal Loan that (i) are not required to be applied to pay real
estate taxes and assessments, insurance premiums or ground rents, (ii)
may be used to reduce the principal balance of the Required Appraisal
Loan, and (iii) are not scheduled to be applied within the next 12
months, and (z) the amount of any Letter of Credit that constitutes
additional security for the Required Appraisal Loan that may be used to
reduce the principal balance thereof.
Notwithstanding the foregoing, if (i) an Appraisal Trigger
Event occurs with respect to any Mortgage Loan, (ii) either (A) no Appraisal (or
update to an Appraisal) has been obtained or conducted, as applicable, in
accordance with Section 3.19(c), with respect to the related Mortgaged Property
or REO Property, as the case may be, during the 12-month period prior to the
date of such Appraisal Trigger Event or (B) there shall have occurred since the
date of the most recent Appraisal (or update to an Appraisal) a material change
in the circumstances surrounding the related Mortgaged Property or REO Property,
as the case may be, that would, in the Special Servicer's judgment, materially
affect the value of the property, and (iii) no new Appraisal is obtained or
conducted, as applicable in accordance with Section 3.19(c), within 60 days
after such Appraisal Trigger Event, then (x) until such new Appraisal is
obtained or conducted, as applicable in accordance with Section 3.19(c), the
Appraisal Reduction Amount shall equal 25% of the Stated Principal Balance of
such Required Appraisal Loan, and (y) upon receipt or performance, as applicable
in accordance with Section 3.19(c), of such Appraisal by the Special Servicer,
the Appraisal Reduction Amount for such Required Appraisal Loan will be
recalculated by the Special Servicer in accordance with the preceding sentence
of this definition. In connection with the foregoing, each Cross-Collateralized
Mortgage Loan that is part of a single Cross-Collateralized Group shall be
treated separately for purposes of calculating an Appraisal Reduction Amount.
"Appraisal Trigger Event" shall mean, with respect to any
Mortgage Loan, any of the following events:
(i) such Mortgage Loan becomes a Modified Mortgage Loan,
including by reason of an extension;
(ii) the Borrower under such Mortgage Loan becomes the
subject of bankruptcy, insolvency or similar proceedings and those
proceedings remain undismissed and undischarged for 60 days;
(iii) either (A) any Monthly Payment with respect to such
Mortgage Loan remains unpaid for 60 days past the Due Date for such
payment or (B) any other material payment due under the related
Mortgage Loan documents remains unpaid for 60 days past the date on
which that payment was first required to be made;
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(iv) a receiver is appointed with respect to the related
Mortgaged Property and continues in such capacity for 60 days; or
(v) the related Mortgaged Property becomes an REO
Property.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or REO Property, the appraised value thereof (as is) based upon the
most recent Appraisal obtained or conducted, as appropriate, pursuant to this
Agreement; provided, however, that, for purposes of this Agreement, no party
hereto may rely on an Appraisal that is more than 12 months old (it being
understood and agreed that this provision is not intended by itself to impose
any separate obligation on any party hereto to periodically update Appraisals).
"ARD Loan" shall mean a Mortgage Loan that provides for the
accrual of Post-ARD Additional Interest thereon if such Mortgage Loan is not
paid in full on or prior to its Anticipated Repayment Date.
"Assignment of Leases" shall mean, with respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
document or instrument executed by the related Borrower in connection with the
origination of the related Mortgage Loan, as such assignment may be amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment" shall mean:
(a) with respect to any Balloon Mortgage Loan that is
delinquent in respect of its Balloon Payment beyond the Determination
Date immediately following its scheduled maturity date (as such date
may be extended in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or by reason of a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20), for that scheduled maturity date
and for each subsequent Due Date as of which such Mortgage Loan remains
outstanding and part of the Trust Fund (but on which no Monthly Payment
is scheduled to be due in respect of such Mortgage Loan, other than the
delinquent Balloon Payment), the scheduled monthly payment of principal
and/or interest deemed to be due with respect to such Mortgage Loan on
such Due Date equal to the amount that would have been due in respect
thereof on such Due Date (other than any Default Interest) if such
Mortgage Loan had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule (if any), in effect immediately prior to, and
without regard to the occurrence of, such maturity date; and
(b) with respect to any REO Mortgage Loan, for any Due
Date as of which the related REO Property remains part of the Trust
Fund, the scheduled monthly payment of principal and/or interest deemed
to be due in respect thereof on such Due Date equal to the Monthly
Payment (or, in the case of a Balloon Mortgage Loan described in clause
(a) of this definition, the Assumed Monthly Payment) that was due (or
deemed due) in respect of the related Mortgage Loan on the last Due
Date prior to its becoming an REO Mortgage Loan.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization
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schedule extending beyond its Stated Maturity Date and as to which, in
accordance with such terms, a Balloon Payment is due on its Stated Maturity
Date.
"Balloon Payment" shall mean any Monthly Payment payable on a
Mortgage Loan at scheduled maturity that (i) is at least three times as large as
the normal Monthly Payment due on such Mortgage Loan and (ii) includes a
principal component equal to at least 5% of the original principal balance of
such Mortgage Loan.
"Bankruptcy Code" shall mean the federal Bankruptcy Code, as
amended from time to time (Title 11 of the United States Code).
"Base Prospectus" shall mean that certain prospectus dated
December 12, 2000, relating to trust funds established by the Depositor and
publicly offered mortgage pass-through certificates evidencing interests
therein.
"Book-Entry Certificate" shall mean any Certificate registered
in the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate registered in the name of the Depository or its
nominee.
"Borrower" shall mean the obligor or obligors on a Mortgage
Note, including any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note.
"Breach" shall mean, with respect to any Mortgage Loan, any
breach of a representation or warranty made by a Mortgage Loan Seller pursuant
to Section 4(b) of the related Mortgage Loan Purchase Agreement.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New York, the city or
cities in which the Primary Servicing Offices of the Master Servicer and the
Special Servicer are located, Pittsburgh, Pennsylvania or any other city in
which the Collection Account is maintained, or the cities in which the Corporate
Trust Offices of the Trustee and the Certificate Administrator are located, are
authorized or obligated by law or executive order to remain closed.
"Carryforward Interest Distribution Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any
Distribution Date, have the meaning assigned thereto in Section
2.10(g);
(b) with respect to any REMIC II Regular Interest, for
any Distribution Date, have the meaning assigned thereto in Section
2.12(g); and
(c) with respect to any Class of REMIC III Regular
Interest Certificates, for any Distribution Date, have the meaning
assigned thereto in Section 2.14(g);
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"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the Depositor's Commercial
Mortgage Pass-Through Certificates, Series 2000-C3, as executed, authenticated
and delivered hereunder by the Certificate Registrar on behalf of the Trustee.
"Certificate Administrator" shall mean LaSalle, in its
capacity as certificate administrator hereunder, or any successor certificate
administrator appointed as herein provided.
"Certificate Administrator's Fee" shall mean, with respect to
any Mortgage Loan or REO Mortgage Loan, the fee designated as such and payable
to the Certificate Administrator pursuant to Section 8.05(a).
"Certificate Administrator's Fee Rate" shall mean 0.0013% per
annum.
"Certificate Factor" shall mean, with respect to any Class of
REMIC III Regular Interest Certificates, as of any date of determination, a
fraction, expressed as a decimal carried to eight places, the numerator of which
is the related Class Principal Balance or Class Notional Amount, as the case may
be, then outstanding, and the denominator of which is the related Class
Principal Balance or Class Notional Amount, as the case may be, outstanding as
of the Closing Date.
"Certificateholder" or "Holder" shall mean the Person in whose
name a Certificate is registered in the Certificate Register, provided, however,
that: (i) neither a Disqualified Organization nor a Non-United States Person
shall be a "Holder" of, or a "Certificateholder" with respect to, a Class R
Certificate for any purpose hereof; and (ii) solely for purposes of giving any
consent, approval, direction or waiver pursuant to this Agreement that
specifically relates to the rights, duties and/or obligations hereunder of any
of the Depositor, the Master Servicer, the Special Servicer, the Tax
Administrator, the Certificate Administrator, the Trustee or any Fiscal Agent in
its respective capacity as such (other than any consent, approval or waiver
contemplated by any of Sections 3.23, 3.24 and 6.06), any Certificate registered
in the name of such party or in the name of any Affiliate thereof shall be
deemed not to be outstanding, and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the requisite percentage
of Voting Rights necessary to effect any such consent, approval or waiver that
specifically relates to such party has been obtained. The Certificate Registrar
shall be entitled to request and conclusively rely upon a certificate of the
Depositor, the Master Servicer or the Special Servicer in determining whether a
Certificate is registered in the name of an Affiliate of such Person. All
references herein to "Certificateholders" or "Holders" shall reflect the rights
of Certificate Owners only insofar as they may indirectly exercise such rights
through the Depository and the Depository Participants (except as otherwise
specified herein), it being herein acknowledged and agreed that the parties
hereto shall be required to recognize as a "Certificateholder" or "Holder" only
the Person in whose name a Certificate is registered in the Certificate
Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution Date Statement and the CMSA Investor Reporting Package (excluding
the Loan Set-Up File).
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"Certificate Notional Amount" shall mean, with respect to any
Class X Certificate, as of any date of determination, the then notional
principal amount on which such Certificate accrues interest, equal to the
product of (a) the then Certificate Factor for the Class X Certificates,
multiplied by (b) the amount specified on the face of such Certificate as the
initial Certificate Notional Amount thereof.
"Certificate Owner" shall mean, with respect to any Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to
any Principal Balance Certificate, as of any date of determination, the then
outstanding principal amount of such Certificate equal to the product of (a) the
then Certificate Factor for the Class of Principal Balance Certificates to which
such Certificate belongs, multiplied by (b) the amount specified on the face of
such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar" shall mean
the register maintained and the registrar appointed or otherwise acting pursuant
to Section 5.02.
"Class" shall mean, collectively, all of the Certificates
bearing the same alphabetical and, if applicable, numerical class designation
and having the same payment terms. The respective Classes of Certificates are
designated in Section 2.09(a).
"Class A Certificate" shall mean any of the Certificates
designated as such in Section 2.09(b).
"Class A-1 Certificate" shall mean any of the Certificates
that collectively constitute the Class bearing the class designation "A-1".
"Class A-2 Certificate" shall mean any of the Certificates
that collectively constitute the Class bearing the class designation "A-2".
"Class B Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "B".
"Class C Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "C".
"Class D Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "D".
"Class E Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "E".
"Class F Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "F".
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"Class G Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "G".
"Class H Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "H".
"Class I Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "I".
"Class J Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "J".
"Class K Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "K".
"Class L Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "L".
"Class M Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "M".
"Class N Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "N".
"Class Notional Amount" shall mean the aggregate hypothetical
or notional amount on which the Class X Certificates (as a collective whole)
accrue interest from time to time, as calculated in accordance with Section
2.14(e).
"Class P Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "P".
"Class Principal Balance" shall mean the aggregate principal
balance outstanding from time to time of any Class of Principal Balance
Certificates, as calculated in accordance with Section 2.14(e).
"Class R Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "R".
"Class X Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "X".
"Class X Portion" shall mean:
(a) when used with respect to the Interest Accrual Amount
in respect of any REMIC II Regular Interest for any Interest Accrual
Period, the portion of such Interest Accrual Amount that is equal to
the product of (i) the entire such Interest Accrual Amount, multiplied
by (ii) a fraction (not less than zero or greater than one), the
numerator of which is the excess, if any, of the REMIC II Remittance
Rate with respect to such REMIC II Regular Interest for such Interest
Accrual Period, over the Adjusted REMIC II Remittance Rate with respect
to such REMIC II
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Regular Interest for such Interest Accrual Period, and the denominator
of which is the REMIC II Remittance Rate with respect to such REMIC II
Regular Interest for such Interest Accrual Period;
(b) when used with respect to the Current Interest
Distribution Amount in respect of any REMIC II Regular Interest for any
Distribution Date, the portion of such Current Interest Distribution
Amount that is equal to (i) the Class X Portion of the Interest Accrual
Amount with respect to such REMIC II Regular Interest for the related
Interest Accrual Period, reduced (to not less than zero) by (ii) the
product of (A) any portion of the Net Aggregate Prepayment Interest
Shortfall for such Distribution Date that is allocable to such REMIC II
Regular Interest in accordance with Section 2.12(g), multiplied by (B)
a fraction, the numerator of which is equal to the Class X Portion of
the Interest Accrual Amount with respect to such REMIC II Regular
Interest for the related Interest Accrual Period, and the denominator
of which is equal to the entire Interest Accrual Amount with respect to
such REMIC II Regular Interest for the related Interest Accrual Period;
and
(c) when used with respect to the Carryforward Interest
Distribution Amount in respect of any REMIC II Regular Interest for any
Distribution Date, the portion of such Carryforward Interest
Distribution Amount that is equal to the excess, if any, of (i) the
aggregate of the Class X Portions of all Current Interest Distribution
Amounts with respect to such REMIC II Regular Interest for all prior
Distribution Dates, if any, over (ii) the aggregate amount of interest
deemed distributed to REMIC III with respect to such REMIC II Regular
Interest on all such prior Distribution Dates, if any, pursuant to the
first two sentences of Section 4.01(k).
"Class Y Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "Y".
"Class Y Sub-Account" shall mean a sub-account of the
Distribution Account established pursuant to Section 3.04(b), which sub-account
shall constitute an asset of the Trust Fund and Grantor Trust Y, but not an
asset of any REMIC Pool.
"Closing Date" shall mean December 19, 2000.
"CMSA" shall mean the Commercial Mortgage Securities
Association, or any association or organization that is a successor thereto. If
neither such association nor any successor remains in existence, "CMSA" shall be
deemed to refer to such other association or organization as may exist whose
principal membership consists of servicers, trustees, issuers, placement agents
and underwriters generally involved in the commercial mortgage loan
securitization industry, which is the principal such association or organization
in the commercial mortgage loan securitization industry and whose principal
purpose is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to
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such other association or organization as shall be selected by the Master
Servicer and reasonably acceptable to the Trustee, the Certificate
Administrator, the Special Servicer and the Controlling Class Representative.
"CMSA Bond Level File" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Bond Level File" available as of the Closing Date
on the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage-backed securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Bond Level File" available
as of the Closing Date on the CMSA Website, is reasonably acceptable to the
Certificate Administrator.
"CMSA Collateral Summary File" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Collateral Summary File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Collateral
Summary File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Certificate Administrator.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Comparative Financial Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Comparative
Financial Status Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable. For the purposes of the production by Master Servicer or the Special
Servicer of any such report that is required to state information with respect
to any Mortgage Loan for any period prior to the Cut-off Date, the Master
Servicer or the Special Servicer, as the case may be, may conclusively rely
(without independent verification) absent manifest error, on information
provided to it by the Seller, by the related Borrower or (x) in the case of such
a report produced by the Master Servicer, by the Special Servicer (if other than
the Master Servicer or an Affiliate thereof) and (y) in the case of such report
produced by the Special Servicer, by the Master Servicer (if other than the
Special Servicer or an Affiliate thereof).
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Delinquent Loan
Status Report" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
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"CMSA Financial File" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "CMSA Financial File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Financial File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Historical Liquidation Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Liquidation Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Historical Liquidation Report" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable, and in any event, setting forth, among other things, as
of the close of business on the Determination Date immediately preceding the
preparation of such report, (i) the aggregate amount of Net Liquidation Proceeds
received, both during the Collection Period ending on such Determination Date
and historically, and (ii) the amount of Realized Losses occurring during the
Collection Period ending on such Determination Date and historically, set forth
on a Mortgage Loan-by-Mortgage Loan and REO Property-by-REO Property basis.
"CMSA Historical Loan Modification Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Loan Modification Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Historical Loan Modification Report" available as of the Closing
Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable, and in any event, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, have
been modified pursuant to this Agreement (i) during the Collection Period ending
on such Determination Date and (ii) since the Closing Date, with a description
of the original and the revised terms thereof.
"CMSA Investor Reporting Package": Collectively: (a) the
following six electronic files: (i) CMSA Loan Set-Up File, (ii) CMSA Loan
Periodic Update File, (iii) CMSA Property File, (iv) CMSA Bond Level File, (v)
CMSA Financial File and (vi) CMSA Collateral Summary File; and (b) the following
eight supplemental reports: (i) CMSA Delinquent Loan Status Report, (ii) CMSA
Historical Loan Modification Report, (iii) CMSA Historical Liquidation Report,
(iv) CMSA REO Status Report, (v) CMSA Operating Statement Analysis Report, (vi)
CMSA Comparative Financial Status Report, (vii) CMSA Servicer Watch List and
(viii) CMSA NOI Adjustment Worksheet.
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"CMSA Loan Periodic Update File" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Loan Periodic Update File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Loan Periodic Update File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable, and the Certificate Administrator.
"CMSA Loan Set-Up File" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "CMSA Loan Set-Up File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "CMSA Loan Set-Up File" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable, and the Certificate
Administrator.
"CMSA NOI Adjustment Worksheet" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "NOI Adjustment Worksheet" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "NOI Adjustment
Worksheet" available as of the Closing Date on the CMSA Website, is acceptable
to the Master Servicer or the Special Servicer, as applicable, and in any event,
shall present the computations made in accordance with the methodology described
in such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report" shall have the
meaning ascribed thereto in Section 3.12(b).
"CMSA Property File" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "CMSA Property File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Property File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA REO Status Report" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "REO Status Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be
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recommended by the CMSA for commercial mortgage-backed securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "REO Status Report" available as
of the Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable, and in any event, including,
with respect to each REO Property that was included in the Trust Fund as of the
close of business on the Determination Date immediately preceding the
preparation of such report, among other things, (i) the Acquisition Date of such
REO Property, (ii) the amount of income collected with respect to such REO
Property (net of related expenses) and other amounts, if any, received on such
REO Property during the related Collection Period and (iii) the value of the REO
Property based on the most recent appraisal or other valuation thereof available
to the Special Servicer as of such Determination Date (including any valuation
prepared internally by the Special Servicer)..
"CMSA Servicer Watch List" shall mean, for any Determination
Date a report substantially in the form of, and containing the information
called for in, the downloadable form of the "Servicer Watch List" available as
of the Closing Date on the CMSA Website, or such other form for the presentation
of such information and containing such additional information as may from time
to time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Servicer Watch
List" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable, and in
any event, which report shall identify all Mortgage Loans that constitute one of
the following types of Mortgage Loans as of such Determination Date: (i) a
Mortgage Loan that has a then current 12-months trailing Debt Service Coverage
Ratio that is less than 1.10x; (ii) a Mortgage Loan as to which any required
inspection of the related Mortgaged Property conducted by the Master Servicer
indicates a problem that the Master Servicer determines can reasonably be
expected to materially adversely affect the cash flow generated by such
Mortgaged Property; (iii) a Mortgage Loan as to which the Master Servicer has
actual knowledge of material damage or waste at the related Mortgaged Property;
(iv) a Mortgage Loan as to which it has come to the Master Servicer's attention
in the performance of its duties under this Agreement (without any expansion of
such duties by reason thereof) that any tenant or tenants collectively occupying
25% or more of the space in the related Mortgaged Property (A) has vacated or
intends to vacate such space (without being replaced by a comparable tenant and
lease) or (B) has declared or intends to declare bankruptcy; or (C) is or are
within six (6) months of its or their respective lease expiration; (v) a
Mortgage Loan that is at least 30 days delinquent in payment; and (vi) a
Mortgage Loan that is within 60 days of maturity. No later than one Business Day
after each Determination Date, the Special Servicer shall provide the Master
Servicer with any information in its possession regarding the Specially Serviced
Mortgage Loans necessary for preparation of the Servicer Watch List that is not
in the possession of the Master Servicer.
"CMSA Website" shall mean the CMSA's Website located, as of
the Closing Date, at "www.cmbs.org" or "www.cssacmbs.org".
"Code" shall mean the Internal Revenue Code of 1986 and
regulations promulgated thereunder, including proposed regulations to the extent
that, by reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
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"Collection Account" shall mean the segregated account or
accounts created and maintained by the Master Servicer pursuant to Section
3.04(a) in trust for the Certificateholders, which shall be entitled "Midland
Loan Services, Inc. [or the name of any successor Master Servicer], as Master
Servicer on behalf of Wells Fargo Bank Minnesota, N.A. [or the name of any
successor Trustee], as Trustee, in trust for the registered holders of Salomon
Brothers Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-C3, Collection Account".
"Collection Period" shall mean, with respect to any
Distribution Date, the period commencing immediately following the Determination
Date in the calendar month preceding the month in which such Distribution Date
occurs (or, in the case of the initial Distribution Date, commencing immediately
following the Closing Date) and ending on and including the Determination Date
in the calendar month in which such Distribution Date occurs.
"Commission" shall mean the Securities and Exchange Commission
or any successor thereto.
"Compensating Interest Payment" shall mean, with respect to
any Distribution Date, any payment made by the Master Servicer pursuant to
Section 3.19(a) to cover Prepayment Interest Shortfalls incurred during the
related Collection Period.
"Condemnation Proceeds" shall mean all cash amounts received
by the Master Servicer or the Special Servicer in connection with the taking of
all or a part of a Mortgaged Property by exercise of the power of eminent domain
or condemnation, exclusive of any portion thereof required to be released to the
related Borrower or any other third party in accordance with applicable law
and/or the terms and conditions of the related Mortgage Note and Mortgage or any
document to which the related Mortgage Note and Mortgage are subject.
"Controlling Class" shall mean, as of any date of
determination, the Class of Principal Balance Certificates with the lowest
payment priority pursuant to Sections 4.01(a) and 4.01(b), that has a then
outstanding Class Principal Balance that is not less than 25% of its initial
Class Principal Balance; provided that, if no Class of Principal Balance
Certificates has a Class Principal Balance that satisfies the foregoing
requirement, then the Controlling Class shall be the Class of Principal Balance
Certificates with the lowest payment priority pursuant to Sections 4.01(a) and
4.01(b), that has a then outstanding Class Principal Balance greater than zero.
For purposes of this definition, the Class A-1 and Class A-2 Certificates shall
be treated as a single Class and, if appropriate under the terms of this
definition, shall collectively constitute the Controlling Class.
"Controlling Class Certificateholder" shall mean any Holder of
Certificates of the Controlling Class.
"Controlling Class Representative" shall have the meaning
assigned thereto in Section 3.23(a).
"Corporate Trust Office" shall mean the principal corporate
trust office of the Trustee or Certificate Administrator, as applicable, at
which at any particular time its corporate trust business or certificate
administrative duties, as applicable, with respect to this Agreement shall be
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administered, which office is as of the Closing Date located: (i) in the case of
the Trustee, at 11000 Broken Land Parkway, Columbia, Maryland 21044-3562,
Attention: Corporate Trust Administration/Salomon Brothers Mortgage Securities
VII, Inc., Series 2000-C3; and (ii) in the case of the Certificate
Administrator, at 135 LaSalle Street, Suite 1625, Chicago, Illinois 60603,
Attention: Asset-Backed Securities Trust Services Group"Salomon Brothers
Mortgage Securities VII, Inc., Series 2000-C3.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that
had been a Specially Serviced Mortgage Loan but as to which all Servicing
Transfer Events have ceased to exist.
"Corresponding Class of Principal Balance Certificates" shall
mean, with respect to any REMIC II Regular Interest, the Class of Principal
Balance Certificates that has an alphabetical and, if applicable, numerical
Class designation that is the same as the alphabetical and, if applicable,
numerical designation for such REMIC II Regular Interest.
"Corresponding REMIC II Regular Interest" shall mean, with
respect to any Class of Principal Balance Certificates, the REMIC II Regular
Interest that has an alphabetical and, if applicable, numerical designation that
is the same as the alphabetical and, if applicable, numerical Class designation
for such Class of Principal Balance Certificates.
"Cross-Collateralized Group" shall mean any group of Mortgage
Loans that is cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage
Loan, that is, by its terms, cross-defaulted and cross-collateralized with any
other Mortgage Loan.
"CSI" shall mean Chase Securities Inc. or its successors in
interest.
"Current Interest Distribution Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any
Distribution Date, have the meaning assigned thereto in Section
2.10(g);
(b) with respect to any REMIC II Regular Interest, for
any Distribution Date, have the meaning assigned thereto in Section
2.12(g); and
(c) with respect to any Class of REMIC III Regular Interest
Certificates, for any Distribution Date, have the meaning assigned
thereto in Section 2.14(g).
"Custodian" shall mean a Person who is at any time appointed
by the Trustee pursuant to Section 8.11 as a document custodian on behalf of the
Trustee for the Mortgage Files.
"Cut-off Date" shall mean: (A) with respect to any Mortgage
Loan, its Due Date in December 2000; and (B) with respect to any group of
Mortgage Loans, their respective Due Dates in December 2000, collectively.
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"Cut-off Date Principal Balance" shall mean, with respect to
any Mortgage Loan, the outstanding principal balance of such Mortgage Loan as of
the Cut-off Date, after application of all payments of principal due on or
before such date, whether or not received.
"DBS" shall mean Deutsche Bank Securities Inc. or its
successors in interest.
"Debt Service Coverage Ratio" shall mean, with respect to any
Mortgage Loan, as of any date of determination, and without regard to the
cross-collateralization in the case of any Cross-Collateralized Mortgage Loan,
the ratio of (x) the Net Operating Income (before payment of debt service on
such Mortgage Loan) generated by the related Mortgaged Property during the most
recently ended twelve month trailing period, to (y) the product of (i) 12 times
(ii) the Monthly Payment in effect for such Mortgage Loan and allocated on a
Mortgaged Property-by-Mortgaged Property basis as indicated in the Property File
as of such date of determination.
"Default Charges" shall mean Default Interest and/or late
payment charges that are paid or payable, as the context may require, in respect
of any Mortgage Loan or REO Mortgage Loan.
"Default Interest" shall mean, with respect to any Mortgage
Loan (or successor REO Mortgage Loan), any amounts collected thereon, other than
late payment charges or Prepayment Premiums, that represent interest (exclusive,
if applicable, of Post-ARD Additional Interest) in excess of interest accrued on
the principal balance of such Mortgage Loan (or REO Mortgage Loan) at the
related Mortgage Rate, such excess interest arising out of a default under such
Mortgage Loan.
"Defaulted Mortgage Loan" shall mean a Specially Serviced
Mortgage Loan (i) that is delinquent in an amount equal to at least two Monthly
Payments (not including the Balloon Payment, if any) or is delinquent 30 days or
more in respect of its Balloon Payment, provided that if the related Borrower
has a written firm commitment within 30 days following the date on which the
Balloon Payment was due to refinance such Specially Serviced Mortgage Loan, such
Mortgage Loan shall not become a Defaulted Mortgage Loan until such Mortgage
Loan is delinquent for 60 days beyond its Balloon Payment, in either case such
delinquency to be determined without giving effect to any grace period permitted
by the related Mortgage, the related Mortgage Note or other related loan
document and without regard to any acceleration of payments under the related
Mortgage, the related Mortgage Note and other related loan documents, or (ii) as
to which the Special Servicer has, by written notice to the related Borrower,
accelerated the maturity of the indebtedness evidenced by the related Mortgage
Note.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Loan" shall mean a Mortgage Loan that permits the
related Borrower to obtain a release of the related Mortgaged Property through
defeasance.
"Definitive Certificate" shall have the meaning assigned
thereto in Section 5.03(a).
"Deleted Mortgage Loan" shall mean a Mortgage Loan which is
repurchased from the Trust as contemplated by Section 2.03.
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"Depositor" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Depository" shall mean the Depository Trust Company, or any
successor Depository hereafter named as contemplated by Section 5.03(c). The
nominee of the initial Depository for purposes of registering those Certificates
that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or
other financial institution or other Person for whom from time to time the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Designated Sub-Servicer" shall mean any Sub-Servicer set
forth on Exhibit N hereto and any successor thereto under the related
Sub-Servicing Agreement.
"Designated Sub-Servicer Agreement" shall mean any
Sub-Servicing Agreement between a Designated Sub-Servicer and the Master
Servicer.
"Determination Date" shall mean, with respect to any calendar
month, commencing in January 2001, the 11th day of such month (or, if such 11th
day is not a Business Day, the immediately preceding Business Day). Each
Determination Date will relate to the Distribution Date in the same calendar
month.
"Directly Operate" shall mean, with respect to any REO
Property, the furnishing or rendering of services to the tenants thereof, the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers (other than the sale of REO Property pursuant to
Section 3.18(d)), the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by the Trust other than
through an Independent Contractor; provided, however, that the Special Servicer
(or any Sub-Servicer on behalf of the Special Servicer) shall not be considered
to Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to repairs or capital expenditures with respect to such
REO Property.
"Discount Rate" shall have the meaning assigned thereto in
Section 4.01(d).
"Disqualified Organization" shall mean any of the following:
(i) the United States, any State or any political subdivision thereof, any
foreign government, international organization, or any agency or instrumentality
of any of the foregoing, (ii) any organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business income), (iii) rural
electric and telephone cooperatives described in Section 1381 of the Code, or
(iv) any other Person so designated by the Tax Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Class R
Certificate by such Person may cause the Trust or any Person having an Ownership
Interest in any Class of Certificates, other than such Person, to incur a
liability for any federal tax imposed under the Code
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that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class R Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Distribution Account" shall mean the segregated account or
accounts created and maintained by the Certificate Administrator in the name of
the Trustee pursuant to Section 3.04(b) in trust for the Certificateholders,
which shall be entitled "Wells Fargo Bank Minnesota, N.A. [or the name of any
successor Trustee], as Trustee, in trust for the registered holders of Salomon
Brothers Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-C3, Distribution Account".
"Distribution Date" shall mean, with respect to any calendar
month, commencing in January 2001, the 18th day of such month (or, if such 18th
day is not a Business Day, the Business Day immediately following).
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall mean, with respect to any Mortgage
Loan, that any document required to be part of the related Mortgage File has not
been properly executed, is missing, contains information that does not conform
in any material respect with the corresponding information set forth in the
Mortgage Loan Schedule (and the terms of such document have not been modified by
written instrument contained in the related Mortgage File), or does not appear
to be regular on its face.
"Due Date" shall mean, with respect to any Mortgage Loan (and
any successor REO Mortgage Loan), the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is scheduled
to be first due.
"EDGAR" shall mean the Electronic Data Gathering, Analysis,
and Retrieval System of the Commission, which is the computer system for the
receipt, acceptance, review and dissemination of documents submitted to the
Commission in electronic format.
"Eligible Account" shall mean any of (i) an account maintained
with a federal or state chartered depository institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which are rated no
less than "Aa3" by Moody's and "A" by S&P (if the deposits are to be held in the
account for more than 30 days), or the short-term deposit or short-term
unsecured debt obligations of which are rated no less than "P-1" by Moody's and
"A-1" by S&P (if the deposits are to be held in the account for 30 days or
less), in any event at any time funds are on deposit therein, or (ii) a
segregated trust account maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depository institution or trust company is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR Section 9.10(b), and which, in either case, has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
federal or state authority, (iii) an account or accounts maintained with PNC
Bank, National Association ("PNC") so long as (1) PNC's long-term unsecured debt
rating shall be at least "A1" from Moody's and (2) PNC has the appropriate
rating from S&P specified in clause (i) above, or
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(iv) any other account that is acceptable to the Rating Agencies (as evidenced
by written confirmation to the Trustee from each Rating Agency that the use of
such account would not, in and of itself, result in an Adverse Rating Event with
respect to any Class of Rated Certificates).
"Emergency Advance" shall mean any Servicing Advance (whether
or not it is a Servicing Advance that, pursuant hereto, the Special Servicer is
required to request the Master Servicer to make) that must be made within ten
(10) days of the Special Servicer's becoming aware that it must be made in order
to avoid any material penalty, any material harm to a Mortgaged Property or any
other material adverse consequence to the Trust Fund.
"Environmental Insurance Policy" shall mean, with respect to
any Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmental Laws" shall mean any federal or state laws and
regulations governing the use, management or disposal of Hazardous Materials.
"Environmentally Insured Mortgage Loans" shall mean the
Mortgage Loans identified on Exhibit B-1F.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Borrower for application
toward the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items in respect of the related Mortgaged
Property.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any,
of (a) the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or REO Property, over (b) the sum of (i) the amount
needed to pay off the Mortgage Loan or related REO Mortgage Loan in full and
(ii) any related unpaid Advance Interest.
"Excess Servicing Fees" shall mean, with respect to each
Mortgage Loan (and successor REO Mortgage Loan), that portion of the Master
Servicing Fees that accrue at a per annum rate equal to the Excess Servicing Fee
Rate.
"Excess Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan (and successor REO Mortgage Loan), initially a rate per annum
equal to the related Master Servicing Fee Rate, minus the sum of two (2) basis
points and any applicable Primary Servicing Fee Rate provided that such rate
shall be subject to reduction at any time following any resignation of the
Master Servicer pursuant to Section 6.04 (if no successor is appointed in
accordance with the second paragraph of such Section) or any termination of the
Master Servicer pursuant to Section 7.01, to the extent reasonably necessary (in
the sole discretion of the Trustee) for the Trustee to
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appoint a qualified successor Master Servicer (which successor may include the
Trustee) that meets the requirements of Section 7.02 and who requires market
rate servicing compensation that accrues at a per annum rate in excess of the
sum of two (2) basis points and any applicable Primary Servicing Fee Rate.
"Excess Servicing Fee Right" shall mean, with respect to each
Mortgage Loan (and successor REO Mortgage loan), the right to receive Excess
Servicing Fees.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Fannie Mae" shall mean the Federal National Mortgage
Association or any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any successor.
"Final Distribution Date" shall mean the final Distribution
Date on which any distributions are to be made on the Certificates as
contemplated by Section 9.01.
"Final Recovery Determination" shall mean a determination made
by the Special Servicer, in its reasonable judgment, with respect to any
Mortgage Loan or REO Property (other than a Mortgage Loan that is paid in full
and other than a Mortgage Loan or REO Property, as the case may be, repurchased
by or on behalf of a Mortgage Loan Seller pursuant to or as contemplated by the
related Mortgage Loan Purchase Agreement, or purchased by the Master Servicer,
the Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01, or otherwise acquired by the Sole Certificateholder in exchange
for all the Certificates pursuant to Section 9.01), that there has been a
recovery of all related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and other payments or recoveries that will ultimately be recoverable.
"Fiscal Agent" shall mean a Person who is at any time
appointed by the Trustee pursuant to Section 8.13 to act as fiscal agent
hereunder.
"Fiscal Agent Agreement" shall have the meaning assigned
thereto in Section 8.13.
"Freddie Mac" shall mean the Federal Home Loan Mortgage
Corporation or any successor.
"GAAP" shall mean generally accepted accounting principles in
the United States.
"Gain on Sale Reserve Fund" shall mean the segregated account
created and maintained by the Certificate Administrator in the name of the
Trustee pursuant to Section 3.04(d) in trust for the Certificateholders, which
shall be entitled "Wells Fargo Bank Minnesota, N.A., [or the name of any
successor Trustee], as Trustee, in trust for the registered holders of Salomon
Brothers Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-C3, Gain on Sale Reserve Fund".
"GCFP" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
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"GCFP Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"GCFP Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement
"GCM" shall mean Greenwich Capital Markets, Inc. or its
successor in interest.
"Grantor Trust" shall mean a grantor trust as defined under
Subpart E of Part 1 of Subchapter J of the Code.
"Grantor Trust Pool" shall mean either of Grantor Trust R or
Grantor Trust Y.
"Grantor Trust R" shall mean the Grantor Trust designated as
such in Section 2.15(b).
"Grantor Trust Y" shall mean the Grantor Trust designated as
such in Section 2.15(a).
"Ground Lease" shall mean the ground lease pursuant to which
any Borrower holds a leasehold interest in the related Mortgaged Property.
"Hazardous Materials" shall mean any dangerous, toxic or
hazardous pollutants, chemicals, wastes, or substances, including those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent" shall mean, when used with respect to any
specified Person, any such Person who (i) is in fact independent of the
Depositor, each Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Tax Administrator, the Certificate Administrator, the Trustee, any Fiscal
Agent, the Controlling Class Representative and any and all Affiliates thereof,
(ii) does not have any direct financial interest in or any material indirect
financial interest in any of the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Tax Administrator, the Certificate
Administrator, the Trustee, any Fiscal Agent, the Controlling Class
Representative or any Affiliate thereof, and (iii) is not connected with the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Tax Administrator, the Certificate Administrator, the Trustee, any Fiscal
Agent, the Controlling Class Representative or any Affiliate thereof as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, however, that a Person shall not fail to
be Independent of the Depositor, any Mortgage Loan Seller, the Master Servicer,
the Special Servicer, the Tax Administrator, the Certificate Administrator, the
Trustee, any Fiscal Agent, the Controlling Class Representative or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of any
class of securities issued by the Depositor, such Mortgage Loan Seller, the
Master Servicer, the Special Servicer, the Tax Administrator, the Certificate
Administrator, the Trustee, such Fiscal Agent, the Controlling Class
Representative or any Affiliate thereof, as the case may be.
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"Independent Contractor" shall mean any Person that would be
an "independent contractor" with respect to REMIC I (or, solely for purposes of
a Mortgage Loan in a Loan REMIC, the related Loan REMIC) within the meaning of
Section 856(d)(3) of the Code if REMIC I (or the related Loan REMIC) were a real
estate investment trust (except that the ownership test set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates, or such other interest in
any Class of Certificates as is set forth in an Opinion of Counsel, which shall
be at no expense to the Trustee, the Certificate Administrator, the Tax
Administrator or the Trust, delivered to the Trustee, the Certificate
Administrator and the Tax Administrator), so long as the Trust does not receive
or derive any income from such Person and provided that the relationship between
such Person and the Trust is at arm's length, all within the meaning of Treasury
regulation Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee, the Certificate Administrator and the Tax Administrator of an Opinion
of Counsel, which shall be at no expense to the Trustee, the Certificate
Administrator, the Tax Administrator or the Trust, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Pool Balance" shall mean the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
"Institutional Accredited Investor" shall mean an "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the Securities Act or any entity as to which all of the equity owners come
within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage
Loan or REO Property, any hazard insurance policy, flood insurance policy, title
insurance policy, earthquake insurance policy, Environmental Insurance Policy,
business interruption insurance policy or other insurance policy that is
maintained from time to time in respect of such Mortgage Loan (or the related
Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds" shall mean proceeds paid under any
Insurance Policy, to the extent such proceeds are not applied to the restoration
of the related Mortgaged Property or REO Property or released to the related
Borrower, in any case, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(c).
"Interest Accrual Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any
Interest Accrual Period, have the meaning assigned thereto in Section
2.10(g);
(b) with respect to any REMIC II Regular Interest, for
any Interest Accrual Period, have the meaning assigned thereto in
Section 2.12(g); and
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(c) with respect to any Class of REMIC III Regular
Interest Certificates, for any Interest Accrual Period, have the
meaning assigned thereto in Section 2.14(g).
"Interest Accrual Basis" shall mean the basis on which
interest accrues in respect of any Mortgage Loan, any Loan REMIC Regular
Interest, any REMIC I Regular Interest, any REMIC II Regular Interest or any
Class of REMIC III Regular Interest Certificates, consisting of one of the
following: (i) a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period" shall mean, with respect to any
REMIC I Regular Interest, any REMIC II Regular Interest or any Class of REMIC
III Regular Interest Certificates, for any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs.
"Interest Only Certificate" shall mean any of the Certificates
designated as such in Section 2.09(g).
"Interest Reserve Account" shall mean the segregated account
created and maintained by the Certificate Administrator in the name of the
Trustee pursuant to Section 3.04(c) in trust for the Certificateholders, which
shall be entitled "Wells Fargo Bank Minnesota, N.A., [or the name of any
successor Trustee], as Trustee, in trust for the registered holders of Salomon
Brothers Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-C3, Interest Reserve Account".
"Interest Reserve Amount" shall mean, with respect to each
Interest Reserve Loan and each Distribution Date that occurs during February
2001 and during February of each year thereafter and during January 2001 and
during January of each year thereafter that is not a leap year, an amount equal
to one day's interest at the related Net Mortgage Rate on the Stated Principal
Balance of such Interest Reserve Loan immediately prior to such Distribution
Date (and, accordingly, prior to any reduction in such Stated Principal Balance
on such Distribution Date), to the extent that a Monthly Payment is received in
respect of such Interest Reserve Loan for the related Due Date in the same month
as such Distribution Date on or before the related Master Servicer Remittance
Date or a P&I Advance is made in respect of such Interest Reserve Loan for such
Due Date on the related P&I Advance Date.
"Interest Reserve Loan" shall mean any Actual/360 Mortgage
Loan (or successor REO Mortgage Loan).
"Interested Person" shall mean any party hereto, any Mortgage
Loan Seller, any Certificateholder, or any Affiliate of any such Person.
"Investment Account" shall have the meaning assigned thereto
in Section 3.06(a).
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended.
"Investment Grade Certificate" shall mean, as of any date of
determination, any Certificate that is rated at least "Baa3" by Moody's or
"BBB-" by S&P.
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"IRS" shall mean the Internal Revenue Service or any
successor.
"Issue Price" shall mean, with respect to each Class of
Certificates, the "issue price" as defined in the Code and Treasury regulations
promulgated thereunder.
"J.P. Morgan" shall mean J.P. Morgan Securities Inc. or its
successor in interest.
"LaSalle" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"LaSalle Mortgage Loan Purchase Agreement" shall have the
meaning assigned thereto in the Preliminary Statement to this Agreement.
"LaSalle Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Late Collections" shall mean: (a) with respect to any
Mortgage Loan, all amounts received thereon during any Collection Period,
whether as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise, which represent late collections of the principal and/or
interest portions of a Monthly Payment (other than a Balloon Payment) or an
Assumed Monthly Payment in respect of such Mortgage Loan due or deemed due on a
Due Date in a previous Collection Period, or on a Due Date coinciding with or
preceding the Cut-off Date, and not previously recovered; and (b) with respect
to any REO Mortgage Loan, all amounts received in connection with the related
REO Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of the predecessor Mortgage Loan or late collections of the principal
and/or interest portions of an Assumed Monthly Payment in respect of such REO
Mortgage Loan due or deemed due on a Due Date in a previous Collection Period
and not previously recovered. The Term "Late Collections" shall specifically
exclude any Default Charges.
"Latest Possible Maturity Date" shall mean, with respect to
any Loan REMIC Regular Interest, any REMIC I Regular Interest, REMIC II Regular
Interest or Class of REMIC III Regular Interest Certificates, the date
designated as the "latest possible maturity date" thereof solely for purposes of
satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii).
"Lennar" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Letter of Credit" shall mean, with respect to any Mortgage
Loan, any third-party letter of credit delivered by or at the direction of the
Borrower pursuant to the terms of such Mortgage Loan in lieu of the
establishment of, or deposit otherwise required to be made into, a Reserve Fund.
"Liquidation Event" shall mean: (a) with respect to any
Mortgage Loan, any of the following events -- (i) such Mortgage Loan is paid in
full, (ii) a Final Recovery Determination is made with respect to such Mortgage
Loan, (iii) such Mortgage Loan is repurchased by or on behalf
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of a Mortgage Loan Seller pursuant to or as contemplated by the related Mortgage
Loan Purchase Agreement, (iv) such Mortgage Loan is purchased by the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder(s)
pursuant to Section 3.18 or Section 9.01, or (v) such Mortgage Loan is acquired
by the Sole Certificateholder in exchange for all the Certificates pursuant to
Section 9.01; and (b) with respect to any REO Property (and the related REO
Mortgage Loan), any of the following events -- (i) a Final Recovery
Determination is made with respect to such REO Property, (ii) such REO Property
is purchased by the Master Servicer, the Special Servicer or any Controlling
Class Certificateholder(s) pursuant to Section 3.18 or Section 9.01, or (iii)
such REO Property is acquired by the Sole Certificateholder in exchange for all
the Certificates pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable
and necessary "out-of-pocket" costs and expenses due and owing (but not
otherwise covered by Servicing Advances) in connection with the liquidation of
any Specially Serviced Mortgage Loan or REO Property pursuant to Section 3.09 or
3.18 (including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property (other than any Specially Serviced
Mortgage Loan or REO Property that is repurchased by or on behalf of a Mortgage
Loan Seller pursuant to or as contemplated by the related Mortgage Loan Purchase
Agreement, that is purchased by the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder(s) pursuant to Section 3.18 or Section 9.01
or that is acquired by the Sole Certificateholder in exchange for all the
Certificates pursuant to Section 9.01), the fee designated as such and payable
to the Special Servicer pursuant to the third paragraph of Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan or REO Property as to which a Liquidation Fee
is payable, 1.00%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) received by the
Master Servicer or the Special Servicer in connection with: (i) the full,
discounted or partial liquidation of a Mortgaged Property or other collateral
constituting security for a defaulted Mortgage Loan, through trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Borrower in accordance with applicable
law and/or the terms and conditions of the related Mortgage Loan documents; (ii)
the realization upon any deficiency judgment obtained against a Borrower; (iii)
the purchase of a Defaulted Mortgage Loan by any Controlling Class
Certificateholder(s) pursuant to Section 3.18(b) or by the Master Servicer or
the Special Servicer pursuant to Section 3.18(c) or any other sale thereof
pursuant to Section 3.18(d); (iv) the repurchase of a Mortgage Loan by or on
behalf of a Mortgage Loan Seller pursuant to or as contemplated by the related
Mortgage Loan Purchase Agreement; (v) the purchase of a Mortgage Loan or REO
Property by the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01; or (vi) the acquisition of any
Mortgage Loan or REO Property by the Sole Certificateholder in exchange for all
the Certificates pursuant to Section 9.01.
"Loan REMIC" shall mean, with respect to each Mortgage Loan
listed on Exhibit B-1E, the segregated pool of assets consisting primarily of
such Mortgage Loan, any related REO
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Property, and any and all payments under and the proceeds of such Mortgage Loan
and/or related REO Property received after the date of the related Loan REMIC
Declaration.
"Loan REMIC Declaration" shall mean, with respect to each
Mortgage Loan identified on Exhibits B-1E, the REMIC declaration made as of a
date prior to the Closing Date.
"Loan REMIC Interest" shall mean any Loan REMIC Regular
Interest or Loan REMIC Residual Interest.
"Loan REMIC Regular Interest" shall mean the uncertificated
"regular interest", within the meaning of Section 860G(a)(1) of the Code, in
each Loan REMIC. The principal balance of each Loan REMIC Regular Interest shall
equal the principal balance of the related Mortgage Loan (or, if applicable, the
deemed principal balance of any successor REO Mortgage Loan) outstanding from
time to time. Payments and other collections of amounts received on or in
respect of each of the Mortgage Loans listed on Exhibit B-1E (or any related REO
Property) and allocable (in accordance with Section 1.03, to interest (adjusted
to the related Loan REMIC Remittance Rate) on, principal of and/or Prepayment
Premiums with respect to such Mortgage Loan (or any successor REO Mortgage Loan)
shall be deemed paid on the related Loan REMIC Regular Interest to REMIC I at
the time such amounts are so received. The terms of each Loan REMIC Regular
Interest are otherwise set forth in the related Loan REMIC Declaration.
"Loan REMIC Remittance Rate" shall mean the per annum rate at
which interest accrues in respect of a Loan REMIC Regular Interest, as set forth
in or otherwise calculated in accordance with the related Loan REMIC
Declaration.
"Loan REMIC Residual Interest" shall mean the sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in each Loan REMIC.
"Loan-to-Value Ratio" shall mean, with respect to any Mortgage
Loan, as of any date of determination, and without regard to the
cross-collateralization in the case of any Cross-Collateralized Mortgage Loan, a
fraction, expressed as a percentage, the numerator of which is the then current
principal amount of such Mortgage Loan, and the denominator of which is the
Appraised Value of the related Mortgaged Property.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any REMIC I Regular Interest for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) REMIC II with
respect to such REMIC I Regular Interest on all prior Distribution
Dates, if any;
(b) with respect to any REMIC II Regular Interest for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) REMIC III with
respect to such REMIC II Regular Interest on all prior Distribution
Dates, if any; and
(c) with respect to any Class of Principal Balance
Certificates for any Distribution Date, the total amount of all
Unfunded Principal Balance Reductions, if any,
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incurred by (but not reimbursed to) the Holders of such Class of
Certificates on all prior Distribution Dates, if any.
"Majority Controlling Class Certificateholder" shall mean, as
of any date of determination, any single Holder or group of Holders of
Certificates representing a majority of the Voting Rights allocated to the Class
or Classes of Principal Balance Certificates that constitute(s) the Controlling
Class as of such date of determination.
"Master Servicer" shall mean Midland, in its capacity as
master servicer hereunder, or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount" shall mean, with respect
to any Master Servicer Remittance Date, an amount equal to (a) all amounts on
deposit in the Collection Account as of 11:00 a.m., New York City time, on such
Master Servicer Remittance Date, net of (b) any portion of the amounts described
in clause (a) of this definition that represents one or more of the following:
(i) collected Monthly Payments that are due on a Due Date following the end of
the related Collection Period, (ii) any payments of principal (including
Principal Prepayments) and interest (including Post-ARD Additional Interest),
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds received
after the end of the related Collection Period, (iii) any Prepayment Premiums
received after the end of the related Collection Period, (iv) any amounts
payable or reimbursable to any Person from the Collection Account pursuant to
clauses (ii) through (xix) of Section 3.05(a), and (v) any amounts deposited in
the Collection Account in error; provided that the Master Servicer Remittance
Amount for the Master Servicer Remittance Date that occurs in the same calendar
month as the anticipated Final Distribution Date shall be calculated without
regard to clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date" shall mean the Business Day
preceding each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each
Mortgage Loan and REO Mortgage Loan, the fee designated as such and payable to
the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan and REO Mortgage Loan, the rate per annum specified as such on the
Mortgage Loan Schedule.
"Material Breach" shall mean any Breach in respect of any
Mortgage Loan that materially and adversely affects the interests of the
Certificateholders in such Mortgage Loan.
"Material Document Defect" shall mean any Document Defect in
respect of any Mortgage Loan that materially and adversely affects the interests
of the Certificateholders in such Mortgage Loan.
"Memorandum" shall mean the final Private Placement
Memorandum, dated December 12, 2000, relating to certain Classes of the
Non-Registered Certificates delivered by the Depositor to the Underwriters as of
the Closing Date.
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"Modified Mortgage Loan" shall mean any Mortgage Loan as to
which any Servicing Transfer Event has occurred and which has been modified by
the Special Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of
principal or interest due thereon (other than, or in addition to,
bringing Monthly Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related loan
documents, results in a release of the lien of the Mortgage on any
material portion of the related Mortgaged Property without a
corresponding Principal Prepayment in an amount, or the delivery of
substitute real property collateral with a fair market value (as is),
that is not less than the fair market value (as is) of the property to
be released, as determined by an Appraisal delivered to the Special
Servicer (at the expense of the related Borrower and upon which the
Special Servicer may conclusively rely); or
(c) in the reasonable judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment" shall mean, with respect to any Mortgage
Loan as of any Due Date, the scheduled monthly payment (or, in the case of an
ARD Loan after its Anticipated Repayment Date, the minimum required monthly
payment) of principal and/or interest on such Mortgage Loan, including any
Balloon Payment, that is actually payable by the related Borrower from time to
time under the terms of the related Mortgage Note (as such terms may be changed
or modified in connection with a bankruptcy, insolvency or similar proceeding
involving the related Borrower or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20).
"Moody's" shall mean Moody's Investors Service, Inc. or its
successor in interest. If neither such rating agency nor any successor remains
in existence, "Moody's" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the other parties
hereto, and specific ratings of Moody's Investors Service, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of
Moody's, be deemed to refer to such applicable rating category of Moody's,
without regard to any plus or minus or other comparable rating qualification.
"Mortgage" shall mean, with respect to any Mortgage Loan,
separately and collectively, as the context may require, each mortgage, deed of
trust, deed to secure debt or similar document that secures the related Mortgage
Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean, with respect to any Mortgage Loan,
subject to Sections 1.04 and 2.01, collectively the following documents:
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(i) the original executed Mortgage Note, endorsed (either
on the face thereof or pursuant to a separate
allonge) "Pay to the order of Wells Fargo Bank
Minnesota, N.A., as trustee for the registered
holders of Salomon Brothers Mortgage Securities VII,
Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-C3, without recourse", and further
showing a complete, unbroken chain of endorsement
from the originator (if such originator is other than
the related Mortgage Loan Seller); or alternatively,
if the original executed Mortgage Note has been lost,
a lost note affidavit and indemnity with a copy of
such Mortgage Note;
(ii) an original or a copy of the Mortgage and of any
intervening assignments thereof that precede the
assignment referred to in clause (iv) of this
definition, in each case (unless the particular item
has not been returned from the applicable recording
office) with evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the
Mortgage) and of any intervening assignments thereof
that precede the assignment referred to in clause (v)
of this definition, in each case (unless the
particular item has not been returned from the
applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in
favor of Wells Fargo, as trustee for the registered
holders of Salomon Brothers Mortgage Securities VII,
Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-C3, in recordable form;
(v) an original executed assignment of any related
Assignment of Leases (if such item is a document
separate from the Mortgage), in favor of Wells Fargo,
as trustee for the registered holders of Salomon
Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C3,
in recordable form;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution
agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been
modified or the Mortgage Loan has been assumed, in
each case (unless the particular item has not been
retained from the applicable recording office), with
evidence of recording indicated thereon if the
instrument being modified or assumed is a recordable
document;
(vii) the original or a copy of the policy of lender's
title insurance or, if such policy has not yet been
issued, a "marked-up" pro forma title policy or
commitment for title insurance "marked-up" at the
closing of such Mortgage Loan;
(viii) copies of any previously filed UCC Financing
Statements in favor of the originator of such
Mortgage Loan or in favor of any assignee prior to
the
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Trustee (but only to the extent the related Mortgage
Loan Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if any
such UCC Financing Statement is an effective UCC
Financing Statement in favor of the related Mortgage
Loan Seller on record with the applicable public
office for UCC Financing Statements, an original
UCC-2 or UCC-3, as appropriate, in favor of Wells
Fargo, as trustee for the registered holders of
Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C3;
(ix) any environmental indemnity agreement and the
original or a copy of any Environmental Insurance
Policy relating solely to such Mortgage Loan;
(x) any power of attorney, guaranty, property management
agreement, Ground Lease, Ground Lease estoppels,
intercreditor agreement, cash management agreement
and lock-box agreement, relating to such Mortgage
Loan;
(xi) any original documents (including any security
agreements and any Letters of Credit and related
letter of credit reimbursement agreements) relating
to, evidencing or constituting Additional Collateral
and, if applicable, the originals or copies of any
intervening assignments thereof; and in the case of
any such Letter of Credit, in a form that would
permit the Master Servicer or Special Servicer, as
the case may be, on behalf of the Certificateholders,
to draw upon such Letter of Credit;
(xii) in the case of any Mortgage Loan held in a Loan
REMIC, the original or copy of the related Loan REMIC
Declaration.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received.
"Mortgage Loan" shall mean each of the mortgage loans listed
on the Mortgage Loan Schedule that are from time to time held in the Trust Fund.
As used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage File. As
used herein, the term "Mortgage Loan" also includes a mortgage loan that has
been wholly or partially defeased.
"Mortgage Loan Purchase Agreements" shall mean, collectively,
the SBRC Mortgage Loan Purchase Agreement, the GCFP Mortgage Loan Purchase
Agreement, the AMCC Mortgage Loan Purchase Agreement and the LaSalle Mortgage
Loan Purchase Agreement.
"Mortgage Loan Schedule" shall mean, collectively, the four
lists of Mortgage Loans attached hereto as Exhibit B-1A, Exhibit B-1B, Exhibit
B-1C and Exhibit B-1D, respectively, as such lists may be amended from time to
time in accordance with this Agreement. Such lists shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
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(ii) the (A) street address (including city, state and zip
code) of the related Mortgaged Property and (B)
number or amount, as applicable, of apartment units,
rentable square footage, rooms or other relevant
divisions at or measurement of the related Mortgaged
Property;
(iii) the (A) original principal balance and (B) Cut-off
Date Principal Balance;
(iv) the amount of the Monthly Payment due on the first
Due Date following the Closing Date;
(v) the Mortgage Rate as of the Cut-off Date;
(vi) the (A) original and remaining term to stated
maturity and (B) Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the original
and remaining amortization term and the Balloon
Payment;
(viii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, the other Mortgage Loans
contained in the related Cross-Collateralized Group;
(ix) whether the Mortgage Loan is an ARD Loan and, if so,
the Anticipated Repayment Date;
(x) whether such Mortgage Loan provides for defeasance
and, if so, the period during which defeasance may
occur;
(xi) whether the Mortgage Loan is secured by a fee simple
interest in the Mortgaged Property; by the Borrower's
leasehold interest, and a fee simple interest, in the
Mortgaged Property; or solely by a leasehold interest
in the Mortgaged Property;
(xii) the name of the originator of the Mortgage Loan;
(xiii) the Interest Accrual Basis;
(xiv) the Master Servicing Fee Rate;
(xv) whether the Mortgage Loan provides, at any time
during its term, for a Prepayment Premium calculated
based on a yield maintenance formula in connection
with voluntary Principal Prepayments and, if so,
whether the yield maintenance discount rate is
"Treasury Flat-Maturity" or "Treasury Flat-WAL"; and
(xvi) whether the related Mortgage encumbers the related
Borrower's leasehold interest under a Ground Lease.
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"Mortgage Loan Sellers" shall mean, collectively, SBRC, GCFP,
AMCC and LaSalle.
"Mortgage Note" shall mean the original executed note
evidencing the indebtedness of a Borrower under a Mortgage Loan, together with
any rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, collectively, as of any particular date of
determination.
"Mortgage Rate" shall mean, with respect to any Mortgage Loan
(and any successor REO Mortgage Loan), the annualized rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in accordance with Section 3.20 or in connection with
a bankruptcy, insolvency or similar proceeding involving the related Borrower.
In the case of each of the ARD Loans, the related Mortgage Rate will be subject
to increase in accordance with the related Mortgage Note if the particular
Mortgage Loan is not paid in full by its Anticipated Repayment Date.
"Mortgaged Property" shall mean, individually and
collectively, as the context may require, each real property (together with all
improvements and fixtures thereon) subject to the lien of a Mortgage and
constituting collateral for a Mortgage Loan. With respect to any
Cross-Collateralized Mortgage Loan, if and when the context may require,
"Mortgaged Property" shall mean, collectively, all the mortgaged real properties
(together with all improvements and fixtures thereon) securing the relevant
Cross-Collateralized Group.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date, the amount, if any, by which (a) the aggregate
of all Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount of the Compensating Interest Payment
remitted by the Master Servicer pursuant to Section 3.19(a) on the Master
Servicer Remittance Date related to such Distribution Date.
"Net Assumption Fee" shall mean, with respect to any Mortgage
Loan, any Assumption Fee collected thereon, net of any expenses payable
therefrom in accordance with Section 3.08.
"Net Default Interest" shall have the meaning assigned thereto
in Section 3.25(a).
"Net Investment Earnings" shall mean, with respect to any
Investment Account for any Collection Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Collection
Period in connection with the investment of funds held in such Investment
Account for the benefit of the Master Servicer or the Special Servicer, as
applicable, exceeds the aggregate of all losses, if any, incurred during such
Collection Period in connection with the investment of such funds for the
benefit of the Master Servicer or the Special Servicer, as applicable, in
accordance with Section 3.06 (other than losses of what would otherwise have
constituted interest or other income earned on such funds).
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"Net Investment Loss" shall mean, with respect to any
Investment Account for any Collection Period, the amount by which the aggregate
of all losses, if any, incurred during such Collection Period in connection with
the investment of funds held in such Investment Account for the benefit of the
Master Servicer or the Special Servicer, as applicable, in accordance with
Section 3.06 (other than losses of what would otherwise have constituted
interest or other income earned on such funds), exceeds the aggregate of all
interest and other income realized during such Collection Period in connection
with the investment of such funds for the benefit of the Master Servicer or the
Special Servicer, as applicable; provided that, in the case of any Investment
Account and any particular investment of funds in such Investment Account, Net
Investment Loss shall not include any loss with respect to such investment which
is incurred solely as a result of the insolvency of the federal or state
chartered depository institution or trust company that holds such Investment
Account, so long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account both at the time
such investment was made and as of a date not more than 30 days prior to the
date of the loss.
"Net Liquidation Proceeds" shall mean the excess, if any, of
all Liquidation Proceeds received with respect to any Specially Serviced
Mortgage Loan or REO Property, over the amount of all unpaid Liquidation
Expenses and unreimbursed Servicing Advances incurred with respect thereto.
"Net Mortgage Rate" shall mean, with respect to any Mortgage
Loan (or successor REO Mortgage Loan), a rate per annum equal to the related
Mortgage Rate, minus the related Administrative Fee Rate.
"Net Operating Income" shall mean, with respect to any
Mortgaged Property, the net operating income derived from such Mortgaged
Property for any specified period, calculated in accordance with Exhibit K.
"New Lease" shall mean any lease of an REO Property entered
into at the direction of the Special Servicer, including any lease renewed,
modified or extended on behalf of the Certificateholders, or allowed pursuant to
the terms of such lease.
"NOI Adjustment Worksheet" shall mean, with respect to any
Mortgage Loan or REO Mortgage Loan, a report substantially in the form of, and
containing the information called for in, the downloadable form of the "NOI
Adjustment Worksheet" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "NOI Adjustment Worksheet" available as of the Closing Date on the
CMSA Website, is acceptable to the Master Servicer or the Special Servicer, as
applicable, and in any event, shall present the computations made in accordance
with the methodology described in such form to "normalize" the full year net
operating income and debt service coverage numbers used in the other reports
required by this Agreement.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance.
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"Nonrecoverable P&I Advance" shall mean, as evidenced by the
Officer's Certificate and supporting documentation contemplated by Section
4.03(c), any P&I Advance previously made or to be made in respect of any
Mortgage Loan or any REO Mortgage Loan that, as determined by the Master
Servicer or, if applicable, the Trustee or any Fiscal Agent, in its reasonable
judgment, will not be ultimately recoverable from late payments, Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other recovery on
or in respect of such Mortgage Loan.
"Nonrecoverable Servicing Advance" shall mean, as evidenced by
the Officer's Certificate and supporting documentation contemplated by Section
3.11(h), any Servicing Advance previously made or to be made in respect of a
Mortgage Loan or REO Property that, as determined by the Master Servicer, the
Special Servicer or, if applicable, the Trustee or any Fiscal Agent, in its
reasonable judgment, will not be ultimately recoverable from late payments,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other
recovery on or in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate" shall mean any Certificate that
has not been subject to registration under the Securities Act. As of the Closing
Date, the Class X, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P, Class Y and Class R Certificates will constitute Non-Registered
Certificates.
"Non-United States Person" shall mean any Person other than a
United States Person.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer or the Special Servicer or a
Responsible Officer of the Certificate Administrator, the Trustee or any Fiscal
Agent, as the case may be.
"Opinion of Counsel" shall mean a written opinion of counsel
(which counsel, in the case of any such opinion of counsel relating to the
taxation of the Trust Fund or any portion thereof or the status of any REMIC
Pool as a REMIC or the status of either Grantor Trust Pool as a Grantor Trust
for taxation purposes, shall be Independent of the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Certificate Administrator or the Tax Administrator, as applicable,
but which may act as counsel to such Person) acceptable to and delivered to the
addressee(s) thereof.
"OTS" shall mean the Office of Thrift Supervision or any
successor thereto.
"Ownership Interest" shall mean, in the case of any
Certificate, any ownership or security interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
"P&I Advance" shall mean, with respect to any Mortgage Loan or
REO Mortgage Loan, any advance made by the Master Servicer, the Trustee or any
Fiscal Agent pursuant to Section 4.03.
"P&I Advance Date" shall mean the Business Day preceding each
Distribution Date.
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"Pass-Through Rate" shall mean the per annum rate at which
interest accrues in respect of any Class of REMIC III Regular Interest
Certificates during any Interest Accrual Period, as set forth in or otherwise
calculated in accordance with Section 2.14(f).
"Percentage Interest" shall mean:
(a) with respect to any REMIC III Regular Interest
Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the
case may be, of such Certificate as of the Closing Date, as specified
on the face thereof, and the denominator of which is the Class
Principal Balance or Class Notional Amount, as the case may be, of the
relevant Class as of the Closing Date; and
(b) with respect to a Class Y Certificate or Class R
Certificate, the percentage interest in distributions to be made with
respect to the relevant Class, as stated on the face of such
Certificate.
"Performing Mortgage Loan" shall mean any Corrected Mortgage
Loan and any Mortgage Loan as to which a Servicing Transfer Event has not
occurred.
"Permitted Investments" shall mean any one or more of the
following obligations or securities:
(i) direct obligations of, or obligations fully
guaranteed as to timely payment of principal and interest by, the
United States or any agency or instrumentality thereof, provided that
each such obligation is backed by the full faith and credit of the
United States;
(ii) repurchase agreements on obligations specified in
clause (i), provided that the short-term unsecured debt obligations of
the party agreeing to repurchase such obligations are at the time of
investment rated in the highest short-term debt rating category of each
of Moody's and S&P (or, in the case of either Rating Agency, have such
lower rating as will not result in an Adverse Rating Event with respect
to any Class of Rated Certificates, as confirmed in writing to the
Trustee by such Rating Agency);
(iii) federal funds, uncertificated certificates of
deposit, time deposits and bankers' acceptances of any bank or trust
company organized under the laws of the United States or any state
thereof, provided that the short-term unsecured debt obligations of
such bank or trust company are at the time of investment rated in the
highest short-term debt rating category of each of Moody's and S&P (or,
in the case of either Rating Agency, have such lower rating as will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates, as confirmed in writing to the Trustee by such Rating
Agency);
(iv) commercial paper of any corporation incorporated
under the laws of the United States or any state thereof (or of any
corporation not so incorporated, provided that the commercial paper is
United States Dollar denominated and amounts payable thereunder are not
subject to any withholding imposed by any non-United States
jurisdiction), provided that such commercial paper is rated in the
highest short-term debt rating category of each of Moody's and S&P (or,
in the case of either Rating Agency, has such lower rating as will not
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<PAGE> 47
result in an Adverse Rating Event with respect to any Class of Rated
Certificates, as confirmed in writing to the Trustee by such Rating
Agency);
(v) units of money market funds which maintain a constant
net asset value, provided that such units of money market funds are
rated in the highest applicable rating category of each of Moody's and
S&P (or, in the case of either Rating Agency, have such lower rating as
will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates, as confirmed in writing to the Trustee by such
Rating Agency); or
(vi) any other obligation or security that is acceptable
to the Rating Agencies and will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in
writing to the Trustee by each Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity, (C) no investment
described hereunder may be sold prior to stated maturity if such sale would
result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have a "r" highlighter or other comparable qualifier attached to
its rating; and provided, further, that each investment described hereunder must
have (X) a predetermined fixed amount of principal due at maturity (that cannot
vary or change), (Y) a remaining maturity of not more than 365 days and (Z)
except in the case of a Permitted Investment described in clause (v) above, a
fixed interest rate or an interest rate that is tied to a single interest rate
index plus a single fixed spread; and provided, further, that each investment
described hereunder must be a "cash flow investment" (within the meaning of the
REMIC Provisions).
"Permitted Transferee" shall mean any Transferee of a Class R
Certificate other than either a Disqualified Organization or a Non-United States
Person; provided, however, that if a Transferee is classified as a partnership
under the Code, such Transferee shall only be a Permitted Transferee if all of
its beneficial owners are United States Persons and the governing documents of
the Transferee prohibit a transfer of any interest in the Transferee to any
Non-United States Person.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Phase I Environmental Assessment" shall mean a "Phase I
assessment" as described in and meeting the criteria of the American Society of
Testing and Materials Standard E 1527-00 or any successor thereto published by
the American Society of Testing Materials.
"Plan" shall have the meaning assigned thereto in Section
5.02(c).
"Plurality Class R Certificateholder" shall mean, as to any
taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the Class R Certificates.
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"Post-ARD Additional Interest" shall mean, with respect to any
ARD Loan after its Anticipated Repayment Date, all interest accrued on the
principal balance of such ARD Loan at the Post-ARD Additional Interest Rate (the
payment of which interest shall, under the terms of such Mortgage Loan, be
deferred until the principal balance of such Mortgage Loan has been paid in
full), together with all interest, if any, accrued at the related Mortgage Rate
on such deferred interest.
"Post-ARD Additional Interest Rate" shall mean, with respect
to any ARD Loan after its Anticipated Repayment Date, the incremental increase
in the Mortgage Rate for such Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
"Prepayment Assumption" shall mean, for purposes of
determining the accrual of original issue discount, market discount and premium,
if any, on the Mortgage Loans, the Loan REMIC Regular Interests, the REMIC I
Regular Interests, the REMIC II Regular Interests and the Certificates for
federal income tax purposes, the assumptions that each ARD Loan is paid in its
entirety on its Anticipated Prepayment Date and that no Mortgage Loan is
otherwise prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part made
after its Due Date in any Collection Period, any payment of interest (net of
related Master Servicing Fees and, further, net of any portion of such interest
that represents Default Interest, late payment charges or Post-ARD Additional
Interest) actually collected from the related Borrower and intended to cover the
period from and after such Due Date to, but not including, the date of
prepayment (exclusive, however, of any related Prepayment Premium that may have
been collected).
"Prepayment Interest Shortfall" shall mean, with respect to
any Mortgage Loan that was subject to a Principal Prepayment in full or in part
made prior to its Due Date in any Collection Period, the amount of interest, to
the extent not collected from the related Borrower (without regard to any
Prepayment Premium that may have been collected), that would have accrued on the
amount of such Principal Prepayment during the period from the date of
prepayment to, but not including, such Due Date (less the amount of related
Master Servicing Fees and, if applicable, exclusive of Default Interest,
Post-ARD Additional Interest and late payment charges).
"Prepayment Premium" shall mean, with respect to any Mortgage
Loan, any premium, fee or other additional amount paid or payable, as the
context requires, by a Borrower in connection with a Principal Prepayment on, or
other early collection of principal of, a Mortgage Loan or any successor REO
Mortgage Loan, including any such premium, fee or other additional amount that
is calculated as a percentage of the principal amount being prepaid or pursuant
to a yield maintenance formula.
"Primary Serviced Mortgage Loan" shall mean any of the
Mortgage Loans identified on Exhibit B-1I hereto.
"Primary Servicing Fee Rate" shall mean, with respect to any
Primary Serviced Mortgage Loan (or successor REO Mortgage Loan), the excess, if
any, of the related Master Servicing Fee Rate over two (2) basis points.
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"Primary Servicing Office" shall mean the office of the Master
Servicer or the Special Servicer, as the context may require, that is primarily
responsible for such party's servicing obligations hereunder.
"Prime Rate" shall mean the "prime rate" published in the
"Money Rates" section of The Wall Street Journal, as such "prime rate" may
change from time to time. If The Wall Street Journal ceases to publish the
"prime rate", then the Certificate Administrator, in its sole discretion, shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi- governmental body, then the Certificate
Administrator shall select a comparable interest rate index. In either case,
such selection shall be made by the Certificate Administrator in its sole
discretion and the Certificate Administrator shall notify the Trustee, the
Master Servicer and the Special Servicer in writing of its selection.
"Principal Balance Certificate" shall mean any of the
Certificates designated as such in Section 2.09(e).
"Principal Distribution Amount" shall mean:
(a) with respect to any REMIC I Regular Interest for any
Distribution Date, an amount equal to that portion, if any, of the
Total Principal Distribution Amount for such Distribution Date that is
attributable to each and every Mortgage Loan and/or REO Mortgage Loan,
as the case may be, that relates to such REMIC I Regular Interest; and
(b) with respect to any Class of Principal Balance
Certificates (and, accordingly, with respect to that Class's
Corresponding REMIC II Regular Interest) for any Distribution Date, an
amount equal to that portion, if any, of the Total Principal
Distribution Amount for such Distribution Date that is allocable to
such Class of Certificates as provided below in this definition.
For purposes of the foregoing, for so long as the Class A Certificates remain
outstanding, the Total Principal Distribution Amount for each Distribution Date
shall be allocated to the Class A Certificates, up to the lesser of (i) the
aggregate of the Class Principal Balances of the Class A Certificates
outstanding immediately prior to such Distribution Date and (ii) the entire such
Total Principal Distribution Amount. The portion of the Total Principal
Distribution Amount for each Distribution Date that is so allocable to the Class
A Certificates shall, in turn, be allocated as between the Class A-1
Certificates and the Class A-2 Certificates as follows: (i) prior to the Senior
Principal Distribution Cross-Over Date (or, if there is no Senior Principal
Distribution Cross-Over Date, prior to the Final Distribution Date), first, to
the Class A-1 Certificates, up to the lesser of (A) the Class Principal Balance
of the Class A-1 Certificates outstanding immediately prior to the subject
Distribution Date and (B) the entire such Total Principal Distribution Amount,
and then, to the Class A-2 Certificates; and (ii) on and after the Senior
Principal Distribution Cross-Over Date (and, in any event, on the Final
Distribution Date), to the Class A-1 Certificates and the Class A-2 Certificates
on a pro rata basis in accordance with the respective Class Principal Balances
thereof outstanding immediately prior to the subject Distribution Date. After
the Class Principal Balances of the Class A Certificates have been reduced to
zero, the Total Principal Distribution Amount for each Distribution Date (net of
any portion thereof that may have been allocated to the Class A
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Certificates in retirement thereof pursuant to the prior two sentences) shall be
allocated among the respective Classes of the Subordinate Principal Balance
Certificates, sequentially in the following order and, in the case of each such
Class of Subordinate Principal Balance Certificates, up to the lesser of (i) the
Class Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date and (ii) the remaining unallocated portion of
the Total Principal Distribution Amount for such Distribution Date: first, to
the Class B Certificates; second, to the Class C Certificates; third, to the
Class D Certificates; fourth, to the Class E Certificates; fifth, to the Class F
Certificates; sixth, to the Class G Certificates; seventh, to the Class H
Certificates; eighth, to the Class J Certificates; ninth, to the Class K
Certificates; tenth, to the Class L Certificates; eleventh, to the Class M
Certificates; twelfth, to the Class N Certificates; and thirteenth, to the Class
P Certificates.
"Principal Prepayment" shall mean any voluntary payment of
principal made by the Borrower on a Mortgage Loan that is received (and, subject
to applicable law and the terms and conditions of this Agreement and the related
loan documents, is to be applied in reduction of the principal balance of such
Mortgage Loan) in advance of such payment's scheduled Due Date.
"Prospectus" shall mean the Base Prospectus and the Prospectus
Supplement, together.
"Prospectus Supplement" shall mean that certain prospectus
supplement dated December 12, 2000, relating to the Registered Certificates,
that is a supplement to the Base Prospectus.
"Proposed Plan" shall have the meaning assigned thereto in
Section 3.17(a)(iii).
"PTE" shall mean prohibited transaction exemption.
"Purchase Price" shall mean, with respect to any Mortgage Loan
(or REO Property), a cash price equal to the aggregate of (a) the outstanding
principal balance of such Mortgage Loan (or the related REO Mortgage Loan) as of
the date of purchase, (b) all accrued and unpaid interest on such Mortgage Loan
(or the related REO Mortgage Loan) at the related Mortgage Rate (exclusive of
any portion of such interest that represents Post-ARD Additional Interest) to,
but not including, the Due Date occurring in the Collection Period during which
the applicable purchase or repurchase occurs, (c) all related unreimbursed
Servicing Advances, (d) all accrued and unpaid Advance Interest with respect to
any related Advances, and (e) solely in the case of a repurchase by or on behalf
of a Mortgage Loan Seller pursuant to or as contemplated by the related Mortgage
Loan Purchase Agreement, to the extent not otherwise included in the amount
described in clause (c) of this definition, any reasonable out-of-pocket costs
and expenses incurred by the Master Servicer, the Special Servicer, the Trustee
or the agent of any of them (on behalf of the Trust) in enforcing the obligation
of such Person to purchase such Mortgage Loan.
"Qualified Appraiser" shall mean, in connection with the
appraisal of any Mortgaged Property or REO Property, an Independent
MAI-designated appraiser with at least five years of experience in respect of
the relevant geographic location and property type.
"Qualified Institutional Buyer" shall mean a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act.
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"Qualified Insurer" shall mean an insurance company or
security or bonding company qualified to write the related Insurance Policy in
the relevant jurisdiction.
"Rated Certificate" shall mean any of the Certificates to
which a rating has been assigned by either Rating Agency at the request of the
Depositor.
"Rated Final Distribution Date" shall mean the Distribution
Date in December 2033.
"Rating Agency" shall mean each of Moody's and S&P.
"Realized Loss" shall mean:
(1) with respect to each defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to
any successor REO Mortgage Loan as to which a Final Recovery
Determination has been made as to the related REO Property, an amount
(not less than zero) equal to (a) the unpaid principal balance of such
Mortgage Loan or REO Mortgage Loan, as the case may be, as of the
commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(c) of this definition, all unpaid interest
accrued in respect of such Mortgage Loan or REO Mortgage Loan, as the
case may be, to but not including the related Due Date in the
Collection Period in which the Final Recovery Determination was made
(exclusive, however, of any portion of such unpaid interest that
constitutes Default Interest or, in the case of an ARD Loan after its
Anticipated Repayment Date, Post-ARD Additional Interest), minus (c)
all payments and proceeds, if any, received in respect of such Mortgage
Loan or REO Mortgage Loan, as the case may be, during the Collection
Period in which such Final Recovery Determination was made (net of any
related Servicing Advances reimbursed therefrom and any related
Liquidation Expenses paid therefrom);
(2) with respect to each defaulted Mortgage Loan as to
which any portion of the principal or past due interest payable
thereunder was canceled in connection with a bankruptcy, insolvency or
similar proceeding involving the related Borrower or a modification,
waiver or amendment of such Mortgage Loan granted or agreed to by the
Special Servicer pursuant to Section 3.20, the amount of such principal
or past due interest (other than any Default Interest and, in the case
of an ARD Loan after its Anticipated Repayment Date, Post-ARD
Additional Interest) so canceled; and
(3) with respect to each defaulted Mortgage Loan as to
which the Mortgage Rate thereon has been permanently reduced and not
recaptured for any period in connection with a bankruptcy, insolvency
or similar proceeding involving the related Borrower or a modification,
waiver or amendment of such Mortgage Loan granted or agreed to by the
Special Servicer pursuant to Section 3.20, the amount of any consequent
reduction in the interest portion of each successive Monthly Payment
due thereon (each such Realized Loss to be deemed to have been incurred
on the Due Date for each affected Monthly Payment).
"Record Date" shall mean, with respect to any Distribution
Date, the last Business Day of the month immediately preceding the month in
which such Distribution Date occurs.
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"Registered Certificate" shall mean any Certificate that has
been subject to registration under the Securities Act. As of the Closing Date,
the Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates constitute Registered Certificates.
"Reimbursement Rate" shall mean the rate per annum applicable
to the accrual of Advance Interest, which rate per annum is equal to the Prime
Rate.
"REMIC" shall mean a "real estate mortgage investment conduit"
as defined in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets designated
as such in Section 2.10(a)
"REMIC I Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and,
in each such case, designated as a "regular interest" in REMIC I. The REMIC I
Regular Interests have the designations and terms provided for in Section 2.10.
"REMIC I Remittance Rate" shall mean the per annum rate at
which interest accrues in respect of any REMIC I Regular Interest during any
Interest Accrual Period, as set forth in or otherwise calculated in accordance
with Section 2.10(f).
"REMIC I Residual Interest" shall mean the sole uncertificated
"residual interest", within the meaning of Section 860G(a)(2) of the Code, in
REMIC I issued pursuant to this Agreement.
"REMIC II" shall mean the segregated pool of assets designated
as such in Section 2.12(a).
"REMIC II Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
and, in each such case, designated as a "regular interest" in REMIC II. The
REMIC II Regular Interests have the designations and terms provided for in
Section 2.12.
"REMIC II Regular Interest A-1" shall mean the REMIC II
Regular Interest which bears the designation "A-1".
"REMIC II Regular Interest A-2" shall mean the REMIC II
Regular Interest which bears the designation "A-2".
"REMIC II Regular Interest B" shall mean the REMIC II Regular
Interest which bears the designation "B".
"REMIC II Regular Interest C" shall mean the REMIC II Regular
Interest which bears the designation "C".
"REMIC II Regular Interest D" shall mean the REMIC II Regular
Interest which bears the designation "D".
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"REMIC II Regular Interest E" shall mean the REMIC II Regular
Interest which bears the designation "E".
"REMIC II Regular Interest F" shall mean the REMIC II Regular
Interest which bears the designation "F".
"REMIC II Regular Interest G" shall mean the REMIC II Regular
Interest which bears the designation "G".
"REMIC II Regular Interest H" shall mean the REMIC II Regular
Interest which bears the designation "H".
"REMIC II Regular Interest J" shall mean the REMIC II Regular
Interest which bears the designation "J".
"REMIC II Regular Interest K" shall mean the REMIC II Regular
Interest which bears the designation "K".
"REMIC II Regular Interest L" shall mean the REMIC II Regular
Interest which bears the designation "L".
"REMIC II Regular Interest M" shall mean the REMIC II Regular
Interest which bears the designation "M".
"REMIC II Regular Interest N" shall mean the REMIC II Regular
Interest which bears the designation "N".
"REMIC II Regular Interest P" shall mean the REMIC II Regular
Interest which bears the designation "P".
"REMIC II Remittance Rate" shall mean the per annum rate at
which interest accrues in respect of any REMIC II Regular Interest during any
Interest Accrual Period, as set forth in or otherwise calculated in accordance
with Section 2.12(f).
"REMIC II Residual Interest" shall mean the sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in REMIC II issued pursuant to this Agreement.
"REMIC III" shall mean the segregated pool of assets
designated as such in Section 2.14(a).
"REMIC III Regular Interest Certificate" shall mean any of the
Certificates designated as such in Section 2.09(h).
"REMIC III Residual Interest" shall mean the sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in REMIC III issued pursuant to this Agreement.
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"REMIC Pool" shall mean any of REMIC I, REMIC II or REMIC III
or any Loan REMIC.
"REMIC Provisions" shall mean the provisions of the federal
income tax law relating to real estate mortgage investment conduits, which
appear at Sections 860A through 860G of Subchapter M of Chapter 1 of the Code,
and related provisions, and proposed, temporary and final Treasury regulations
and any published rulings, notices and announcements promulgated thereunder, as
the foregoing may be in effect from time to time.
"REMIC Sub-Account" shall mean a sub-account of the
Distribution Account established pursuant to Section 3.04(b), which sub-account
shall constitute an asset of the Trust Fund and REMIC I, but not an asset of
either Grantor Trust Pool.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean a segregated custodial account or
accounts created and maintained by the Special Servicer pursuant to Section
3.16(b) in the name of the Trustee in trust for the Certificateholders, which
shall be entitled "Lennar Partners, Inc. [or the name of any successor Special
Servicer], as Special Servicer, on behalf of Wells Fargo Bank Minnesota, N.A.
[or the name of any successor Trustee], as Trustee, in trust for the registered
holders of Salomon Brothers Mortgage Securities VII, Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-C3, REO Account".
"REO Acquisition" shall mean the acquisition of any REO
Property pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of
any REO Property pursuant to Section 3.18(d).
"REO Extension" shall have the meaning assigned thereto in
Section 3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan deemed for
purposes hereof to be outstanding with respect to each REO Property. Each REO
Mortgage Loan shall be deemed to provide for monthly payments of principal
and/or interest equal to its Assumed Monthly Payment and otherwise to have the
same terms and conditions as its predecessor Mortgage Loan (such terms and
conditions to be applied without regard to the default on such predecessor
Mortgage Loan or the Trust's acquisition of the subject REO Property). Each REO
Mortgage Loan shall be deemed to have an initial unpaid principal balance and
Stated Principal Balance equal to the unpaid principal balance and Stated
Principal Balance, respectively, of its predecessor Mortgage Loan as of the date
of the related REO Acquisition. All Monthly Payments (other than any Balloon
Payment), Assumed Monthly Payments (in the case of a Balloon Mortgage Loan
delinquent in respect of its Balloon Payment) and other amounts due and owing,
or deemed to be due and owing, in respect of the predecessor Mortgage Loan as of
the date of the related REO Acquisition, shall be deemed to continue to be due
and owing in respect of an REO Mortgage Loan. In addition, all amounts payable
or reimbursable to the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including any unpaid or unreimbursed Servicing Fees and
Advances (together with any related
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unpaid Advance Interest), shall continue to be payable or reimbursable in the
same priority and manner pursuant to Section 3.05(a) to the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent, as the case may be, in
respect of an REO Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired by the
Special Servicer on behalf of the Trust for the benefit of the
Certificateholders through foreclosure, acceptance of a deed in lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and
proceeds derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section
3.17(a).
"Request for Release" shall mean a request signed by a
Servicing Officer of, as applicable, the Master Servicer in the form of Exhibit
D-1 attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal Loan" shall mean any Mortgage Loan (and
any successor REO Mortgage Loan) as to which an Appraisal Trigger Event has
occurred, provided that a Mortgage Loan shall cease to be a Required Appraisal
Loan if and when, following the occurrence of the most recent Appraisal Trigger
Event with respect thereto, such Mortgage Loan has become a Corrected Mortgage
Loan and has remained current for at least three consecutive Monthly Payments,
and no other Appraisal Trigger Event has occurred with respect thereto during
the preceding three months.
"Required Claims-Paying Rating" shall mean, with respect to
any insurance carrier, a claims-paying ability or financial strength rating of
"A2" or better from Moody's (or, if not rated by Moody's, rated at least
"A-VIII" by A.M. Best Company) and "A" or better from S&P unless, in the case of
either Rating Agency, such Rating Agency has confirmed in writing that an
insurance company with lower or fewer claims-paying ability ratings shall not
result, in and of itself, in an Adverse Rating Event with respect to any Class
of Rated Certificates.
"Reserve Account" shall mean any of the accounts established
and maintained pursuant to Section 3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan,
any amounts delivered by the related Borrower to be held in escrow by or on
behalf of the mortgagee representing: (i) reserves for repairs, replacements,
capital improvements and/or environmental testing and remediation with respect
to the related Mortgaged Property; (ii) reserves for tenant improvements and
leasing commissions; (iii) reserves for debt service; or (iv) amounts to be
applied as a Principal Prepayment on such Mortgage Loan or held as Additional
Collateral in the event that certain leasing or other economic criteria in
respect of the related Mortgaged Property are not met.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any Fiscal Agent, the Certificate Registrar, the Custodian, the Tax
Administrator or the Certificate Administrator, the President, the Treasurer,
the Secretary, any Vice President, any Assistant Vice President, any Trust
Officer, any Assistant Secretary or any other officer of the Trustee, any Fiscal
Agent, the Certificate Registrar, the Custodian, the Tax Administrator or the
Certificate
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Administrator, as applicable, customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement.
"Restricted Servicer Reports" shall mean each of the Servicer
Watch List, the Operating Statement Analysis Report, the NOI Adjustment
Worksheet, the Financial File and the Comparative Financial Status Report.
"S&P" shall mean Standard & Poor's Ratings Service, a division
of The McGraw-Hill Companies, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the other parties to this Agreement, and specific ratings of
Standard & Poor's Ratings Service, a division of The McGraw-Hill Companies, Inc.
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated. References herein to "applicable rating category" (other
than such references to "highest applicable rating category") shall, in the case
of S&P, be deemed to refer to such applicable rating category of S&P, without
regard to any plus or minus or other comparable rating qualification.
"SBRC" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"SBRC Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"SBRC Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Senior Certificate" shall mean any of the Certificates
designated as such in Section 2.09(c).
"Senior Principal Distribution Cross-Over Date" shall mean the
first Distribution Date as of which the aggregate of the Class Principal
Balances of the Class A-1 Certificates and the Class A-2 Certificates
outstanding immediately prior thereto equals or exceeds the sum of (a) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, plus (b) the lesser of (i) the
Total Principal Distribution Amount for such Distribution Date and (ii) the
portion of the Standard Available Distribution Amount for such Distribution Date
that will remain after all distributions of interest to be made on the Senior
Certificates on such Distribution Date pursuant to Section 4.01(a) have been so
made.
"Servicing Account" shall mean any of the accounts established
and maintained pursuant to Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses incurred, or to be incurred, as the
context requires, by the Master Servicer or the Special Servicer (or, if
applicable, the Trustee or any Fiscal Agent) in connection
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with the servicing of a Mortgage Loan after a default, delinquency or other
unanticipated event, or in connection with the administration of any REO
Property, including the cost of (a) compliance with the obligations of the
Master Servicer and/or the Special Servicer set forth in Sections 3.03(c) and
3.09, (b) the preservation, insurance, restoration, protection and management of
a Mortgaged Property, (c) obtaining any Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds in respect of any such Mortgage Loan or any REO
Property, (d) any enforcement or judicial proceedings with respect to any such
Mortgage Loan, including foreclosures and similar proceedings, and (e) the
operation, management, maintenance and liquidation of any REO Property; provided
that notwithstanding anything to the contrary, "Servicing Advances" shall not
include (A) allocable overhead of the Master Servicer or the Special Servicer,
such as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
or (B) costs incurred by either such party or any Affiliate thereof in
connection with its purchase of any Mortgage Loan or REO Property pursuant to
any provision of this Agreement.
"Servicing Fees" shall mean, with respect to any Mortgage Loan
or REO Mortgage Loan, the Master Servicing Fee and, if applicable, the Special
Servicing Fee.
"Servicing File" shall mean any documents (other than
documents required to be part of the related Mortgage File, but including any
correspondence file) in the possession of the Master Servicer or the Special
Servicer and relating to the origination and servicing of any Mortgage Loan or
the administration of any REO Property.
"Servicing Officer" shall mean any officer or employee of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee, the Certificate Administrator and the Depositor on the Closing Date, as
such list may be amended from time to time by the Master Servicer or the Special
Servicer, as applicable.
"Servicing Return Date" shall mean, with respect to any
Corrected Mortgage Loan, the date that servicing thereof is returned by the
Special Servicer to the Master Servicer pursuant to Section 3.21(a).
"Servicing Standard" shall mean, with respect to each of the
Master Servicer and the Special Servicer, to service and administer the Mortgage
Loans and REO Properties for which such Person is responsible hereunder: (a)
with the same care, skill and diligence as is normal and usual in its general
mortgage servicing and REO property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder; (b) with a view to the timely collection of all scheduled
payments of principal and interest due under the Mortgage Loans and, if a
Mortgage Loan comes into and continues in default and if, in the reasonable
judgment of the Special Servicer, no satisfactory arrangements can be made for
the collection of the delinquent payments, the maximization of the recovery on
such Mortgage Loan to the Certificateholders (as a collective whole) on a
present value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the related Net
Mortgage Rate); and (c) without regard to any conflicts of interest that may
arise from: (i) any known relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have
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with the related Borrower, (ii) the ownership of any Certificate by the Master
Servicer or the Special Servicer, as the case may be, or by any Affiliate
thereof, (iii) the Master Servicer's obligation to make Advances, (iv) the
Special Servicer's obligation to make (or to direct the Master Servicer to make)
Servicing Advances, (v) the right of the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof to receive reimbursement
of costs, or the sufficiency of any compensation payable to it, hereunder or
with respect to any particular transaction, (vi) any ownership, servicing or
management by the Master Servicer or the Special Servicer, as the case may be,
or any Affiliate thereof of any other real estate loans or real property not
included in or securing, as the case may be, the Mortgage Pool or the right to
service or manage for others any such other real estate loans or real
properties; and (vii) any obligation of the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof to repurchase any
Mortgage Loan under the related Mortgage Loan Purchase Agreement or to cure a
Material Document Defect or Material Breach.
"Servicing Transfer Event" shall mean, with respect to any
Mortgage Loan, any of the following events:
(a) the related Borrower has failed to make when due any
Monthly Payment (including a Balloon Payment) or any other payment
(including the payment of Post-ARD Additional Interest) required under
the related Mortgage Note or the related Mortgage(s), which failure
(except in the case of a Balloon Payment) continues, or the Master
Servicer determines, in its reasonable judgment, will continue,
unremedied for 60 days; or
(b) the Master Servicer has determined, in its reasonable
judgment, that a default in making a Monthly Payment (including a
Balloon Payment) or any other material payment required under the
related Mortgage Note or the related Mortgage(s) is likely to occur in
the foreseeable future and (except in the case of a Balloon Payment)
either (i) such default is not likely to be cured within 60 days
following the occurrence thereof or (ii) the related Borrower has
requested a material modification of the related Mortgage Loan (other
than a waiver of a "due-on-sale" clause permitted under Section 3.08);
or
(c) the related Borrower has transferred or permitted the
transfer of the related Mortgaged Property or direct or indirect
ownership or control of the Borrower or management of the related
Mortgaged Property, or has changed the management of the related
Mortgaged Property, in any such case in violation of the related loan
documents; or
(d) the Master Servicer has determined, in its reasonable
judgment, that a default, other than as described in clause (a), clause
(b) or clause (c) above, has occurred that may materially impair the
value of the related Mortgaged Property as security for the Mortgage
Loan, which default has continued unremedied for the applicable cure
period under the terms of the Mortgage Loan (or, if no cure period is
specified, for 60 days); or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary action
against the related Borrower under any present or future federal or
state bankruptcy, insolvency or similar law or the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding, or
for the winding-up or liquidation of its affairs,
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shall have been entered against the related Borrower, and such decree
or order shall have remained in force undischarged, undismissed or
unstayed for a period of 60 days; or
(f) the related Borrower shall have consented to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceeding of or relating to such Borrower or of or relating
to all or substantially all of its property; or
(g) the related Borrower shall have admitted in writing
its inability to pay its debts generally as they become due, filed a
petition to take advantage of any applicable insolvency or
reorganization statute, made an assignment for the benefit of its
creditors, or voluntarily suspended payment of its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property or Properties.
A Servicing Transfer Event with respect to any Mortgage Loan
shall cease to exist:
(w) in the case of the circumstances described in clause
(a) above, if and when the related Borrower has made three consecutive
full and timely Monthly Payments under the terms of such Mortgage Loan
(as such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related Borrower or by
reason of a modification, waiver or amendment granted or agreed to by
the Special Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses
(b), (e), (f) and (g) above, if and when such circumstances cease to
exist in the reasonable judgment of the Special Servicer;
(y) in the case of the circumstances described in clauses
(c) and (d) above, if and when such default is cured in the reasonable
judgment of the Special Servicer; and
(z) in the case of the circumstances described in clause
(h) above, if and when such proceedings are terminated.
"Sole Certificateholder" shall mean any holder of 100% of the
Certificates.
"Specially Serviced Mortgage Loan" shall mean any Mortgage
Loan as to which any Servicing Transfer Event exists.
"Special Servicer" shall mean Lennar, in its capacity as
special servicer hereunder, or any successor Special Servicer appointed as
herein provided.
"Special Servicing Fee" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan, the fee designated
as such and payable to the Special Servicer pursuant to the first paragraph of
Section 3.11(c).
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"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% per annum.
"SSB" shall mean Salomon Smith Barney Inc. or its successors
in interest.
"Standard Available Distribution Amount" shall mean, with
respect to any Distribution Date, an amount equal to: (a) the sum of, without
duplication, (i) all amounts on deposit in the Distribution Account as of 11:00
a.m., New York City time, on such Distribution Date, (ii) to the extent not
included in the amount described in clause (a)(i) of this definition, any P&I
Advances and/or Compensating Interest Payments that were made in respect of such
Distribution Date, (iii) to the extent not included in the amount described in
clause (a)(i) of this definition, the aggregate amount transferred (pursuant to
Section 3.05(d)) from the Gain on Sale Reserve Fund to the Distribution Account
in respect of such Distribution Date, and (iv) to the extent not included in the
amount described in clause (a)(i) of this definition, if such Distribution Date
occurs during March 2001 or during March of any year thereafter, the aggregate
of the Interest Reserve Amounts with respect to the Interest Reserve Loans
transferred from the Interest Reserve Account to the Distribution Account during
such month of March for distribution on such Distribution Date; net of (b) any
portion of the amounts described in clause (a) of this definition that
represents, without duplication, one or more of the following"(i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including Principal
Prepayments) and interest, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums and/or Post-ARD Additional Interest; (iv) any
amounts payable or reimbursable to any Person from the Distribution Account
pursuant to clauses (ii) through (v) of Section 3.05(b), (v) if such
Distribution Date occurs during February 2001 or during February of any year
thereafter or during January 2001 or during January of any year thereafter that
is not a leap year, the aggregate of the Interest Reserve Amounts with respect
to the Interest Reserve Loans to be withdrawn (pursuant to Section 3.04(c) and
Section 3.05(b)(vi)) from the Distribution Account and deposited into the
Interest Reserve Account during such month of February or such month of January,
as the case may be, and held for future distribution, and (vi) any amounts
deposited in the Distribution Account in error; provided that the Standard
Available Distribution Amount for the Final Distribution Date shall be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(v) of this
definition.
"Startup Day" shall mean, with respect to each REMIC Pool, the
day designated as such in Section 2.10(a) (in the case of REMIC I), Section
2.12(a) (in the case of REMIC II), Section 2.14(a) (in the case of REMIC III) or
in the related Loan REMIC Declaration (in the case of any Loan REMIC), as
applicable.
"Stated Maturity Date" shall mean, with respect to any
Mortgage Loan, the Due Date specified in the related Mortgage Note (as in effect
on the Closing Date) on which the last payment of principal is due and payable
under the terms of such Mortgage Note, without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Borrower or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 and, in the case of an ARD Loan, without regard to its Anticipated
Repayment Date.
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"Stated Principal Balance" shall mean, with respect to any
Mortgage Loan (and any successor REO Mortgage Loan), a principal balance which
(a) initially shall equal the Cut-off Date Principal Balance of such Mortgage
Loan, and (b) shall be permanently reduced on each subsequent Distribution Date
(to not less than zero) by (i) that portion, if any, of the Total Principal
Distribution Amount for such Distribution Date attributable to such Mortgage
Loan (or successor REO Mortgage Loan), and (ii) the principal portion of any
Realized Loss incurred in respect of such Mortgage Loan (or successor REO
Mortgage Loan) during the related Collection Period; provided that, if a
Liquidation Event occurs in respect of any Mortgage Loan or REO Property, then
the "Stated Principal Balance" of such Mortgage Loan or of the related REO
Mortgage Loan, as the case may be, shall be zero commencing as of the
Distribution Date next following the end of the Collection Period in which such
Liquidation Event occurred.
"Subordinate Certificate" shall mean any of the Certificates
designated as such in Section 2.09(d).
"Subordinate Principal Balance Certificate" shall mean any of
the Certificates designated as such in Section 2.09(f).
"Sub-Servicer" shall mean any Person with which the Master
Servicer or the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract
between the Master Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the other hand, relating to servicing and administration of
Mortgage Loans as provided in Section 3.22.
"Tax Administrator" shall mean LaSalle, in its capacity as tax
administrator hereunder, or any successor tax administrator appointed as herein
provided.
"Tax Matters Person" shall mean, with respect to any REMIC
Pool, the Person designated as the "tax matters person" of such REMIC Pool in
the manner provided under Treasury regulation section 1.860F-4(d) and temporary
Treasury regulation section 301.6231(a)(7)-1T, which Person shall, pursuant to
Section 10.01(b), be the Plurality Class R Certificateholder.
"Tax Returns" shall mean the federal income tax return on IRS
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holder of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each REMIC Pool due to its classification as a REMIC
under the REMIC Provisions, together with any and all other information, reports
or returns that may be required to be furnished to the Certificateholders or
filed with the IRS under any applicable provisions of federal tax law or any
other governmental taxing authority under applicable state or local tax laws.
"Termination Price" shall have the meaning assigned thereto in
Section 9.01.
"Total Principal Distribution Amount" shall mean:
(a) with respect to any Distribution Date prior to the
Final Distribution Date, an amount equal to the aggregate (without
duplication) of the following --
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(i) all payments of principal (including Principal
Prepayments) received on the Mortgage Loans during
the related Collection Period, in each case net of
any portion of the particular payment that represents
a Late Collection of principal for which a P&I
Advance was previously made for a prior Distribution
Date or that represents the principal portion of a
Monthly Payment due on or before the Cut-off Date or
on a Due Date subsequent to the end of the related
Collection Period,
(ii) all scheduled payments of principal due in respect of
the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period that
were received (other than as part of a Principal
Prepayment) prior to the related Collection Period,
(iii) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received on any of the Mortgage
Loans during the related Collection Period that were
identified and applied by the Master Servicer as
recoveries of principal of such Mortgage Loans in
accordance with Section 1.03, in each case net of any
portion of such proceeds that represents a Late
Collection of principal due on or before the Cut-off
Date or for which a P&I Advance was previously made
for a prior Distribution Date,
(iv) all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and REO Revenues received in
respect of any REO Properties during the related
Collection Period that were identified and applied by
the Master Servicer as recoveries of principal of the
related REO Mortgage Loans in accordance with Section
1.03, in each case net of any portion of such
proceeds and/or revenues that represents a Late
Collection of principal due on or before the Cut-off
Date or for which a P&I Advance was previously made
for a prior Distribution Date,
(v) the respective principal portions of all P&I Advances
made in respect of the Mortgage Loans and any REO
Mortgage Loans with respect to such Distribution
Date, and
(vi) the excess, if any, of the Total Principal
Distribution Amount for the prior Distribution Date,
if any, over the total distributions of principal
made on such prior Distribution Date with respect to
the Principal Balance Certificates; and
(b) with respect to the Final Distribution Date, an
amount equal to the aggregate Stated Principal Balance of the entire
Mortgage Pool outstanding immediately prior to the Final Distribution
Date.
"Transfer" shall mean any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"Transfer Affidavit and Agreement" shall have the meaning
assigned thereto in Section 5.02(d).
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"Transferee" shall mean any Person who is acquiring by
Transfer any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing by
Transfer any Ownership Interest in a Certificate.
"Treasury Rate" shall have the meaning assigned thereto in
Section 4.01(d).
"Trust" shall mean the trust created hereby.
"Trustee" shall mean Wells Fargo, in its capacity as trustee
hereunder, or any successor trustee appointed as herein provided.
"Trustee's Fee" shall mean, with respect to any Mortgage Loan
or REO Mortgage Loan, the fee designated as such and payable to the Trustee
pursuant to Section 8.05(a).
"Trustee's Fee Rate" shall mean 0.0011% per annum.
"Trust Fund" shall mean, collectively, all of the assets of
all the REMIC Pools and Grantor Trust Pools.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement
executed and filed pursuant to the Uniform Commercial Code, as in effect in any
relevant jurisdiction.
"Uncertificated Principal Balance" shall mean the principal
balance outstanding from time to time of any REMIC I Regular Interest
(calculated in accordance with Section 2.10(e) hereof) or any REMIC II Regular
Interest (calculated in accordance with Section 2.12(e) hereof).
"Underwriter Exemption" shall mean PTE 91-23, as such may be
amended from time to time.
"Underwriters" shall mean, collectively, SSB, GCM, ABN AMRO,
CSI, DBS and J.P. Morgan.
"Unfunded Principal Balance Reduction" shall mean any
reduction made in the Class Principal Balance of any Class of Principal Balance
Certificates pursuant to Section 4.04(a), the Uncertificated Principal Balance
of any REMIC II Regular Interest pursuant to Section 4.04(b) or the
Uncertificated Principal Balance of any REMIC I Regular Interest pursuant to
Section 4.04(c).
"United States Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust
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and one or more United States persons have the authority to control all
substantial decisions of the trust, all within the meaning of Section
7701(a)(30) of the Code.
"Unrestricted Servicer Reports" shall mean each of the files
and reports comprising the CMSA Investor Loan Reporting Package (excluding the
Bond Level File, the Collateral Summary File and the Restricted Servicer
Reports).
"USAP" shall mean the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America.
"USPAP" shall mean the Uniform Standards of Professional
Appraisal Practices.
"Voting Rights" shall mean the voting rights evidenced by the
respective Certificates. At all times during the term of this Agreement, 98% of
the Voting Rights shall be allocated among all the Holders of the various
Classes of Principal Balance Certificates in proportion to the respective Class
Principal Balances of such Classes, 2% of the Voting Rights shall be allocated
to the Holders of the Class X Certificates, and 0% of the Voting Rights shall be
allocated to the Holders of the Class R and Class Y Certificates. Voting Rights
allocated to a particular Class of Certificateholders shall be allocated among
such Certificateholders in proportion to the respective Percentage Interests
evidenced by their respective Certificates.
"Wells Fargo" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Workout Fee" shall mean, with respect to each Corrected
Mortgage Loan, the fee designated as such and payable to the Special Servicer
pursuant to the second paragraph of Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected
Mortgage Loan, 1.0%.
"Yield Maintenance Certificates" shall mean any of the
Certificates designated as such in Section 2.09(i).
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as
the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with United States
generally accepted accounting principles as in effect from time to
time;
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(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference to
a document are to designated Articles, Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference
to a Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also apply
to Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto",
"hereby" and other words of similar import refer to this Agreement as a
whole and not to any particular provision; and
(vi) the terms "include" and "including" shall mean
without limitation by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the
Mortgage Pool.
(a) All amounts collected in respect of any
Cross-Collateralized Group in the form of payments from Borrowers, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied by
the Master Servicer among the Mortgage Loans constituting such
Cross-Collateralized Group in accordance with the express provisions of the
related loan documents and, in the absence of such express provisions, on a pro
rata basis in accordance with the respective amounts then "due and owing" as to
each such Mortgage Loan. All amounts collected in respect of or allocable to any
particular individual Mortgage Loan (whether or not such Mortgage Loan
constitutes part of a Cross-Collateralized Group) in the form of payments from
Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
shall be applied to amounts due and owing under the related Mortgage Note, loan
agreement (if any) and Mortgage (including for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage
Note, loan agreement (if any) and Mortgage and, in the absence of such express
provisions or if and to the extent that such terms authorize the lender to use
its discretion, shall be applied as follows: first, as a recovery of any related
and unreimbursed Servicing Advances and, if applicable, unpaid Liquidation
Expenses; second, as a recovery of accrued and unpaid interest on such Mortgage
Loan to, but not including, the date of receipt (or, in the case of a full
Monthly Payment from any Borrower, through the related Due Date), exclusive,
however, of any portion of such accrued and unpaid interest that constitutes
Default Interest or, in the case of an ARD Loan after its Anticipated Repayment
Date, that constitutes Post-ARD Additional Interest; third, as a recovery of
principal of such Mortgage Loan then due and owing, including by reason of
acceleration of the Mortgage Loan following a default thereunder (or, if a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of principal to the extent of its entire remaining unpaid principal balance);
fourth, unless a Liquidation Event has occurred in respect of such Mortgage
Loan, as a recovery of amounts to be currently applied to the payment of, or
escrowed for the future payment of, real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items; fifth, unless a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of Reserve Funds to the extent then required to be held in escrow; sixth, as a
recovery of any Prepayment Premium then due and owing under such Mortgage Loan;
seventh, as a recovery of any Default Charges then due and owing under such
Mortgage Loan; eighth, as a recovery of any assumption fees and modification
fees then due and owing under
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such Mortgage Loan; ninth, as a recovery of any other amounts then due and owing
under such Mortgage Loan other than remaining unpaid principal and, in the case
of an ARD Loan after its Anticipated Repayment Date, other than Post-ARD
Additional Interest; tenth, as a recovery of any remaining principal of such
Mortgage Loan to the extent of its entire remaining unpaid principal balance;
and, eleventh, in the case of an ARD Loan after its Anticipated Repayment Date,
as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD
Loan to but not including the date of receipt.
(b) Collections in respect of each REO Property
(exclusive of amounts to be applied to the payment of the costs of operating,
managing, maintaining and disposing of such REO Property) shall be applied for
purposes of this Agreement (including for purposes of determining distributions
on the Certificates pursuant to Article IV and additional compensation payable
to the Master Servicer, the Special Servicer and any Sub-Servicers and also for
reporting purposes) as follows: first, as a recovery of any related and
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest on the related REO Mortgage
Loan to, but not including, the Due Date in the Collection Period of receipt,
exclusive, however, of any portion of such accrued and unpaid interest that
constitutes Default Interest or, in the case of an REO Mortgage Loan that
relates to an ARD Loan after its Anticipated Repayment Date, that constitutes
Post-ARD Additional Interest; third, as a recovery of principal of the related
REO Mortgage Loan to the extent of its entire unpaid principal balance; fourth,
as a recovery of any Prepayment Premium deemed to be due and owing in respect of
the related REO Mortgage Loan; fifth, as a recovery of any other amounts deemed
to be due and owing in respect of the related REO Mortgage Loan (other than, in
the case of an REO Mortgage Loan that relates to an ARD Loan after its
Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest);
and sixth, in the case of an REO Mortgage Loan that relates to an ARD Loan after
its Anticipated Repayment Date, any accrued and unpaid Post-ARD Additional
Interest.
(c) For the purposes of this Agreement, Post-ARD
Additional Interest on an ARD Loan or a successor REO Mortgage Loan shall be
deemed not to constitute principal or any portion thereof and shall not be added
to the unpaid principal balance or Stated Principal Balance of such ARD Loan or
successor REO Mortgage Loan, notwithstanding that the terms of the related loan
documents so permit. To the extent any Post-ARD Additional Interest is not paid
on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any
Mortgage Loan or REO Property and allocable to fees and charges owing in respect
of such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that
constitute Additional Master Servicing Compensation payable to the Master
Servicer and/or Additional Special Servicing Compensation payable to the Special
Servicer, are insufficient to cover the full amount of such fees and charges,
such amounts shall be allocated between such of those fees and charges as are
payable to the Master Servicer, on the one hand, and such of those fees and
charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements.
(e) The foregoing applications of amounts received in
respect of any Mortgage Loan or REO Property shall be determined by the Master
Servicer, in its reasonable judgment, and reflected in the appropriate monthly
report from the Master Servicer and in the appropriate monthly Distribution Date
Statement as provided in Section 4.02.
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SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Mortgage Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement, including each of the defined terms
set forth in Section 1.01, shall be interpreted in a manner consistent with this
Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR
INTERESTS, REMIC II REGULAR INTERESTS, REMIC III REGULAR
INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a trust be
established pursuant to this Agreement and, further, that such trust be
designated as "Salomon Brothers Commercial Mortgage Trust 2000-C3". Wells Fargo
is hereby appointed, and does hereby agree, to act as Trustee hereunder and, in
such capacity, to hold the Trust Fund in trust for the exclusive use and benefit
of all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby sell, assign, transfer and otherwise convey to the Trustee without
recourse for the benefit of the Certificateholders, all the right, title and
interest of the Depositor in, to and under (i) the Mortgage Loans, all payments
under and proceeds of the Mortgage Loans received after the Closing Date (other
than scheduled payments of interest and principal due on or before the Cut-off
Date), all Principal Prepayments and corresponding interest payments on the
Mortgage Loans received after the Cut-off Date through and including the Closing
Date, and all documents included in the related Mortgage Files and any related
Additional Collateral; (ii) any REO Property acquired in respect of any Mortgage
Loan; (iii) such funds or assets as from time to time are deposited in the
Collection Account, the Distribution Account, the Interest Reserve Account, the
Gain on Sale Reserve Fund and, if established, the REO Account; (iv) each
Mortgage Loan Purchase Agreement and the ABC Support Letter; (v) the Loan REMIC
Interests and the Loan REMIC Declarations; and (vi) all other assets included or
to be included in the Trust Fund. This conveyance is subject to the right of the
Master Servicer and the Designated Sub-Servicers to primary service (or to
perform select servicing duties with respect to) certain of the Mortgage Loans
and, in the case of the Mortgage Loans listed on Exhibit B-1E, subject to the
related Loan REMIC Declarations. In connection with the Depositor's assignment
above, the Depositor hereby directs the Trustee to execute the ABC Support
Letter substantially in the form of Exhibit C-2 attached hereto.
Under GAAP, the Depositor shall report: (i) its acquisition of the SBRC
Mortgage Loans from SBRC, pursuant to the SBRC Mortgage Loan Purchase Agreement,
as a purchase of such Mortgage Loans from SBRC; (ii) its acquisition of the GCFP
Mortgage Loans from GCFP, pursuant to the GCFP Mortgage Loan Purchase Agreement,
as a purchase of such Mortgages Loans from GCFP; (iii) its acquisition of the
AMCC Mortgage Loans from AMCC, pursuant to the AMCC Mortgage Loan Purchase
Agreement, as a purchase of such Mortgages Loans from AMCC; (iv) its acquisition
of the LaSalle Mortgage Loans from LaSalle, pursuant to the LaSalle Mortgage
Loan Purchase Agreement, as a purchase of such Mortgages Loans from LaSalle; and
(v) its transfer of the Mortgage Loans to the Trustee, pursuant to this Section
2.01(b), as a sale of the Mortgage Loans to the Trustee. In connection with the
foregoing, the Depositor shall cause all of its records to reflect such
acquisitions as purchases and such transfer as a sale (in each case, as opposed
to a secured loan).
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After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The conveyance of the Mortgage Loans (and, in the case of the
Mortgage Loans listed on Exhibit B-1E, the related Loan REMIC Interests) and the
related rights and property accomplished hereby is absolute and is intended by
the parties hereto to constitute an absolute transfer of the Mortgage Loans,
such Loan REMIC Interests and such other related rights and property by the
Depositor to the Trustee for the benefit of the Certificateholders. Furthermore,
it is not intended that such conveyance be a pledge of security for a loan. If
such conveyance is determined to be a pledge of security for a loan, however,
the parties hereto intend that the rights and obligations of the parties to such
loan shall be established pursuant to the terms of this Agreement. The parties
hereto also intend and agree that, in such event, (i) this Agreement shall
constitute a security agreement under applicable law, (ii) the Depositor shall
be deemed to have granted to the Trustee (in such capacity) a first priority
security interest in all of the Depositor's right, title and interest in and to
the assets constituting the Trust Fund, including the Mortgage Loans and Loan
REMIC Interests subject hereto from time to time, all principal and interest
received on or with respect to such Mortgage Loans and Loan REMIC Interests
after the Closing Date (other than scheduled payments of interest and principal
due and payable on such Mortgage Loans and the Loan REMIC Interests on or prior
to the Cut-off Date), all amounts held from time to time in the Collection
Account, the Distribution Account, the Interest Reserve Account, the Gain on
Sale Reserve Fund and, if established, the REO Account and all reinvestment
earnings on such amounts, and all of the Depositor's right, title and interest
under each Mortgage Loan Purchase Agreement and the ABC Support Letter, (iii)
the possession by the Trustee or its agent of the Mortgage Notes with respect to
the Mortgage Loans and the Loan REMIC Interests subject hereto from time to time
and such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or person designated by such secured party
for the purpose of perfecting such security interest under applicable law, and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor shall file or cause
to be filed, as a precautionary filing, a Form UCC-1 substantially in the form
attached as Exhibit J hereto in all appropriate locations in the State of New
York promptly following the initial issuance of the Certificates, and the
Trustee shall prepare, execute and file at each such office, continuation
statements with respect thereto, in each case within six months prior to the
fifth anniversary of the immediately preceding filing. The Depositor shall
cooperate in a reasonable manner with the Trustee in preparing and filing such
continuation statements. This Section 2.01(c) shall constitute notice to the
Trustee pursuant to any requirements of the UCC in effect in New York.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Sellers, pursuant to their respective
Mortgage Loan Purchase Agreements, to deliver to and deposit with, or cause to
be delivered to and deposited with, the Trustee or a Custodian appointed
thereby, on or before the Closing Date, the Mortgage File and any Additional
Collateral (other than Reserve Funds and Escrow Payments) for each Mortgage Loan
so assigned. The Depositor shall
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deliver to the Trustee or a Custodian appointed thereby and the Master Servicer
on or before the Closing Date a fully executed counterpart of each Mortgage Loan
Purchase Agreement.
(e) As soon as reasonably possible, and in any event within 30 days
after the later of (i) the Closing Date and (ii) the date on which all recording
information necessary to complete the subject document is received by the
Trustee or any Custodian appointed thereby, the Trustee or a Custodian on its
behalf is hereby authorized and shall, unless the related Mortgage Loan Seller
is doing so in accordance with the related Mortgage Loan Purchase Agreement,
complete (to the extent necessary) and cause to be submitted for recording or
filing, as the case may be, in the appropriate office for real property records
or UCC Financing Statements, as applicable, each assignment of Mortgage and
assignment of Assignment of Leases in favor of the Trustee referred to in
clauses (iv) and (v) of the definition of "Mortgage File" that has been received
by the Trustee or a Custodian on its behalf and each UCC-2 and UCC-3 in favor of
the Trustee referred to in clause (viii) of the definition of "Mortgage File"
that has been received by the Trustee or a Custodian on its behalf. Each such
assignment shall reflect that it should be returned by the public recording
office to the Trustee or the applicable Custodian on its behalf following
recording, and each such UCC-2 and UCC-3 shall reflect that the filed copy
thereof should be returned to the Trustee or the applicable Custodian on its
behalf following filing; provided that in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases the Trustee or a Custodian on its behalf shall, unless the
related Mortgage Loan Seller is doing so in accordance with the related Mortgage
Loan Purchase Agreement, obtain or cause to be obtained therefrom a certified
copy of the recorded original. Upon receipt, the Trustee or a Custodian on its
behalf shall, unless the related Mortgage Loan Seller is doing so in accordance
with the related Mortgage Loan Purchase Agreement, promptly forward copies of
such recorded or final documents to the Master Servicer. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Trustee or a Custodian on its behalf, at the
option of the Trustee, either (i) shall direct the related Mortgage Loan Seller
to prepare or cause to be prepared promptly, pursuant to the related Mortgage
Loan Purchase Agreement, a substitute therefor or cure such defect, as the case
may be, or (ii) shall prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter the Trustee or a Custodian
on its behalf shall, upon receipt thereof, cause the same to be duly recorded or
filed, as appropriate. If a Mortgage Loan Seller has been so notified and has
not responded within ten (10) Business Days, then the Trustee shall promptly
thereafter also so notify the Master Servicer, the Special Servicer, the Rating
Agencies and the Controlling Class Representative. As regards the reasonable
out-of-pocket costs and expenses incurred by the Trustee or any Custodian on its
behalf in connection with the recording and filing of documents pursuant to this
Section 2.01(e), the Trustee shall seek reimbursement from the related Mortgage
Loan Seller as and to the extent provided in the related Mortgage Loan Purchase
Agreement. The Depositor hereby represents and warrants that the Mortgage Loan
Sellers, pursuant to their respective Mortgage Loan Purchase Agreements, are
contractually obligated to provide the Trustee with a power of attorney to
enable the Trustee to record any loan documents that the Trustee or a Custodian
on its behalf has been unable to record.
(f) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Sellers, pursuant to their respective
Mortgage Loan Purchase Agreements, to deliver to and deposit with, or cause to
be delivered to and deposited with, the Master Servicer, on or before the
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Closing Date (or, if any of the following items are not in the actual possession
of a Mortgage Loan Seller, as soon as reasonably practical, but in any event
within 30 days, after the Closing Date): (i) copies of the Mortgage Files for
the respective Mortgage Loans; and (ii) originals or copies of all financial
statements, appraisals, environmental/engineering reports, leases, rent rolls
and tenant estoppels in the possession or under the control of the particular
Mortgage Loan Seller that relate to the Mortgage Loans and, to the extent they
are not required to be a part of a Mortgage File in accordance with the
definition thereof, originals or copies of all documents, certificates and
opinions in the possession or under the control of the particular Mortgage Loan
Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of the Mortgage Loans and that are necessary for
the ongoing servicing and administration of the Mortgage Loans; and (iii) all
unapplied Reserve Funds and Escrow Payments in the possession or under the
control of the particular Mortgage Loan Seller that relate to the respective
Mortgage Loans, other than those that are to be retained by a sub-servicer or
primary servicer that will continue to act on behalf of the Master Servicer. The
Master Servicer shall hold all such documents, records and funds on behalf of
the Trustee in trust for the benefit of the Certificateholders. The Master
Servicer shall not be liable to the Trust or any parties hereto for the failure
of the Mortgage Loan Seller to deliver any of the above-referenced documents.
(g) The Depositor shall be responsible for paying the on-going
surveillance fees of the Rating Agencies, which may be in the form of a one time
up-front payment.
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the Trustee,
by its execution and delivery of this Agreement, hereby accepts receipt on
behalf of the Trust, directly or through a Custodian on its behalf, of (i) the
Mortgage Loans and all documents delivered to it that constitute portions of the
related Mortgage Files, (ii) the Loan REMIC Interests and the Loan REMIC
Declarations, and (iii) all other assets delivered to it and included in the
Trust Fund, in good faith and without notice of any adverse claim, and declares
that it or a Custodian on its behalf holds and will hold such documents and any
other documents received by it that constitute portions of the Mortgage Files,
and that it holds and will hold the Mortgage Loans, the Loan REMIC Interests and
such other assets, together with any other assets subsequently delivered to it
that are to be included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. The Trustee or such
Custodian shall hold any Letter of Credit in a custodial capacity only and shall
have no obligation to maintain, extend the term of, enforce or otherwise pursue
any rights under such Letter of Credit. In connection with the foregoing, the
Trustee hereby certifies to each of the other parties hereto, the Mortgage Loan
Sellers, and the Controlling Class Representative that, as to each Mortgage
Loan, except as specifically identified in the Schedule of Exceptions to
Mortgage File Delivery attached hereto as Exhibit B-2, (i) the original Mortgage
Note specified in clause (i) of the definition of "Mortgage File" and all
allonges thereto, if any (or, a copy of such Mortgage Note, together with a
"lost note affidavit" certifying that the original of such Mortgage Note has
been lost), are in its possession or the possession of a Custodian on its
behalf, (ii) if such Mortgage Loan is identified on Exhibit B-1E, the original
or a copy of the Loan REMIC Declaration specified in clause (xiii) of the
definition of "Mortgage File" is in its possession or the possession of a
Custodian on its behalf, and (iii) such Mortgage Note (or copy thereof) and, if
applicable, such Loan REMIC Declaration have been reviewed by it or by such
Custodian on its behalf and each (A) appears regular on its face (in the case of
such Mortgage Note, handwritten
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additions, changes or corrections shall not constitute irregularities if
initialed by the related Borrower), (B) appears to have been executed and (C)
purports to relate to such Mortgage Loan.
(b) On or about the 60th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee or a
Custodian on its behalf of the particular documents showing evidence of the
recordation/filing), every 90 days thereafter until the earliest of (i) the date
on which such exceptions are eliminated and such recordation/filing has been
completed, (ii) the second anniversary of the Closing Date and (iii) the date on
which all the affected Mortgage Loans are removed from the Trust Fund), the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Mortgage Loan, and the Trustee or a
Custodian on its behalf shall, subject to Sections 1.04, 2.02(c) and 2.02(d),
certify in writing (substantially in the form of Exhibit B-3) to each of the
other parties hereto, the Mortgage Loan Sellers and the Controlling Class
Representative that, as to each Mortgage Loan then subject to this Agreement
(except as specifically identified in any exception report annexed to such
certification): (i) the original Mortgage Note specified in clause (i) of the
definition of "Mortgage File" and all allonges thereto, if any (or a copy of
such Mortgage Note, together with a "lost note affidavit" certifying that the
original of such Mortgage Note has been lost), the original or a copy of each
document specified in clauses (ii) and (iv) of the definition of "Mortgage
File", the original or a copy of the policy of title insurance specified in
clause (vii) of the definition of "Mortgage File", originals or copies of any
documents specified in clauses (iii) and (v) of the definition of "Mortgage
File" (to the extent that the Trustee has actual knowledge that such documents
exist), the original or a copy of each document specified in clause (viii) of
the definition of "Mortgage File" (without regard to the parenthetical) and, in
the case of each Mortgage Loan identified on Exhibit B-1E, the original or a
copy of the Loan REMIC Declaration specified in clause (xii) of the definition
of "Mortgage File", has been delivered to it or to a Custodian on its behalf;
(ii) if such report is more than 180 days after the Closing Date, the
recordation/filing contemplated by Section 2.01(e) has been completed (based
solely on receipt by the Trustee or a Custodian on its behalf of the particular
recorded/filed documents); (iii) all documents received by it or any Custodian
with respect to such Mortgage Loan have been reviewed by it or by such Custodian
on its behalf and (A) appear regular on their face (handwritten additions,
changes or corrections shall not constitute irregularities if initialed by the
related Borrower), (B) appear to have been executed and (C) purport to relate to
such Mortgage Loan; and (iv) based on the examinations referred to in Section
2.02(a) above and this Section 2.02(b) and only as to the foregoing documents,
the information set forth in the Mortgage Loan Schedule with respect to the
items specified in clauses (ii)(A) (other than the zip code), (iii)(A) and
(vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Mortgage File. The Trustee, upon request, shall
distribute current exception reports to any party to this Agreement, the Rating
Agencies or the Certificateholders for as long as there are exceptions
outstanding.
(c) None of the Trustee, the Master Servicer, the Special Servicer or
any Custodian is under any duty or obligation to inspect, review or examine any
of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in
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proper or recordable form, whether the requisite recording of any document is in
accordance with the requirements of any applicable jurisdiction, or whether a
blanket assignment is permitted in any applicable jurisdiction.
(d) In performing the reviews contemplated by subsections (a) and (b)
above, the Trustee or a Custodian on its behalf may conclusively rely on the
related Mortgage Loan Seller as to the purported genuineness of any such
document and any signature thereon. It is understood that the scope of the
Trustee's and any Custodian's review of the Mortgage Files is limited solely to
confirming that the documents specified in clauses (i), (ii), (iii) (to the
extent that the Trustee has actual knowledge that such documents exist), (iv),
(v) (to the extent that the Trustee has actual knowledge that such documents
exist), (vii), (viii) and (xii) of the definition of "Mortgage File" have been
received and such additional information as will be necessary for making and/or
delivering the certifications required by subsections (a) and (b) above.
Further, with respect to UCC filings, absent actual knowledge or copies of UCC
filings in the Mortgage File indicating otherwise, the Trustee shall assume for
purposes of the certifications delivered pursuant to this Section 2.02, that one
state level UCC filing and one county level UCC filing was made for each
Mortgaged Property operated as a healthcare or hospitality property.
SECTION 2.03. Certain Repurchases of Mortgage Loans by the Originators.
(a) If any party hereto discovers, or receives notice from a non-party
of, a Document Defect or Breach, then such party shall give prompt written
notice thereof to the other parties hereto, including (unless it is the party
that discovered the Document Defect or Breach) the Trustee. Upon the Trustee's
discovery or receipt of notice of any such Document Defect or Breach, the
Trustee shall notify the Master Servicer, the Custodian, the Controlling Class
Representative, the Rating Agencies and the related Mortgage Loan Seller.
(b) Promptly upon its becoming aware of or receiving notice of any
Material Document Defect or Material Breach with respect to any Mortgage Loan,
the Trustee shall direct the related Mortgage Loan Seller that such Mortgage
Loan Seller must, not later than 90 days from the receipt by such Mortgage Loan
Seller of such notice, cure such Material Document Defect or Material Breach, as
the case may be, in all material respects or repurchase the affected Mortgage
Loan (as, if and to the extent required by the related Mortgage Loan Purchase
Agreement) at the applicable Purchase Price; provided that if (i) any such
Material Breach or Material Document Defect does not affect whether the affected
Mortgage Loan was, is or will continue to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code, (ii) such Material Breach or Material
Document Defect, as the case may be, is capable of being cured but not within
such 90-day period, (iii) the related Mortgage Loan Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within such 90-day period, and (iv) the related
Mortgage Loan Seller shall have delivered to the Trustee a certification
executed on behalf of such Mortgage Loan Seller by an officer thereof (A)
setting forth the reason that such Material Breach or Material Document Defect,
as the case may be, is not capable of being cured within an initial 90-day
period, (B) specifying what actions such Mortgage Loan Seller is pursuing in
connection with the cure thereof and (C) stating that such Mortgage Loan Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be cured within an additional period not to exceed 90 more days (a
copy of which certification shall be delivered by the Trustee to the Master
Servicer, the Special Servicer and the
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Controlling Class Representative), then such Mortgage Loan Seller shall have an
additional 90 days to complete such cure (or, if it fails to complete such cure,
to repurchase the affected Mortgage Loan). If any Mortgage Loan is to be
repurchased as contemplated by this Section 2.03, the Trustee shall designate
the Collection Account as the account to which funds in the amount of the
applicable Purchase Price are to be wired, and the Master Servicer shall
promptly notify the Trustee and Certificate Administrator when such deposit is
made. Any such repurchase of a Mortgage Loan shall be on a whole loan, servicing
released basis (subject to any rights of a Designated Sub-Servicer to continue
to primary service (or to perform select servicing duties with respect to) the
Deleted Mortgage Loan as set forth in any applicable Designated Sub-Servicer
Agreement).
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by or on behalf of a Mortgage
Loan Seller as contemplated by this Section 2.03, then, prior to the subject
repurchase, the Master Servicer 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 Borrower and record, such
documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loans therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that no such termination shall be effected
unless and until the Master Servicer and the Trustee have received from the
related Mortgage Loan Seller (i) an Opinion of Counsel addressed to the Trustee
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 any Grantor Trust Pool and (ii) written confirmation from each Rating
Agency that such termination will not cause an Adverse Rating Event to occur
with respect to any Class of Rated Certificates; and provided, further, that the
related Mortgage Loan Seller may, at its option, repurchase the entire
Cross-Collateralized Group without termination of the cross-collateralization.
To the extent necessary and appropriate, the Trustee shall execute (or, subject
to Section 3.10, provide the Master Servicer with a limited power of attorney
that enables the Master Servicer to execute) the loan documentation referred to
in the prior sentence; provided that the Trustee shall not be liable for any
misuse of any such power of attorney by the Master Servicer. The Master Servicer
shall advance all costs and expenses incurred by the Trustee and the Master
Servicer pursuant to this paragraph, and such advances shall (i) constitute and
be reimbursable as Servicing Advances and (ii) be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased. Neither the Master
Servicer nor the Special Servicer shall be liable to any Certificateholder or
any other party hereto if the cross-collateralization of any
Cross-Collateralized Group cannot be terminated as contemplated by this
paragraph for any reason beyond the control of the Master Servicer or Special
Servicer, as the case may be. If the cross-collateralization of any
Cross-Collateralized Group cannot be terminated as contemplated by this
paragraph, then, for purposes of this Section 2.03 and the related Mortgage Loan
Purchase Agreement, including for purposes of (i) determining whether any Breach
or Document Defect is a Material Breach or Material Document Defect, as the case
may be, and (ii) the application of remedies, such Cross-Collateralized Group
shall be treated as a single Mortgage Loan.
In connection with any repurchase of any of the Mortgage Loans listed
on Exhibit B-1E pursuant to or as contemplated by this Section 2.03(b), the Tax
Administrator shall
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effect a "qualified liquidation" of the related Loan REMIC in accordance with
the REMIC Provisions.
If any Mortgage Loan is to be repurchased as contemplated by this
Section 2.03, the Trustee shall direct the related Mortgage Loan Seller to amend
the Mortgage Loan Schedule to reflect the removal of the Deleted Mortgage Loan
and deliver the same to the Certificate Administrator. Upon the Certificate
Administrator's receipt from the Mortgage Loan Seller of such amended Mortgage
Loan Schedule, the Certificate Administrator shall deliver or cause the delivery
of such amended Mortgage Loan Schedule to the respective parties hereto and to
the Controlling Class Representative.
In the case of a Material Document Defect or Material Breach affecting
an AMCC Mortgage Loan, all references in this Section 2.03(b) to "Mortgage Loan
Seller" shall be deemed to also be references to ABC (but only if and to the
extent that ABC would, pursuant to the ABC Support Letter, be liable for those
obligations of AMCC as a Mortgage Loan Seller under the AMCC Mortgage Loan
Purchase Agreement that are contemplated above in this Section 2.03(b)).
(c) Upon receipt of an Officer's Certificate from the Master Servicer
to the effect that the full amount of the Purchase Price for any Mortgage Loan
repurchased by or on behalf of a Mortgage Loan Seller as contemplated by this
Section 2.03 has been deposited in the Collection Account, the Trustee shall (i)
release or cause the release of the Mortgage File and any Additional Collateral
held by or on behalf of the Trustee for the Deleted Mortgage Loan to the party
effecting the repurchase or its designee and (ii) execute and deliver such
instruments of release, transfer and/or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest in the
party effecting the repurchase or its designee the ownership of the Deleted
Mortgage Loan, and the Master Servicer shall notify the applicable Borrower(s)
of the transfers of the Deleted Mortgage Loan(s). In connection with any such
repurchase by or on behalf of a Mortgage Loan Seller, each of the Master
Servicer and the Special Servicer shall deliver to the party effecting the
repurchase or its designee any portion of the related Servicing File, together
with any Escrow Payments, Reserve Funds and Additional Collateral, held by or on
behalf of the Master Servicer or the Special Servicer, as the case may be, with
respect to the Deleted Mortgage Loan, in each case at the expense of the party
effecting the repurchase.
(d) The Mortgage Loan Purchase Agreements (and, in the case of an AMCC
Mortgage Loan, the ABC Support Letter) provide the sole remedies available to
the Certificateholders, or the Trustee on their behalf, respecting any Breach or
Document Defect. If any Mortgage Loan Seller defaults on its obligations to
repurchase any Mortgage Loan as contemplated by this Section 2.03, the Master
Servicer shall promptly notify the Trustee, and the Trustee shall notify the
Certificateholders. Thereafter, the Trustee shall take such actions on behalf of
the Trust with respect to the enforcement of such repurchase obligations,
including the institution and prosecution of appropriate legal proceedings, as
the Trustee shall determine are in the best interests of the Certificateholders
(taken as a collective whole).
(e) The Trustee, the Custodian, the Master Servicer and the Special
Servicer, as the case may be, shall be reimbursed for the reasonable
out-of-pocket expenses, including reasonable attorneys' fees and expenses
related to their obligations set forth in this Section 2.03: first, from a
specific recovery of costs, expenses or attorneys' fees against the applicable
Mortgage
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Loan Seller (or, if applicable, ABC) ordered or awarded pursuant to an
adjudication; second, out of the related Purchase Price, to the extent that such
expenses are a specific component thereof; and third, if at the conclusion of
any enforcement action it is determined that the amounts described in clauses
first and second are insufficient, then out of general collections on the
Mortgage Loans on deposit in the Collection Account.
SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Depositor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and the
Depositor's principal place of business and its chief executive office is
located in the State of New York.
(ii) The Depositor's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Depositor's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the reasonable judgment of the Depositor, is likely to affect
materially and adversely either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
(iii) The Depositor has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to
enter into and consummate all transactions involving the Depositor
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Depositor's
reasonable judgment, is likely to affect materially and adversely either
the ability of the Depositor to perform its obligations under this
Agreement or the financial condition of the Depositor.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except (A) for those consents, approvals, authorizations or
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orders that previously have been obtained, (B) such as may be required
under the blue sky laws of any jurisdiction in connection with the purchase
and sale of the Certificates by the Underwriters, and (C) any recordation
of the assignments of Mortgage Loan documents to the Trustee pursuant to
Section 2.01(e), which has not yet been completed.
(vii) The Depositor's transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(viii) The Depositor is not transferring the Mortgage Loans to the
Trustee with any intent to hinder, delay or defraud its present or future
creditors. In connection with its transfer of the Mortgage Loans hereunder,
the Depositor will receive new value and consideration constituting at
least reasonably equivalent value and fair consideration for the assets
transferred.
(ix) The Depositor has been solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Mortgage Loans to
the Trustee pursuant to Section 2.01(b).
(x) After giving effect to its transfer of the Mortgage Loans to the
Trustee pursuant to Section 2.01(b), the value of the Depositor's assets,
either taken at their present fair saleable value or at fair valuation,
will exceed the amount of the Depositor's debts and obligations, including
contingent and unliquidated debts and obligations of the Depositor, and the
Depositor will not be left with unreasonably small assets or capital with
which to engage in and conduct its business, and such transfer will not
render the Depositor insolvent.
(xi) The Depositor does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(xii) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Depositor are pending or contemplated.
(xiii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's reasonable judgment, is likely to
materially and adversely affect either the ability of the Depositor to
perform its obligations under this Agreement or the financial condition of
the Depositor. The execution, delivery and performance of this Agreement by
the Depositor constitutes bona fide and arm's-length transactions and are
undertaken in the ordinary course of business of the Depositor.
(xiv) Assuming the accuracy of the representations and warranties of
the Mortgage Loan Sellers set forth in their respective Mortgage Loan
Purchase Agreements, immediately prior to the transfer of the Mortgage
Loans to the Trustee for the benefit of the Certificateholders pursuant to
this Agreement, the Depositor had good and marketable title to, and was the
sole owner and holder of, each Mortgage Loan, and the Depositor has full
right and authority to sell, assign and transfer the Mortgage Loans.
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(xv) The Depositor is transferring the Mortgage Loans to the Trustee
for the benefit of the Certificateholders free and clear of any and all
liens, pledges, charges and security interests created by or through the
Depositor.
(xvi) Except for any actions that are the express responsibility of
another party hereunder or under the Mortgage Loan Purchase Agreements, and
further except for actions that the Depositor is expressly permitted to
complete subsequent to the Closing Date, the Depositor has taken all
actions required under applicable law to effectuate the transfer of the
Mortgage Loans by the Depositor to the Trustee.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
any breach of any of the foregoing representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto and the Controlling Class Representative.
SECTION 2.05. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, and the Master
Servicer is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations under
this Agreement.
(ii) The Master Servicer's execution and delivery of, performance under
and compliance with this Agreement, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the material breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets, which default or breach, in the reasonable judgment of the
Master Servicer, is likely to affect materially and adversely either the
ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions involving the Master Servicer
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Master Servicer, enforceable against the Master Servicer
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
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principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Master
Servicer's reasonable judgment, is likely to affect materially and
adversely either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the Master
Servicer.
(vi) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer, the outcome of which, in
the Master Servicer's reasonable judgement, would prohibit the Master
Servicer from entering into this Agreement or that, in the Master
Servicer's reasonable judgment, could reasonably be expected to materially
and adversely affect either the ability of the Master Servicer to perform
its obligations under this Agreement or the financial condition of the
Master Servicer.
(vii) The Master Servicer has errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(d).
(viii) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained and except where the lack of such consent,
approval, authorization or order would not have a material adverse effect
on the ability of the Master Servicer to perform its obligations under this
Agreement.
(b) The representations and warranties of the Master Servicer set forth
in Section 2.05(a) shall survive the execution and delivery of this Agreement
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust remains in existence. Upon discovery by any party
hereto of a breach of such foregoing representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto and the Controlling Class Representative.
(c) Any successor Master Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 2.05(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.05(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.06. Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
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(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations under
this Agreement.
(ii) The Special Servicer's execution and delivery of, performance
under and compliance with this Agreement will not violate the Special
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the material breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets, which default or breach, in the reasonable judgment of the
Special Servicer, is likely to affect materially and adversely either the
ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions involving the Special Servicer
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Special Servicer, enforceable against the Special
Servicer in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution and
delivery of, performance under and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
the Special Servicer's reasonable judgment, is likely to affect materially
and adversely either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer.
(vi) No litigation is pending or, to the best of the Special Servicer's
knowledge, threatened against the Special Servicer, the outcome of which,
in the Special Servicer's reasonable judgement, would prohibit the Special
Servicer from entering into this Agreement or, in the Special Servicer's
reasonable judgment, could reasonably be expected to materially and
adversely affect either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer.
(vii) The Special Servicer has errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(d).
(viii) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Special Servicer of
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the transactions contemplated herein, except for those consents, approvals,
authorizations or orders that previously have been obtained and except
where the lack of such consent, approval, authorization or order would not
have a material adverse effect on the ability of the Special Servicer to
perform its obligations under this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto and the Controlling Class Representative.
(c) Any successor Special Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 2.06(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.06(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.07. Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to, and covenants with,
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Trustee is duly organized and validly existing as a national
banking association under the laws of the United States and is, shall be
or, if necessary, shall appoint a co-trustee that is, in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan
(insofar as such enforceability is dependent upon compliance by the Trustee
with such laws) and to perform its obligations under this Agreement.
(ii) The Trustee's execution and delivery of, performance under and
compliance with this Agreement, will not violate the Trustee's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the reasonable judgment of the Trustee is likely to affect
materially and adversely either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the Trustee.
(iii) The Trustee has the requisite power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against the Trustee in accordance
with the terms hereof, subject to (A)
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applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Trustee is not in violation of, and its execution and delivery
of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Trustee's
reasonable judgment, is likely to affect materially and adversely either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein, except
for those consents, approvals, authorizations or orders that previously
have been obtained.
(vii) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or that, in the Trustee's reasonable judgment, is likely to materially and
adversely affect either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the Trustee.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations and warranties of the Trustee set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
a breach of any such representations and warranties that materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice thereof to
the other parties hereto and the Controlling Class Representative.
(c) Any successor Trustee shall be deemed to have made, as of the date
of its succession, each of the representations and warranties set forth in
Section 2.07(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.07(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.08. Representations and Warranties of LaSalle as Certificate
Administrator and Tax Administrator.
(a) LaSalle, in its capacity as Certificate Administrator and Tax
Administrator, hereby represents and warrants to, and covenants with, each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
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(i) LaSalle is duly organized and validly existing as a national
banking association under the laws of the United States and is, or shall
be, in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan (insofar as such enforceability is dependent upon
compliance by LaSalle with such laws) and to perform its obligations under
this Agreement.
(ii) LaSalle's execution and delivery of, performance under and
compliance with this Agreement, will not violate LaSalle's organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in a
material breach of, any material agreement or other material instrument to
which it is a party or by which it is bound, which default or breach, in
the reasonable judgment of LaSalle is likely to affect materially and
adversely either the ability of LaSalle to perform its obligations under
this Agreement or the financial condition of LaSalle.
(iii) LaSalle has the requisite power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of LaSalle, enforceable against LaSalle in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) LaSalle is not in violation of, and its execution and delivery of,
performance under and compliance with this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in LaSalle's reasonable judgment, is
likely to affect materially and adversely either the ability of LaSalle to
perform its obligations under this Agreement or the financial condition of
LaSalle.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by LaSalle of the transactions contemplated herein, except for
those consents, approvals, authorizations or orders that previously have
been obtained.
(vii) No litigation is pending or, to the best of LaSalle's knowledge,
threatened against LaSalle that, if determined adversely to the LaSalle,
would prohibit LaSalle from entering into this Agreement or that, in the
LaSalle's reasonable judgment, is likely to materially and adversely affect
either the ability of LaSalle to perform its obligations under this
Agreement or the financial condition of LaSalle.
(viii) LaSalle is eligible to act as certificate administrator and tax
administrator hereunder in accordance with Section 8.06.
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(ix) LaSalle's acting hereunder as certificate administrator or tax
administrator will not render the Underwriter Exemption unavailable to
Certificateholders and/or Certificate Owners that desire to transfer their
Investment Grade Certificates or interests therein to Plans.
(b) The representations and warranties of LaSalle set forth in Section
2.09(a) shall survive the execution and delivery of this Agreement and shall
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence. Upon discovery by any party hereto of a
breach of any such representations and warranties that materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice thereof to the other
parties hereto and the Controlling Class Representative.
(c) Any successor to LaSalle as Certificate Administrator and/or Tax
Administrator shall be deemed to have made, as of the date of its succession,
each of the representations and warranties set forth in Section 2.09(a), subject
to such appropriate modifications to the representation and warranty set forth
in Section 2.09(a)(i) to accurately reflect such successor's jurisdiction of
organization and whether it is a corporation, partnership, bank, association or
other type of organization.
SECTION 2.09. Designation of the Certificates.
(a) The Certificates shall consist of 18 Classes hereby designated as
the "Class X Certificates", the "Class A-1 Certificates", the "Class A-2
Certificates", the "Class B Certificates", the "Class C Certificates", the
"Class D Certificates", the "Class E Certificates", the "Class F Certificates",
the "Class G Certificates", the "Class H Certificates", the "Class J
Certificates", the "Class K Certificates", the "Class L Certificates, the "Class
M Certificates", the "Class N Certificates", the "Class P Certificates", the
"Class Y Certificates" and the "Class R Certificates", respectively.
(b) The Class A-1 and Class A-2 Certificates are collectively
designated as the "Class A Certificates".
(c) The Class X, Class A-1 and Class A-2 Certificates are collectively
designated as the "Senior Certificates".
(d) The Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P and Class R Certificates
are collectively designated as the "Subordinate Certificates".
(e) The Class A, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N and Class P Certificates
are collectively designated as the "Principal Balance Certificates".
(f) The Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N and Class P Certificates are
collectively designated as the "Subordinate Principal Balance Certificates".
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(g) The Class X Certificates are also designated as the "Interest Only
Certificates".
(h) The Interest Only Certificates and the Principal Balance
Certificates are collectively designated as the "REMIC III Regular Interest
Certificates".
(i) The Class A, Class B, Class C, Class D, Class E, Class F and Class
G Certificates are collectively designated as the "Yield Maintenance
Certificates".
SECTION 2.10. Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Residual Interest; Certain
Matters Involving REMIC I and the Loan REMICs.
(a) It is the intention of the parties hereto that the following
segregated pool of assets constitute a REMIC for federal income tax purposes
and, further, that such segregated pool of assets be designated as "REMIC I":
(i) the Mortgage Loans that are from time to time subject to this Agreement
(other than those Mortgage Loans that are, in each case, held by a Loan REMIC),
together with (A) all payments under and proceeds of such Mortgage Loans
received after the Closing Date (other than scheduled payments of interest and
principal due on or before the Cut-off Date, and exclusive of any amounts that
constitute Post-ARD Additional Interest collected in respect of the ARD Loans
after their respective Anticipated Repayment Dates and exclusive of Excess
Servicing Fees), (B) all Principal Prepayments and corresponding interest
payments on the Mortgage Loans received after the Cut-off Date through and
including the Closing Date, and (C) all documents included in the related
Mortgage Files and Servicing Files and any related Additional Collateral; (ii)
any REO Property acquired in respect of a Mortgage Loan (other than a Mortgage
Loan that had been held by a Loan REMIC); (iii) such funds and assets as from
time to time are deposited in the Collection Account, the Distribution Account,
the Interest Reserve Account, the Gain on Sale Reserve Fund and, if established,
the REO Account (exclusive of any amounts that constitute Post-ARD Additional
Interest collected in respect of the ARD Loans after their respective
Anticipated Repayment Dates and exclusive of Excess Servicing Fees); (iv) the
rights of the Depositor under each Mortgage Loan Purchase Agreement; (v) the
rights of the Depositor and the Trustee under the ABC Support Letter; and (vi)
the Loan REMIC Regular Interests and all payments under and proceeds of such
Loan REMIC Regular Interest received after the Closing Date. The Closing Date is
hereby designated as the "Startup Day" of REMIC I, within the meaning of Section
860G(a)(9) of the Code.
A Loan REMIC Declaration has been made with respect to each of the
Mortgage Loans listed on Exhibit B-1E hereto. In the case of each such Mortgage
Loan, the related Loan REMIC will include such Mortgage Loan and any REO
Property acquired in respect of such Mortgage Loan. The "Startup Day" for each
Loan REMIC, within the meaning of Section 860G(a)(9) of the Code, is designated
in the related Loan REMIC Declaration.
(b) Concurrently with the assignment of the Mortgage Loans (or, in the
case of each of the Mortgage Loans listed on Exhibit B-1E hereto, the related
Loan REMIC Regular Interests) and certain related assets to the Trustee pursuant
to Section 2.01(b) and in exchange therefor, the REMIC I Regular Interests and
the REMIC I Residual Interest shall be issued. A separate REMIC I Regular
Interest shall be issued with respect to each Mortgage Loan and Loan
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REMIC Regular Interest that is an asset of REMIC I. For purposes of this
Agreement, each REMIC I Regular Interest shall relate to the Mortgage Loan with
respect to which it was issued (or, if applicable, to the Loan REMIC Regular
Interest with respect to which it was issued and also to the corresponding
Mortgage Loan) and to each REO Mortgage Loan deemed outstanding with respect to
any REO Property acquired in respect of any such Mortgage Loan. Neither the
REMIC I Residual Interest nor any of the REMIC I Regular Interests shall be
certificated. The REMIC I Regular Interests and the REMIC I Residual Interest
shall collectively constitute the entire beneficial ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
I Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC I. Each Loan REMIC Regular
Interest shall constitute the "regular interest" (within the meaning of Section
860G(a)(1) of the Code), and each Loan REMIC Residual Interest shall constitute
the sole "residual interest" (within the meaning of Section 860G(a)(2) of the
Code), in the related Loan REMIC. None of the parties hereto, to the extent it
is within the control thereof, shall create or permit the creation of any other
"interests" in REMIC I or any Loan REMIC (within the meaning of Treasury
regulation section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be the
identification number for the related Mortgage Loan set forth in the Mortgage
Loan Schedule.
(e) Each REMIC I Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Principal Balance
of the related Mortgage Loan (as specified in the Mortgage Loan Schedule). On
each Distribution Date, the Uncertificated Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by any distributions of principal
deemed made with respect to such REMIC I Regular Interest on such Distribution
Date pursuant to Section 4.01(l) and, further, by any Unfunded Principal Balance
Reduction made with respect to such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.04(c). Except as provided in the
preceding sentence, the Uncertificated Principal Balance of each REMIC I Regular
Interest shall not otherwise be increased or reduced. Deemed distributions to
REMIC II in reimbursement of Unfunded Principal Balance Reductions with respect
to a REMIC I Regular Interest shall not constitute deemed distributions of
principal and shall not result in any reduction of the Uncertificated Principal
Balance of such REMIC I Regular Interest.
(f) Each REMIC I Regular Interest shall have a REMIC I Remittance Rate.
The REMIC I Remittance Rate with respect to any particular REMIC I Regular
Interest for any Interest Accrual Period shall be calculated as follows:
(i) if, as of the Closing Date, the related Mortgage Loan bears or
bore, as the case may be, interest calculated on a 30/360 Basis, then the
REMIC I Remittance Rate with respect to the subject REMIC I Regular
Interest for any Interest Accrual Period shall equal the Net Mortgage Rate
in effect for the related Mortgage Loan as of the Closing Date; and
(ii) if, as of the Closing Date, the related Mortgage Loan bears or
bore, as the case may be, interest calculated on an Actual/360 Basis, then
the REMIC I Remittance Rate
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with respect to the subject REMIC I Regular Interest for any Interest
Accrual Period shall (subject to adjustment as provided below) equal the
product of (A) a fraction (expressed as a percentage), the numerator of
which is the number of days in such Interest Accrual Period, and the
denominator of which is 30, multiplied by (B) the Net Mortgage Rate in
effect for the related Mortgage Loan as of the Closing Date; provided that,
in the case of a REMIC I Regular Interest that corresponds to an Interest
Reserve Loan, if the subject Interest Accrual Period occurs during January
2001 or during January of any year thereafter or during December 2000 or
during December of any year thereafter that does not immediately precede a
leap year, the REMIC I Remittance Rate with respect to such REMIC I Regular
Interest for such Interest Accrual Period shall equal (M) the REMIC I
Remittance Rate with respect to such REMIC I Regular Interest for such
Interest Accrual Period, as calculated without regard to this proviso,
minus (N) a fraction (expressed as a percentage), the numerator of which is
equal to 12 times the related Interest Reserve Amount that is to be
transferred from the Distribution Account to the Interest Reserve Account
in the following calendar month in accordance with Section 3.04(c), and the
denominator of which is equal to the Uncertificated Principal Balance of
such REMIC I Regular Interest outstanding immediately prior to the related
Distribution Date; and, provided, further, that, in the case of a REMIC I
Regular Interest that corresponds to an Interest Reserve Loan, if the
subject Interest Accrual Period occurs during February of any year, the
REMIC I Remittance Rate with respect to such REMIC I Regular Interest for
such Interest Accrual Period shall equal (S) the REMIC I Remittance Rate
with respect to such REMIC I Regular Interest for such Interest Accrual
Period, as calculated without regard to this proviso, plus (T) a fraction
(expressed as a percentage), the numerator of which is equal to 12 times
any related Interest Reserve Amount(s) to be transferred from the Interest
Reserve Account to the Distribution Account pursuant to Section 3.05(c) for
distribution on the related Distribution Date, and the denominator of which
is equal to the Uncertificated Principal Balance of such REMIC I Regular
Interest outstanding immediately prior to the related Distribution Date.
(g) Each REMIC I Regular Interest shall bear interest, and such
interest shall commence accruing on the Cut-off Date. In the case of each REMIC
I Regular Interest, such interest shall be calculated on a 30/360 Basis and,
during each Interest Accrual Period, shall accrue at the REMIC I Remittance Rate
with respect to such REMIC I Regular Interest for such Interest Accrual Period
on the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date. The total amount
of such interest accrued with respect to each REMIC I Regular Interest during
each Interest Accrual Period (herein referred to as the "Interest Accrual
Amount" with respect to such REMIC I Regular Interest for such Interest Accrual
Period) shall equal 1/12 of the product of (i) the REMIC I Remittance Rate with
respect to such REMIC I Regular Interest for such Interest Accrual Period,
multiplied by (ii) the Uncertificated Principal Balance of such REMIC I Regular
Interest outstanding immediately prior to the related Distribution Date. The
portion of the Interest Accrual Amount with respect to any REMIC I Regular
Interest for any Interest Accrual Period that shall be distributable to REMIC
II, as the holder of such REMIC I Regular Interest, on the related Distribution
Date pursuant to Section 4.01(l), shall be an amount (herein referred to as the
"Current Interest Distribution Amount" with respect to such REMIC I Regular
Interest for the related Distribution Date) equal to (i) the Interest Accrual
Amount with respect to such REMIC I Regular Interest for the related Interest
Accrual Period, reduced (to not less than zero) by (ii) the portion of any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date that is
allocable to such REMIC I Regular Interest. For
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<PAGE> 88
purposes of the foregoing, the Net Aggregate Prepayment Interest Shortfall, if
any, for each Distribution Date shall be allocated among all the REMIC I Regular
Interests on a pro rata basis in accordance with their respective Interest
Accrual Amounts for the related Interest Accrual Period. If the entire Current
Interest Distribution Amount with respect to any REMIC I Regular Interest for
any Distribution Date is not deemed distributed to REMIC II, as the holder of
such REMIC I Regular Interest, on such Distribution Date pursuant to Section
4.01(l), then the unpaid portion of such Current Interest Distribution Amount
shall be added to, and be payable as part of, the Carryforward Interest
Distribution Amount with respect to such REMIC I Regular Interest for future
Distribution Dates. The "Carryforward Interest Distribution Amount" with respect
to any REMIC I Regular Interest for any Distribution Date is the excess, if any,
of (i) all Current Interest Distribution Amounts with respect to such REMIC I
Regular Interest for all prior Distribution Dates, if any, over (ii) the total
amount of interest deemed distributed to REMIC II with respect to such REMIC I
Regular Interest on all such prior Distribution Dates, if any, pursuant to
Section 4.01(l).
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I Regular
Interest shall be the Rated Final Distribution Date. The Latest Possible
Maturity Date for each Loan REMIC Regular Interest shall be the Stated Maturity
Date for the related Mortgage Loan.
(i) Neither the REMIC I Residual Interest nor any Loan REMIC Residual
Interest shall have a principal balance or bear interest.
SECTION 2.11. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC I Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all of its right, title and interest in and to the REMIC I Regular Interests to
the Trustee for the benefit of the REMIC III Regular Interest Certificateholders
and the Class R Certificateholders. The Trustee acknowledges the assignment to
it of the REMIC I Regular Interests and declares that it holds and will hold the
same in trust for the exclusive use and benefit of all present and future REMIC
III Regular Interest Certificateholders and Class R Certificateholders.
SECTION 2.12. Creation of REMIC II; Issuance of the REMIC II Regular
Interests and the REMIC II Residual Interest; Certain
Matters Involving REMIC II.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC I Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC II". The Closing Date is hereby designated as the "Startup
Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular Interests
to the Trustee pursuant to Section 2.11 and in exchange therefor, the REMIC II
Regular Interests and the REMIC II Residual Interest shall be issued. There
shall be 15 separate REMIC II Regular Interests.
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<PAGE> 89
Neither the REMIC II Residual Interest nor any of the REMIC II Regular Interests
shall be certificated. The REMIC II Regular Interests and the REMIC II Residual
Interest shall collectively constitute the entire beneficial ownership of REMIC
II.
(c) The REMIC II Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
II Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC II (within the meaning of
Treasury regulation section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests are hereby designated as "REMIC II
Regular Interest A-1", "REMIC II Regular Interest A-2", "REMIC II Regular
Interest B", "REMIC II Regular Interest C", "REMIC II Regular Interest D",
"REMIC II Regular Interest E", "REMIC II Regular Interest F", "REMIC II Regular
Interest G", "REMIC II Regular Interest H", "REMIC II Regular Interest J",
"REMIC II Regular Interest K", "REMIC II Regular Interest L", "REMIC II Regular
Interest M", "REMIC II Regular Interest N" and "REMIC II Regular Interest P",
respectively.
(e) Each REMIC II Regular Interest shall have an Uncertificated
Principal Balance. The following table sets forth for each REMIC II Regular
Interest the initial Uncertificated Principal Balance thereof:
<TABLE>
<CAPTION>
DESIGNATION OF INITIAL UNCERTIFICATED
REMIC II REGULAR INTEREST PRINCIPAL BALANCE
------------------------- -----------------
<S> <C>
A-1 $ 180,689,000
A-2 $ 523,600,000
B $ 43,446,000
C $ 36,586,000
D $ 13,720,000
E $ 13,720,000
F $ 13,720,000
G $ 13,720,000
H $ 27,440,000
J $ 6,860,000
K $ 5,716,000
L $ 10,290,000
M $ 4,574,000
N $ 3,430,000
P $ 17,150,060
</TABLE>
On each Distribution Date, the Uncertificated Principal Balance of each
REMIC II Regular Interest shall be permanently reduced by any distributions of
principal deemed made with respect to such REMIC II Regular Interest on such
Distribution Date pursuant to Section 4.01(k) and, further, by any Unfunded
Principal Balance Reduction made with respect to such REMIC II Regular Interest
on such Distribution Date pursuant to Section 4.04(b). Except as provided in the
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<PAGE> 90
preceding sentence, the Uncertificated Principal Balance of each REMIC II
Regular Interest shall not otherwise be increased or decreased. Deemed
distributions to REMIC III in reimbursement of Unfunded Principal Balance
Reductions with respect to a REMIC II Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
(f) Each REMIC II Regular Interest shall have a REMIC II Remittance
Rate that, with respect to any Interest Accrual Period, shall equal the weighted
average, expressed as a percentage and rounded to eight decimal places, of the
respective REMIC I Remittance Rates in effect for all the REMIC I Regular
Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated Principal Balances of such REMIC I Regular Interests
outstanding immediately prior to the related Distribution Date.
(g) Each REMIC II Regular Interest shall bear interest, and such
interest shall commence accruing on the Cut-off Date. In the case of each REMIC
II Regular Interest, such interest shall be calculated on a 30/360 Basis and,
during each Interest Accrual Period, shall accrue at the REMIC II Remittance
Rate with respect to such REMIC II Regular Interest for such Interest Accrual
Period on the Uncertificated Principal Balance of such REMIC II Regular Interest
outstanding immediately prior to the related Distribution Date. The total amount
of such interest accrued with respect to each REMIC II Regular Interest during
each Interest Accrual Period (herein referred to as the "Interest Accrual
Amount" with respect to such REMIC II Regular Interest for such Interest Accrual
Period) shall equal 1/12 of the product of (i) the REMIC II Remittance Rate with
respect to such REMIC II Regular Interest for such Interest Accrual Period,
multiplied by (ii) the Uncertificated Principal Balance of such REMIC II Regular
Interest outstanding immediately prior to the related Distribution Date. The
portion of the Interest Accrual Amount with respect to any REMIC II Regular
Interest for any Interest Accrual Period that shall be distributable to REMIC
III, as the holder of such REMIC II Regular Interest, on the related
Distribution Date pursuant to Section 4.01(k), shall be an amount (herein
referred to as the "Current Interest Distribution Amount" with respect to such
REMIC II Regular Interest for the related Distribution Date) equal to (i) the
Interest Accrual Amount with respect to such REMIC II Regular Interest for the
related Interest Accrual Period, reduced (to not less than zero) by (ii) the
portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date that is allocable to such REMIC II Regular Interest. For purposes of the
foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated among all the REMIC II Regular Interests on
a pro rata basis in accordance with their respective Interest Accrual Amounts
for the related Interest Accrual Period. If the entire Current Interest
Distribution Amount with respect to any REMIC II Regular Interest for any
Distribution Date is not deemed distributed to REMIC III, as the holder of such
REMIC II Regular Interest, on such Distribution Date pursuant to Section
4.01(k), then the unpaid portion of such Current Interest Distribution Amount
shall be added to, and be payable as part of, the Carryforward Interest
Distribution Amount with respect to such REMIC II Regular Interest for future
Distribution Dates. The "Carryforward Interest Distribution Amount" with respect
to any REMIC II Regular Interest for any Distribution Date is the excess, if
any, of (i) all Current Interest Distribution Amounts with respect to such REMIC
II Regular Interest for all prior Distribution Dates, if any, over (ii) the
total amount of interest deemed distributed to REMIC III with respect to such
REMIC II Regular Interest on all such prior Distribution Dates, if any, pursuant
to Section 4.01(k).
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(h) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II Regular
Interest shall be the Rated Final Distribution Date.
(i) The REMIC II Residual Interest shall not have a principal balance
and shall not bear interest.
SECTION 2.13. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC II Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all of its right, title and interest in and to the REMIC II Regular Interests to
the Trustee for the benefit of the REMIC III Regular Interest Certificateholders
and the Class R Certificateholders. The Trustee acknowledges the assignment to
it of the REMIC II Regular Interests and declares that it holds and will hold
the same in trust for the exclusive use and benefit of all present and future
REMIC III Regular Interest Certificateholders and Class R Certificateholders.
SECTION 2.14. Creation of REMIC III; Issuance of the REMIC III Regular
Interest Certificates and the REMIC III Residual
Interest; Certain Matters Involving REMIC III.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC II Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC III". The Closing Date is hereby designated as the "Startup
Day" of REMIC III within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II Regular Interests
to the Trustee pursuant to Section 2.13 and in exchange therefor, the REMIC III
Residual Interest shall be issued, and the Certificate Registrar shall execute,
authenticate and deliver, to or upon the order of the Depositor, the REMIC III
Regular Interest Certificates in authorized denominations. There shall be 16
Classes of REMIC III Regular Interest Certificates. The REMIC III Residual
Interest shall not be certificated. The interests evidenced by the REMIC III
Regular Interest Certificates, together with the REMIC III Residual Interest,
shall collectively constitute the entire beneficial ownership of REMIC III.
(c) The respective Classes of the REMIC III Regular Interest
Certificates shall constitute the "regular interests" (within the meaning of
Section 860G(a)(1) of the Code), and the REMIC III Residual Interest shall
constitute the sole "residual interest" (within the meaning of Section
860(G)(a)(2) of the Code), in REMIC III. None of the parties hereto, to the
extent it is within the control thereof, shall create or permit the creation of
any other "interests" in REMIC III (within the meaning of Treasury regulation
section 1.860D-1(b)(1)).
(d) The designations for the respective classes of the REMIC III
Regular Interest Certificates are specified in Section 2.09.
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<PAGE> 92
(e) Each Class of Principal Balance Certificates shall have a Class
Principal Balance. The following table sets forth for each Class of Principal
Balance Certificates the initial Class Principal Balance thereof.
<TABLE>
<CAPTION>
CLASS INITIAL CLASS
DESIGNATION PRINCIPAL BALANCE
----------- -----------------
<S> <C>
Class A-1 $ 180,689,000
Class A-2 $ 523,600,000
Class B $ 43,446,000
Class C $ 36,586,000
Class D $ 13,720,000
Class E $ 13,720,000
Class F $ 13,720,000
Class G $ 13,720,000
Class H $ 27,440,000
Class J $ 6,860,000
Class K $ 5,716,000
Class L $ 10,290,000
Class M $ 4,574,000
Class N $ 3,430,000
Class P $ 17,150,060
</TABLE>
On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be permanently reduced by any distributions
of principal made with respect to such Class of Certificates on such
Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), as applicable,
and, further, by any Unfunded Principal Balance Reduction made with respect to
such Class of Certificates on such Distribution Date pursuant to Section
4.04(a). Except as provided in the preceding sentence, the Class Principal
Balance of each Class of Principal Balance Certificates shall not otherwise be
increased or reduced. Distributions to the Holders of any Class of Principal
Balance Certificates in reimbursement of any Unfunded Principal Balance
Reductions with respect to such Class of Certificates shall not constitute
distributions of principal and shall not result in any reduction of the related
Class Principal Balance.
The Class X Certificates shall not have a principal balance. For
purposes of accruing interest, however, the Class X Certificates shall have a
Class Notional Amount that is, as of any date of determination, equal to the
total of the then Uncertificated Principal Balances of all the REMIC II Regular
Interests.
(f) Each Class of REMIC III Regular Interest Certificates shall have a
Pass-Through Rate.
The Pass-Through Rate with respect to each Class of Principal Balance
Certificates for any Interest Accrual Period shall be as follows:
(i) in the case of the Class A-1 Certificates, 6.341% per annum;
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<PAGE> 93
(ii) in the case of the Class A-2 Certificates, 6.592% per annum;
(iii) in the case of the Class B Certificates, the lesser of (A)
6.758% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest B for such Interest
Accrual Period;
(iv) in the case of the Class C Certificates, the lesser of (A)
6.906% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest C for such Interest
Accrual Period;
(v) in the case of the Class D Certificates, the lesser of (A)
7.204% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest D for such Interest
Accrual Period;
(vi) in the case of the Class E Certificates, the lesser of (A)
7.517% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest E for such interest
Accrual Period;
(vii) in the case of the Class F Certificates, the lesser of (A)
7.595% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest F for such Interest
Accrual Period; and
(viii) in the case of the Class G Certificates, the lesser of (A)
8.090% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest G for such Interest
Accrual Period;
(ix) in the case of the Class H Certificates 7.000% per annum;
(x) in the case of the Class J Certificates 7.000% per annum;
(xi) in the case of the Class K Certificates 7.000% per annum;
(xii) in the case of the Class L Certificates 7.000% per annum;
(xiii) in the case of the Class M Certificates 7.000% per annum;
(xiv) in the case of the Class N Certificates 7.000% per annum;
(xv) in the case of the Class P Certificates 7.000% per annum.
With respect to the Class X Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall be a rate per annum equal to the excess,
if any, of (i) the weighted average of the respective REMIC II Remittance Rates
in effect during such Interest Accrual Period in respect of all of the REMIC II
Regular Interests, over (ii) the weighted average of the respective Adjusted
REMIC II Remittance Rates in effect during such Interest Accrual Period in
respect of all of the REMIC II Regular Interests. For purposes of the foregoing,
the relevant weighting shall be based on the Uncertificated Principal Balance of
each REMIC II Regular Interest immediately prior to the related Distribution
Date.
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(g) Each Class of REMIC III Regular Interest Certificates shall bear
interest, and such interest shall commence accruing on the Cut-off Date. In the
case of each Class of REMIC III Regular Interest Certificates, such interest
shall be calculated on a 30/360 Basis and, during each Interest Accrual Period,
shall accrue at the Pass-Through Rate with respect to such Class of Certificates
for such Interest Accrual Period on the Class Principal Balance (or, in the case
of the Class X Certificates, the Class Notional Amount) of such Class of
Certificates outstanding immediately prior to the related Distribution Date. The
total amount of such interest accrued with respect to each Class of REMIC III
Regular Interest Certificates during each Interest Accrual Period (herein
referred to as the "Interest Accrual Amount" with respect to such Class of
Certificates for such Interest Accrual Period) shall equal 1/12 of the product
of (i) the Pass-Through Rate with respect to such Class of Certificates for such
Interest Accrual Period, multiplied by (ii) the Class Principal Balance (or, in
the case of the Class X Certificates, the Class Notional Amount) of such Class
of Certificates outstanding immediately prior to the related Distribution Date.
The portion of the Interest Accrual Amount with respect to any Class of REMIC
III Regular Interest Certificates for any Interest Accrual Period that shall be
distributable to the Holders thereof on the related Distribution Date pursuant
to Section 4.01(a) or Section 4.01(b), as applicable, shall be an amount (herein
referred to as the "Current Interest Distribution Amount" with respect to such
Class of Certificates for the related Distribution Date) equal to (i) the
Interest Accrual Amount with respect to such Class of Certificates for the
related Interest Accrual Period, reduced (to not less than zero) by (ii) the
portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date that is allocable to such Class of Certificates. For purposes of the
foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated among all the Classes of REMIC III Regular
Interest Certificates on a pro rata basis in accordance with their respective
Interest Accrual Amounts for the related Interest Accrual Period. If the entire
Current Interest Distribution Amount with respect to any Class of REMIC III
Regular Interest Certificates for any Distribution Date is not distributed to
the Holders thereof on such Distribution Date pursuant to Section 4.01(a) or
Section 4.01(b), as applicable, then the unpaid portion of such Current Interest
Distribution Amount shall be added to, and be payable as part of, the
Carryforward Interest Distribution Amount with respect to such Class of
Certificates for future Distribution Dates. The "Carryforward Interest
Distribution Amount" with respect to any Class of REMIC III Regular Interest
Certificates for any Distribution Date is the excess, if any, of (i) all Current
Interest Distribution Amounts with respect to such Class of Certificates for all
prior Distribution Dates, if any, over (ii) the total amount of interest
distributed to the Holders of such Class of Certificates on all such prior
Distribution Dates, if any, pursuant to Section 4.01(a) or Section 4.01(b), as
applicable.
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of REMIC
III Regular Interest Certificates shall be the Rated Final Distribution Date.
(i) The REMIC III Residual Interest shall not have a principal balance
and shall not bear interest.
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SECTION 2.15. Acceptance of Grantor Trusts by Trustee; Issuance of the
Class Y and Class R Certificates.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of any collections of Post-ARD Additional Interest received
on the ARD Loans constitute a Grantor Trust for federal income tax purposes and,
further, that such segregated pool of assets be designated as "Grantor Trust Y".
The Trustee, by its execution and delivery hereof, acknowledges the assignment
to it of the assets of Grantor Trust Y and declares that it will hold such
assets in trust for the exclusive use and benefit of all present and future
Holders of the Class Y Certificates. Concurrently with the assignment to it of
the assets included in Grantor Trust Y, the Certificate Registrar shall execute,
authenticate and deliver, to or upon the order of the Depositor, the Class Y
Certificates in authorized denominations evidencing the entire beneficial
ownership of Grantor Trust Y. The rights of the Holders of the Class Y
Certificates to receive distributions from the proceeds of Grantor Trust Y, and
all ownership interests of such Holders in and to such distributions, shall be
as set forth in this Agreement.
(b) The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse,
all right, title and interest of the Depositor in and to the REMIC I Residual
Interest, the REMIC II Residual Interest, the REMIC III Residual Interest and
the Loan REMIC Residual Interests to the Trustee for the benefit of the Holders
of the Class R Certificates. It is the intention of the parties hereto that the
segregated pool of assets consisting of the REMIC I Residual Interest, the REMIC
II Residual Interest, the REMIC III Residual Interest and the Loan REMIC
Residual Interests constitute a Grantor Trust for federal income tax purposes
and, further, that such segregated pool of assets be designated as "Grantor
Trust R". The Trustee, by its execution and delivery hereof, acknowledges the
assignment to it of the assets of Grantor Trust R and declares that it will hold
such assets in trust for the exclusive use and benefit of all present and future
Holders of the Class R Certificates. Concurrently with the assignment to it of
the assets included in Grantor Trust R, the Certificate Registrar shall execute,
authenticate and deliver, to or upon the order of the Depositor, the Class R
Certificates in authorized denominations evidencing the entire beneficial
ownership of Grantor Trust R. The rights of the Holders of the Class R
Certificates to receive distributions from the proceeds of Grantor Trust R, and
all ownership interests of such Holders in and to such distributions, shall be
as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service
and administer the Mortgage Loans and any REO Properties that it is obligated to
service and administer pursuant to this Agreement, for the benefit of the
Certificateholders (as a collective whole) (as determined by the Master Servicer
or the Special Servicer, as the case may be, in its reasonable judgment), in
accordance with any and all applicable laws, in accordance with the express
terms of this Agreement and the respective Mortgage Loans and, to the extent
consistent with the foregoing, in accordance with the Servicing Standard. The
Master Servicer or Special Servicer, as applicable in accordance with this
Agreement, shall service and administer each Cross-Collateralized Group as a
single Mortgage Loan as and when necessary and appropriate consistent with the
Servicing Standard and applicable law and in accordance with this Agreement.
Without limiting the foregoing, and subject to Section 3.21, (i) the Master
Servicer shall service and administer all Performing Mortgage Loans, and (ii)
the Special Servicer shall service and administer (x) each Mortgage Loan as to
which a Servicing Transfer Event has occurred and is continuing, and (y) each
REO Property; provided, however, that the Master Servicer shall continue to
collect information and, subject to its receipt of information from the Special
Servicer as provided herein, prepare all reports to the Trustee or Certificate
Administrator required hereunder with respect to any Specially Serviced Mortgage
Loans and REO Properties (and the related REO Mortgage Loans), to process
payments at the direction of the Special Servicer, and to render such incidental
services with respect to any Specially Serviced Mortgage Loans and REO
Properties as are specifically provided for herein; and provided, further, that
the Special Servicer shall render such incidental services with respect to any
Performing Mortgage Loans as are specifically provided for herein. The Master
Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
and the Special Servicer, in its own name, with respect to each of the Mortgage
Loans it is obligated to service hereunder, is hereby authorized and empowered
by the Trustee to execute and deliver, on behalf of the Certificateholders and
the Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and other related collateral; and (ii) any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments. In addition, without
limiting the generality of the foregoing, each of the Master Servicer and
Special Servicer is authorized and empowered by the Trustee to execute and
deliver, in accordance with the Servicing Standard and subject to Sections 3.08
and 3.20, any and all assumptions, modifications, waivers, amendments or
consents to or with respect to any documents contained in the related Mortgage
File. Subject to Section 3.10, the Trustee shall, at the written request of a
Servicing Officer of the Master
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Servicer or the Special Servicer, furnish, or cause to be so furnished, to the
Master Servicer or the Special Servicer, as appropriate, any limited powers of
attorney and other documents (each of which shall be prepared by the Master
Servicer or Special Servicer, as applicable) necessary or appropriate to enable
it to carry out its servicing and administrative duties hereunder; provided,
however, that the Trustee shall not be held liable for any misuse of any such
power of attorney by the Master Servicer or the Special Servicer.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, each other under
this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The Master Servicer and the Special Servicer shall each undertake
reasonable efforts consistent with the Servicing Standard to collect all
payments called for under the terms and provisions of the Mortgage Loans it is
obligated to service hereunder and shall follow such collection procedures as
are consistent with applicable law and the Servicing Standard; provided,
however, that neither the Master Servicer nor the Special Servicer shall, with
respect to any ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Post-ARD Additional Interest
(other than the making of requests for its collection), unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Mortgage Loan is, in the reasonable judgment of the Special Servicer, and
without regard to such Post-ARD Additional Interest, also necessary, appropriate
and consistent with the Servicing Standard or (ii) all other amounts due under
such Mortgage Loan have been paid, the payment of such Post-ARD Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. Consistent with the foregoing, the Master Servicer (as to
Performing Mortgage Loans) and the Special Servicer (as to Specially Serviced
Mortgage Loans) each may waive any Default Charges in connection with any
specific delinquent payment on a Mortgage Loan it is obligated to service
hereunder.
(b) Ninety days prior to the maturity date of each Balloon Mortgage
Loan, the Master Servicer shall send a notice to the related Borrower of such
maturity date (with a copy to be sent to the Special Servicer) and shall request
confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), in which all Escrow Payments received by it
with respect to the Mortgage Loans shall be deposited and retained. Subject to
any terms of the related Mortgage Loan documents that specify the nature of the
account in which Escrow Payments shall be held, each Servicing Account shall be
an Eligible Account. Withdrawals of amounts so collected in respect of any
Mortgage Loan (and interest earned thereon) from a Servicing Account may be made
only: (i) to effect the payment of real estate taxes, assessments, insurance
premiums (including, without
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limitation, premiums on any Environmental Insurance Policy), ground rents (if
applicable) and comparable items in respect of the related Mortgaged Property;
(ii) to reimburse the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made
thereby to cover any of the items described in the immediately preceding clause
(i); (iii) to refund to the related Borrower any sums as may be determined to be
overages; (iv) to pay interest or other income, if required and as described
below, to the related Borrower on balances in the Servicing Account (or, if and
to the extent not payable to the related Borrower to pay such interest or other
income (up to the amount of any Net Investment Earnings in respect of such
Servicing Account for each Collection Period) to the Master Servicer); or (v) to
clear and terminate the Servicing Account at the termination of this Agreement
in accordance with Section 9.01. The Master Servicer shall pay or cause to be
paid to the Borrowers interest and other income, if any, earned on the
investment of funds in Servicing Accounts maintained thereby, if and to the
extent required by law or the terms of the related Mortgage Loan. If the Master
Servicer shall deposit in a Servicing Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Servicing
Account, any provision herein to the contrary notwithstanding. Promptly after
any Escrow Payments are received by the Special Servicer from any Borrower, and
in any event within one Business Day after any such receipt, the Special
Servicer shall remit such Escrow Payments to the Master Servicer for deposit in
the applicable Servicing Account(s).
(b) The Master Servicer shall as to each Mortgage Loan (including each
Specially Serviced Mortgage Loan) (i) maintain accurate records with respect to
the related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Mortgage Loan documents; provided, however, that if such Mortgage Loan does not
require the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
each of the Master Servicer and the Special Servicer shall, as to those Mortgage
Loans it is obligated to service hereunder, and subject to and in accordance
with the Servicing Standard, enforce the requirement of the related Mortgage
that the Borrower make payments in respect of such items at the time they first
become due.
(c) In accordance with the Servicing Standard, the Master Servicer
shall, as to all the Mortgage Loans (including, Specially Serviced Mortgage
Loans), advance with respect to each Mortgaged Property all such funds as are
necessary for the purpose of effecting the timely payment of (i) real estate
taxes, assessments and other similar items, (ii) ground rents or other rents (if
applicable), and (iii) premiums on Insurance Policies (including, without
limitation, Environmental Insurance Policies), in each instance if and to the
extent that Escrow Payments (if any) collected from the related Borrower are
insufficient to pay such item when due, and the related Borrower has failed to
pay such item on a timely basis; provided that, in the case of amounts described
in the preceding clause (i), the Master Servicer shall not make a Servicing
Advance of any such amount if the Master Servicer reasonably anticipates (in
accordance with the Servicing Standard) that such amounts will be paid by the
related Borrower on or before the applicable penalty date, in which case the
Master Servicer shall use its best efforts consistent with the Servicing
Standard to confirm
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whether such amounts have been paid and shall make a Servicing Advance of such
amounts, if necessary, not later than five Business Days following confirmation
by the Master Servicer that such amounts have not been, or are not reasonably
likely to be, paid by the applicable penalty date. In no event shall the Master
Servicer be required to make any Servicing Advance under this Section 3.03(c) to
the extent such advance would, if made, constitute a Nonrecoverable Servicing
Advance. All such Advances shall be reimbursable in the first instance from
related collections from the Borrowers and further as provided in Section
3.05(a). No costs incurred by the Master Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and similar items and,
if applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit;
provided, however, that this provision is in no way intended to affect amounts
actually due and owing from the related Borrower under such Mortgage Loan.
(d) The Master Servicer shall, as to all the Mortgage Loans (including
Specially Serviced Mortgaged Loans), establish and maintain, as applicable, one
or more accounts (the "Reserve Accounts"), in which all Reserve Funds, if any,
shall be deposited and retained. Withdrawals of amounts so deposited, and draws
on any Letter of Credit delivered in lieu of Reserve Funds may be made to pay
for or otherwise cover, or (if appropriate) to reimburse the related Borrower in
connection with, the specific items for which such Reserve Funds were escrowed
or any such Letter of Credit was delivered, all in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any agreement
with the related Borrower governing such Reserve Funds or Letter of Credit.
Subject to the terms of the related Mortgage Note and Mortgage, all Reserve
Accounts shall be Eligible Accounts and funds therein may be invested in
Permitted Investments in accordance with the provisions of Section 3.06.
Interest and investment income on funds held in any Reserve Fund will be for the
benefit of the Master Servicer subject to its withdrawal, but only to the extent
it is not otherwise required to be paid to the related Borrower pursuant to
applicable law and/or the related loan documents. The Special Servicer shall
deliver all Reserve Funds (within one Business Day of receipt of such Reserve
Funds by it) to the Master Servicer for deposit in the applicable Reserve
Account.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of an escrow agreement,
operations and maintenance plan agreement or similar agreement or other
agreement related to environmental matters contained in the Servicing File or
Mortgage File, the Master Servicer shall request from the Borrower written
confirmation thereof within a reasonable time after the later of the Closing
Date and the date as of which such plan is required to be established or
completed. To the extent any other action or remediation with respect to
environmental matters is required to have been taken or completed pursuant to
the terms of the related Mortgage Loan documents, the Master Servicer shall
request from the Borrower written confirmation of such action and remediations
within a reasonable time after the later of the Closing Date and the date as of
which such action or remediations are required to have been taken or completed.
To the extent that a Borrower shall fail to promptly respond to any inquiry
described in this Section 3.03(e), the Master Servicer shall notify the Trustee,
the Certificate Administrator, the Special Servicer and the Controlling Class
Representative. The Master Servicer shall promptly notify the Trustee, the
Certificate Administrator, the Special Servicer and the Controlling Class
Representative if the Master Servicer shall determine that any
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Borrower has failed to perform its obligations under the related Mortgage Loan
in respect of environmental matters.
(f) Subject to applicable law and the terms of the related Mortgage
Loan documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
SECTION 3.04. Collection Account, Distribution Account, Interest
Reserve Account and Gain on Sale Reserve Fund.
(a) The Master Servicer shall segregate and hold all funds collected
and received in connection with the Mortgage Pool separate and apart from its
own funds and general assets. In connection therewith, the Master Servicer shall
establish and maintain one or more segregated accounts (collectively, the
"Collection Account"), in which the funds described below are to be deposited
and held on behalf of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Collection Account shall
be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Collection Account, within two Business Days of receipt (in the
case of payments by Borrowers or other collections on the Mortgage Loans) or as
otherwise required hereunder, the following payments and collections received or
made by or on behalf of the Master Servicer in respect of the Mortgage Pool
subsequent to the Closing Date (other than in respect of scheduled payments of
principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date, which payments shall be delivered promptly to the related Mortgage
Loan Seller or its designee, with negotiable instruments endorsed as necessary
and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans,
including Default Interest and Post-ARD Additional Interest;
(iii) all Prepayment Premiums received in respect of the Mortgage
Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the Mortgage Loans;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by the Master Servicer or the
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master forced place
hazard policy;
(vii) any amounts required to be transferred from any REO Account
pursuant to Section 3.16(c); and
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(viii) insofar as they do not constitute Escrow Payments, any amounts
paid by a Borrower specifically to cover items for which a Servicing
Advance has been made.
The foregoing requirements for deposit in the Collection Account shall
be exclusive. Without limiting the generality of the foregoing, (A) actual
payments from Borrowers in the nature of Escrow Payments, late payment charges,
assumption fees, assumption application fees, extension fees, modification fees,
charges for beneficiary statements or demands, amounts collected for checks
returned for insufficient funds, and processing or similar fees, need not be
deposited by the Master Servicer in the Collection Account and (B) with respect
to any amount representing a sub-servicing fee that otherwise would be required
to be deposited by the Master Servicer in the Collection Account and that, once
so deposited, would have been permitted to be withdrawn immediately from the
Collection Account pursuant to Section 3.05 as part of the payment of the Master
Servicing Fee, such amount shall be deemed to have been deposited to and
withdrawn from the Collection Account for such purpose to the extent that such
sum has been retained by the Sub-Servicer pursuant to the related Sub-Servicing
Agreement. The Master Servicer shall promptly deliver to the Special Servicer
any of the foregoing items received by it, if and to the extent that such items
constitute Additional Special Servicing Compensation. If the Master Servicer
shall deposit in the Collection Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Collection Account,
any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of the first paragraph of this Section 3.04(a) with respect to
any Mortgage Loan, the Special Servicer shall promptly, but in no event later
than one Business Day after receipt, remit such amounts to the Master Servicer
for deposit into the Collection Account, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement. With respect to any such amounts
paid by check to the order of the Special Servicer, the Special Servicer shall
endorse such check to the order of the Master Servicer (in its capacity as
such), without recourse, representation or warranty, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
cannot be so endorsed and delivered because of a restrictive endorsement. Any
such amounts received by the Special Servicer with respect to an REO Property
shall be deposited by the Special Servicer into the REO Account and remitted to
the Master Servicer for deposit into the Collection Account pursuant to Section
3.16(c).
(b) The Certificate Administrator shall establish and maintain one or
more segregated accounts (collectively, the "Distribution Account"), to be held
on behalf of the Trustee in trust for the benefit of the Certificateholders.
Each account that constitutes the Distribution Account shall be an Eligible
Account. The Certificate Administrator shall, as a bookkeeping matter, establish
and maintain two sub-accounts of the Distribution Account (i) one of which
sub-accounts (such sub-account, the "REMIC Sub-Account") shall be deemed to be
held in trust for the benefit of the Holders of the REMIC III Regular Interest
Certificates and the Class R Certificates and (ii) one of which sub-accounts
(such sub-account, the "Class Y Sub-Account") shall be deemed to be held in
trust for the benefit of the Holders of the Class Y Certificates. By 2:00 p.m.
(New York City time) on each Master Servicer Remittance Date, the Master
Servicer shall deliver to the Certificate Administrator, for deposit in the
Distribution Account, an aggregate amount of immediately available funds equal
to the Master Servicer Remittance Amount for such Master
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Servicer Remittance Date. Immediately upon deposit of the Master Servicer
Remittance Amount for any Master Servicer Remittance Date into the Distribution
Account, any portion thereof that represents any Post-ARD Additional Interest
related to the ARD Loans shall be deemed to have been deposited into the Class Y
Sub-Account, and the remaining portion thereof shall be deemed to have been
deposited into the REMIC Sub-Account. In addition, the Master Servicer shall, as
and when required hereunder, deliver to the Certificate Administrator for
deposit in the Distribution Account any P&I Advances and Compensating Interest
Payments required to be made by the Master Servicer hereunder. Furthermore, any
amounts paid by any party hereto to indemnify the Trust Fund pursuant to any
provision hereof shall be delivered to the Certificate Administrator for deposit
in the Distribution Account. The Certificate Administrator shall, upon receipt,
deposit in the Distribution Account any and all amounts received or, pursuant to
Section 4.03, advanced by the Trustee or any Fiscal Agent that are required by
the terms of this Agreement to be deposited therein. As and when required
pursuant to Section 3.05(c), the Certificate Administrator shall transfer
Interest Reserve Amounts in respect of the Interest Reserve Loans from the
Interest Reserve Account to the Distribution Account. Furthermore, as and when
required pursuant to Section 3.05(d), the Certificate Administrator shall
transfer monies from the Gain on Sale Reserve Fund to the Distribution Account.
If the Certificate Administrator shall deposit in the Distribution Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Distribution Account, any provision herein to the contrary
notwithstanding.
(c) The Certificate Administrator shall establish and maintain one or
more accounts (collectively, the "Interest Reserve Account") to be held on
behalf of the Trustee in trust for the benefit of the Certificateholders. Each
account that constitutes the Interest Reserve Account shall be an Eligible
Account. On the Distribution Date in January (except during a leap year) and
February of each calendar year, commencing in 2001, prior to any distributions
being made in respect of the Certificates on such Distribution Date, the
Certificate Administrator shall, with respect to each Interest Reserve Loan,
withdraw from the Distribution Account and deposit in the Interest Reserve
Account an amount equal to the Interest Reserve Amount, if any, in respect of
such Interest Reserve Loan for such Distribution Date; provided that no such
transfer of monies from the Distribution Account to the Interest Reserve Account
shall be made on the Final Distribution Date.
(d) Upon or prior to the receipt of any Excess Liquidation Proceeds in
connection with the liquidation of any defaulted Mortgage Loan or REO Property,
the Certificate Administrator shall establish and maintain one or more accounts
(collectively, the "Gain on Sale Reserve Fund") to be held on behalf of the
Trustee in trust for the benefit of the Certificateholders. Each account that
constitutes the Gain on Sale Reserve Fund shall be an Eligible Account. On each
Master Servicer Remittance Date, the Certificate Administrator shall deposit
into the Gain on Sale Reserve Fund that portion, if any, of the Master Servicer
Remittance Amount received by it on such Master Servicer Remittance Date that
constitutes Excess Liquidation Proceeds, which Excess Liquidation Proceeds shall
be indicated by the Master Servicer in the CMSA Loan Periodic Update File;
provided that no such deposit into the Gain on Sale Reserve Fund shall be made
in the month in which the Final Distribution Date occurs.
(e) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Funds in the
Distribution Account, the Interest Reserve Account and the Gain on Sale Reserve
Fund shall remain uninvested. The Master Servicer shall give notice to the other
parties hereto of the location of the Collection Account as of the
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Closing Date and of the new location of the Collection Account prior to any
change thereof. The Distribution Account, Interest Reserve Account and Gain on
Sale Reserve Fund shall be held at the Corporate Trust Office of LaSalle, 135
LaSalle Street, Suite 1625, Chicago, Illinois 60603, as of the Closing Date, and
the Certificate Administrator shall give notice to the parties hereto of the new
location of each of the Distribution Account, Interest Reserve Account and Gain
on Sale Reserve Fund prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection Account, the
Distribution Account, the Interest Reserve Account and
the Gain on Sale Reserve Fund.
(a) The Master Servicer may, from time to time, make withdrawals from
the Collection Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to remit to the Certificate Administrator for deposit in the
Distribution Account the Master Servicer Remittance Amount for each Master
Servicer Remittance Date and any amounts that may be applied to make P&I
Advances pursuant to Section 4.03(a);
(ii) to reimburse any Fiscal Agent, the Trustee or itself, in that
order, for unreimbursed P&I Advances made thereby (in each case, with its
own funds), any Fiscal Agent's, the Trustee's and the Master Servicer's, as
the case may be, respective rights to reimbursement pursuant to this clause
(ii) with respect to any P&I Advance (other than Nonrecoverable P&I
Advances, which are reimbursable pursuant to clause (vii) below), however,
being limited to amounts that represent Late Collections of interest and
principal received in respect of the particular Mortgage Loan or REO
Mortgage Loan as to which such P&I Advance was made (net of related Master
Servicing Fees and/or Workout Fees);
(iii) to pay to itself earned and unpaid Master Servicing Fees with
respect to each Mortgage Loan, the Master Servicer's rights to payment
pursuant to this clause (iii) with respect to any Mortgage Loan or REO
Mortgage Loan through the end of the then most recently ended calendar
month, however, being limited to amounts received on or in respect of such
Mortgage Loan (whether in the form of payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds) or such REO Mortgage Loan
(whether in the form of REO Revenues, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds) that are allocable as interest thereon;
(iv) to pay to the Special Servicer, out of general collections on the
Mortgage Loans and any REO Properties, earned and unpaid Special Servicing
Fees with respect to each Specially Serviced Mortgage Loan and REO Mortgage
Loan through the end of the then most recently ended calendar month;
(v) to pay the Special Servicer (or, if applicable, any predecessor
thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is
entitled pursuant to, and from the sources contemplated by, the second and
third paragraphs of Section 3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee, itself or the Special
Servicer, in that order, for any unreimbursed Servicing Advances made
thereby (in each case, with its
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own funds), any Fiscal Agent's, the Trustee's, the Master Servicer's and
the Special Servicer's, as the case may be, respective rights to
reimbursement pursuant to this clause (vi) with respect to any Servicing
Advance (other than Nonrecoverable Servicing Advances, which are
reimbursable pursuant to clause (vii) below) being limited to (A) payments
made by the related Borrower that are allocable to cover the item in
respect of which such Servicing Advance was made, and (B) Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if applicable,
REO Revenues received in respect of the particular Mortgage Loan or REO
Property as to which such Servicing Advance was made;
(vii) to reimburse any Fiscal Agent, the Trustee, itself or the Special
Servicer, in that order, out of general collections on the Mortgage Loans
and any REO Properties, for any unreimbursed Advances made thereby that
have been determined to be Nonrecoverable Advances;
(viii) to make payments, out of Default Interest, of unpaid interest on
Advances and, except for Special Servicing Fees, any other unpaid expenses
that, if paid from a source other than Default Interest, would constitute
Additional Trust Fund Expenses, all in accordance with clauses first and
second of Section 3.25(a);
(ix) to the extent that, during any Collection Period, the Master
Servicer has reimbursed or is reimbursing any Fiscal Agent, the Trustee,
itself or the Special Servicer, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) above or pursuant to Section
3.03(c), and insofar as payment has not already been made, and the Default
Interest collected during such Collection Period is not sufficient to make
such payment pursuant to clause (viii) above, to also pay such Person, out
of general collections on the Mortgage Loans and any REO Properties, any
related Advance Interest accrued and payable on the portion of such Advance
so reimbursed or being reimbursed;
(x) to pay itself any items of Additional Master Servicing
Compensation, and to pay the Special Servicer any items of Additional
Special Servicing Compensation, in each case on deposit in the Collection
Account from time to time;
(xi) to reimburse the Trustee, the Master Servicer and the Special
Servicer for any reasonable out-of-pocket expenses for which it is entitled
to be reimbursed pursuant to, and from the sources contemplated by, Section
2.03(e);
(xii) to pay any unpaid Liquidation Expenses incurred with respect to
any Mortgage Loan or REO Property, such payments to be made first out of
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if
applicable, REO Revenues received in respect of such Mortgage Loan or REO
Property, as the case may be, and then out of general collections on other
Mortgage Loans and REO Properties;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties, certain servicing
expenses that would, if advanced, constitute Nonrecoverable Servicing
Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and any
REO Properties, for costs and expenses incurred by the Trust Fund (A)
pursuant to Section
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3.09(c) (other than the costs of environmental testing, which are to be
covered by, and reimbursable as, a Servicing Advance) and (B) pursuant the
first sentence of Section 3.12(a);
(xv) to pay itself, the Special Servicer, the Tax Administrator, the
Certificate Administrator, the Custodian, the Depositor, the Trustee, any
Fiscal Agent, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties, any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans and any
REO Properties, for (A) the cost of the Opinion of Counsel contemplated by
Section 11.02(a), and (B) the cost of recording this Agreement in
accordance with Section 11.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and any
REO Properties, for any expense (including the reasonable fees of tax
accountants and attorneys) incurred by the Tax Administrator pursuant to
Section 3.17(a)(iii) in connection with providing advice to the Special
Servicer;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the Tax Administrator, the Certificate
Administrator, the Custodian or the Depositor, as the case may be, any
amount specifically required to be paid to such Person at the expense of
the Trust Fund under any provision of this Agreement to which reference is
not made in any other clause of this Section 3.05(a), it being acknowledged
that this clause (xviii) shall not be construed to modify any limitation
otherwise set forth in this Agreement on the time at which any Person is
entitled to payment or reimbursement of any amount or the funds from which
any such payment or reimbursement is permitted to be made;
(xix) to pay itself, the Special Servicer, a Mortgage Loan Seller, a
Controlling Class Certificateholder or any other particular Person, as the
case may be, with respect to each Mortgage Loan, if any, previously
purchased or otherwise removed from the Trust Fund by such Person pursuant
to or as contemplated by this Agreement, all amounts received thereon
subsequent to the date of purchase; and
(xx) to clear and terminate the Collection Account at the termination
of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any particular time
(after withdrawing any portion of such amounts deposited in the Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xix)
above, then the corresponding withdrawals from the Collection Account shall be
made in the following priority and subject to the following rules: (A) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds,
provided that where, as in clauses (ii) and (vi), an order of priority is set
forth to govern the application of funds withdrawn from the Collection Account
pursuant to such
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clauses, payments, reimbursements or remittances pursuant to any such clause
shall be made in such order of priority to the extent of available funds; and
(B) if the payment, reimbursement or remittance can be made from any funds on
deposit in the Collection Account, then (following any withdrawals made from the
Collection Account in accordance with the immediately preceding clause (A)
above) such payment, reimbursement or remittance shall be made from the general
funds remaining on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds, provided that
where, as in clause (vii), an order of priority is set forth to govern the
application of funds withdrawn from the Collection Account pursuant to such
clause, payments, reimbursements or remittances pursuant to such clause shall be
made in such order of priority to the extent of available funds.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Collection Account pursuant to any of
clauses (ii) through (xix) above.
(b) The Certificate Administrator shall, from time to time, make
withdrawals from the Distribution Account for each of the following purposes, to
the extent not previously paid (the order set forth below not constituting an
order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01;
(ii) to pay itself, the Trustee, the Tax Administrator or any of their
respective directors, officers, employees and agents any amounts payable or
reimbursable to any such Person pursuant to Section 8.05, including the
Certificate Administrator's Fee to the Certificate Administrator and the
Trustee's Fee to the Trustee;
(iii) to pay the Certificate Registrar, the Custodian, the Tax
Administrator, any Fiscal Agent or any of their respective directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Sections 8.05(b) and 8.13(a);
(iv) to pay for the cost of the Opinions of Counsel sought by the
Certificate Administrator or the Trustee as contemplated by Section
11.01(a) or 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee or Certificate Administrator which amendment is in
furtherance of the rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on any
REMIC Pool or on the assets or transactions of any REMIC Pool, together
with all incidental costs and expenses, and any and all expenses relating
to tax audits, if and to the extent that either (A) none of the parties
hereto are liable therefor pursuant to Section 10.01(b) and/or Section
10.01(f) or (B) any such Person that may be so liable has failed to timely
make the required payment;
(vi) to transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans to the Interest Reserve Account as and when required by
Section 3.04(c); and
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(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2001), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Certificate Administrator shall withdraw from the Interest Reserve Account and
deposit in the Distribution Account all Interest Reserve Amounts in respect of
the Interest Reserve Loans then on deposit in the Interest Reserve Account.
(d) On each Distribution Date, prior to 11:00 a.m. New York City time,
the Certificate Administrator shall withdraw from the Gain on Sale Reserve Fund
and deposit in the Distribution Account, for distribution on such Distribution
Date pursuant to Section 4.01, an amount equal to the lesser of (i) the entire
amount, if any, then on deposit in the Gain on Sale Reserve Fund and (ii) the
excess, if any, of the aggregate amount distributable on such Distribution Date
pursuant to Sections 4.01(a) and 4.01(b), over the Standard Available
Distribution Amount for such Distribution Date (calculated without regard to
such transfer from the Gain on Sale Reserve Fund to the Distribution Account);
provided, that on the Final Distribution Date, prior to 11:00 a.m. New York City
time, the Certificate Administrator shall withdraw from the Gain on Sale Reserve
Fund and deposit in the Distribution Account, for distribution on such
Distribution Date pursuant to Section 4.01, any and all amounts then on deposit
in the Gain on Sale Reserve Fund.
(e) The Trustee, any Fiscal Agent, the Certificate Administrator, the
Tax Administrator, the Depositor, the Master Servicer and the Special Servicer,
as applicable, shall in all cases have a right prior to the Certificateholders
to any particular funds on deposit in the Collection Account and the
Distribution Account from time to time for the reimbursement or payment of
compensation, Advances (with interest thereon at the Reimbursement Rate) and
their respective expenses hereunder, but only if and to the extent such
compensation, Advances (with interest) and expenses are to be reimbursed or paid
from such particular funds on deposit in the Collection Account or the
Distribution Account pursuant to the express terms of this Agreement.
SECTION 3.06. Investment of Funds in the Collection Account, Servicing
Accounts, Reserve Accounts and the REO Account.
(a) The Master Servicer may direct (pursuant to a standing order or
otherwise) any depository institution (including the Certificate Administrator)
maintaining the Collection Account or any Servicing Account or Reserve Account
held by it, and the Special Servicer may direct (pursuant to a standing order or
otherwise) any depository institution maintaining the REO Account, to invest, or
if it is such depository institution, may itself invest, the funds held therein
(each such account, for purposes of this Section 3.06, an "Investment Account")
in (but only in) one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement or the related
Mortgage Loan documents, as applicable; provided that any such investment of
funds in any Servicing Account or Reserve Account shall be subject to applicable
law and the terms of the related Mortgage Loan documents; and provided, further,
that the funds in any Investment Account shall remain uninvested unless and
until the Master Servicer or Special Servicer, as applicable, gives timely
investment instructions with respect thereto pursuant to this Section 3.06. All
such
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Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such). The Master Servicer (with respect to
Permitted Investments of amounts in the Collection Account, the Servicing
Accounts and the Reserve Accounts) and the Special Servicer (with respect to
Permitted Investments of amounts in the REO Account), acting on behalf of the
Trustee, shall (and Trustee hereby designates the Master Servicer and the
Special Servicer, as applicable, as the Person that shall) (i) be the
"entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security entitlement",
"control", "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by the Master Servicer or the Special
Servicer shall constitute "control" by a Person designated by, and acting on
behalf of, the Trustee for purposes of Revised Article 8 (1994 Revision) of the
UCC. If amounts on deposit in an Investment Account are at any time invested in
a Permitted Investment payable on demand, the Master Servicer (in the case of
the Collection Account or any Servicing Account or Reserve Account) or the
Special Servicer (in the case of the REO Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount at least equal to the lesser of (1) all amounts then
payable thereunder and (2) the amount required to be withdrawn
on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer,
as the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds
in the Collection Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05(a). Whether or not the Master Servicer directs
the investment of funds in any Servicing Account or Reserve Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each Collection
Period and, further, if and to the extent not required to be paid to the related
Borrower pursuant to applicable law or the terms of the related Mortgage Loan,
shall be for the sole and exclusive benefit of the Master Servicer and shall be
subject to withdrawal from time to time in accordance with Section 3.03. If the
Special Servicer directs the investment of funds in the REO Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of the Special Servicer and
shall be subject to its withdrawal in accordance with Section 3.16(b). If any
loss shall be incurred in respect of any Permitted Investment on deposit in any
Investment Account (other than a loss of what would otherwise have constituted
investment earnings and, in the case of a Servicing Account or an REO Account,
other than a loss of an investment made for the benefit of the related Borrower,
which is
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either invested at the direction of the related Borrower or as required under
the related Mortgage Loan documents), the Master Servicer (in the case of the
Collection Account and any Servicing Account or Reserve Account) and the Special
Servicer (in the case of the REO Account) shall promptly deposit therein from
its own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, in respect of such Investment Account for such
Collection Period (or, in the case of a Servicing Account or Reserve Account,
the entire amount of such loss).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, and the Master Servicer or the Special Servicer, as applicable, has
not taken such action, the Trustee may, and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class of REMIC III Regular Interest Certificates, the
Trustee shall, take such action to enforce such payment or performance,
including the institution and prosecution of appropriate legal proceedings.
(d) Amounts on deposit in the Distribution Account, the Interest
Reserve Account and the Gain on Sale Reserve Fund shall remain uninvested.
(e) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Standard Available Distribution Amount and the Master Servicer Remittance
Amount, the amounts so invested shall be deemed to remain on deposit in such
Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) The Master Servicer shall, as to all the Mortgage Loans, use
reasonable efforts in accordance with the Servicing Standard to cause the
related Borrower to maintain, and, if the related Borrower does not so maintain,
the Master Servicer (even in the case of Specially Serviced Mortgage Loans)
shall itself maintain (subject to Sections 3.11(h) and 3.11(i) hereof, and to
the extent the Trustee, as mortgagee on behalf of the Certificateholders, has an
insurable interest and to the extent available at commercially reasonable
rates), all insurance coverage as is required under the related Mortgage subject
to applicable law); provided that if any Mortgage permits the holder thereof to
dictate to the Borrower the insurance coverage to be maintained on such
Mortgaged Property, the Master Servicer or Special Servicer, as appropriate,
shall impose such insurance requirements as are consistent with the Servicing
Standard and shall require that such insurance be obtained from Qualified
Insurers with the Required Claims-Paying Ratings. If and to the extent that the
Borrower under any Mortgage Loan fails to maintain any such insurance coverage
with respect to the related Mortgaged Property, the Master Servicer shall cause
such insurance to be maintained with Qualified Insurers that possess (or whose
obligations are
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guaranteed or backed, in writing, by an entity having) the Required
Claims-Paying Ratings; provided that the Trustee, as mortgagee of record, has an
insurable interest, the maintenance of such insurance is consistent with the
Servicing Standard and the subject insurance is available at commercially
reasonable rates. The Special Servicer shall also cause to be maintained for
each REO Property, in each case with a Qualified Insurer that possesses (or
whose obligations are guaranteed or backed, in writing, by an entity having) the
Required Claims-Paying Ratings at the time such policy is purchased, no less
insurance coverage than was previously required of the related Borrower under
the related Mortgage and, if the related Mortgage did not so require, hazard
insurance, public liability insurance, flood insurance (if applicable) and, to
the extent consistent with the Servicing Standard and available at commercially
reasonable rates, business interruption or rent loss insurance and earthquake
insurance, all in such amounts as are consistent with the Servicing Standard.
All such insurance policies shall: (i) contain a "standard" mortgagee clause,
with loss payable to the Master Servicer on behalf of the Trustee (in the case
of insurance maintained in respect of the Mortgaged Properties); or (ii) shall
name the Trustee as the insured, with loss payable to the Special Servicer on
behalf of the Trustee (in the case of insurance maintained in respect of REO
Properties). All such insurance policies shall be issued by an insurer
authorized under applicable law to issue such insurance, and, unless prohibited
by the related Mortgage, may contain a deductible clause (not in excess of a
customary amount). Any amounts collected by the Master Servicer or the Special
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Borrower, in each case in accordance with
the Servicing Standard) shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 3.05(a), in the case of amounts received in
respect of a Mortgage Loan, or in the REO Account, subject to withdrawal
pursuant to Section 3.16(c), in the case of amounts received in respect of an
REO Property. Any cost incurred by the Master Servicer or the Special Servicer,
as applicable in maintaining any such insurance shall not, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
unpaid principal balance or Stated Principal Balance of the related Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided,
however, that this provision is in no way intended to affect amounts due and
owing from the related Borrower under such Mortgage Loan.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain a blanket policy insuring against hazard losses on any or all of the
Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in
the case of the Special Servicer), then, to the extent such policy (i) is
obtained from a Qualified Insurer that possesses (or whose obligations are
guaranteed or backed, in writing, by an entity having) the Required
Claims-Paying Ratings, and (ii) provides protection equivalent to the individual
policies otherwise required, the Master Servicer or the Special Servicer, as the
case may be, shall conclusively be deemed to have satisfied its obligation to
cause hazard insurance to be maintained on the Mortgaged Properties or REO
Properties, as applicable, so covered, and the premium costs thereof shall be,
if and to the extent they are specifically attributable either to a specific
Mortgaged Property during any period that the related Borrower has failed to
maintain the hazard insurance required under the related Mortgage Loan in
respect of such Mortgaged Property or to a specific REO Property, a Servicing
Advance reimbursable pursuant to and to the extent permitted under Section
3.05(a); provided that, to the extent that such premium costs are attributable
to properties other than Mortgaged Properties and/or REO Properties or are
attributable to Mortgaged Properties as to which the hazard insurance required
under the related Mortgage Loan is being maintained, they shall be borne by the
Master Servicer or Special Servicer, as the case may be, without right of
reimbursement. Such a blanket policy may contain a deductible clause (not in
excess of a customary amount), in which case the Master Servicer or the Special
Servicer, as appropriate, shall, if there shall not have been maintained on the
related Mortgaged Property or REO Property, as applicable, a hazard insurance
policy complying with the requirements of Section 3.07(a), and there shall have
been one or more
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losses which would have been covered by such property specific policy (taking
into account any deductible clause that would have been permitted therein),
promptly deposit into the Collection Account from its own funds (without right
of reimbursement) the amount of such losses up to the difference between the
amount of the deductible clause in such blanket policy and the amount of any
deductible clause that would have been permitted under such property specific
policy. The Master Servicer and the Special Servicer each agree to prepare and
present, on behalf of itself, the Trustee and the Certificateholders, claims
under any such blanket policy maintained by it in a timely fashion in accordance
with the terms of such policy.
If the Master Servicer shall cause any Mortgaged Property or the
Special Servicer shall cause any REO Property to be covered by a master forced
place insurance policy naming the Master Servicer or the Special Servicer, as
applicable, on behalf of the Trustee as the loss payee, then to the extent such
policy (i) is obtained from a Qualified Insurer that possesses (or whose
obligations are guaranteed or backed, in writing, by an entity having) the
Required Claims-Paying Ratings and (ii) provides protection equivalent to the
individual policies otherwise required, the Master Servicer or the Special
Servicer, as applicable, shall conclusively be deemed to have satisfied its
obligation to cause such insurance to be maintained on such Mortgaged Property
(in the case of the Master Servicer) or REO Property (in the case of the Special
Servicer). If the Master Servicer shall cause any Mortgaged Property as to which
the related Borrower has failed to maintain the required insurance coverage, or
the Special Servicer shall cause any REO Property, to be covered by such master
forced place insurance policy, then the incremental costs of such insurance
applicable to such Mortgaged Property or REO Property (i.e., other than any
minimum or standby premium payable for such policy whether or not any Mortgaged
Property or REO Property is covered thereby) paid by the Master Servicer or the
Special Servicer, as applicable, shall constitute a Servicing Advance. The
Master Servicer shall, consistent with the Servicing Standard and the terms of
the related Mortgage Loan documents, pursue the related Borrower for the amount
of such incremental costs. All other costs associated with any such master
forced place insurance policy (including, any minimum or standby premium payable
for such policy) shall be borne by the Master Servicer or Special Servicer, as
the case may be, without right of reimbursement. Such master forced place
insurance policy may contain a deductible clause (not in excess of a customary
amount), in which case the Master Servicer or the Special Servicer, as
applicable, shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property, as the case may be, a policy
otherwise complying with the provisions of Section 3.07(a), and there shall have
been one or more losses which would have been covered by such property specific
policy had it been maintained, promptly deposit into the Collection Account from
its own funds (without right of reimbursement) the amount not otherwise payable
under the master forced place policy because of such deductible clause, to the
extent that any such deductible exceeds the deductible limitation that pertained
to the related Mortgage Loan, or, in the absence of any such deductible
limitation, the deductible limitation which is consistent with the Servicing
Standard.
(c) On or before the Closing Date, with respect to each of the
Environmentally Insured Mortgage Loans, the Depositor shall notify the insurer
under the related Environmental Insurance Policy and take all other action
necessary for the Trustee, on behalf of the Certificateholders, to be an insured
(and for the Master Servicer, on behalf of the Trust, to make claims) under such
Environmental Insurance Policy. In the event that the Master Servicer has actual
knowledge of any event (an "Insured Environmental Event") giving rise to a claim
under any Environmental Insurance Policy in respect of any Environmentally
Insured Mortgage Loan for
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which the Borrower has not filed a claim, the Master Servicer shall, in
accordance with the terms of such Environmental Insurance Policy and the
Servicing Standard, timely make a claim thereunder with the appropriate insurer
and shall take such other actions necessary under such Environmental Insurance
Policy in order to realize the full value thereof for the benefit of the
Certificateholders. With respect to each Environmental Insurance Policy in
respect of an Environmentally Insured Mortgage Loan, the Master Servicer shall
review and familiarize itself with the terms and conditions relating to
enforcement of claims and shall monitor the dates by which any claim must be
made or any action must be taken under such policy to realize the full value
thereof for the benefit of the Certificateholders in the event the Master
Servicer has actual knowledge of an Insured Environmental Event giving rise to a
claim under such policy.
The Master Servicer shall abide by the terms and conditions precedent
to payment of claims under the Environmental Insurance Policies with respect to
the Environmentally Insured Mortgage Loans and take all such action as may be
required to comply with the terms and provisions of such policies in order to
maintain such policies in full force and effect and to make claims thereunder.
In the event that the Master Servicer receives notice of any
termination of any Environmental Insurance Policy with respect to
Environmentally Insured Mortgage Loan, the Master Servicer shall, within five
Business Days after receipt of such notice, notify the Special Servicer, the
Controlling Class Representative, the Rating Agencies and the Trustee of such
termination in writing. Upon receipt of such notice, the Master Servicer shall
address such termination in accordance with Section 3.07(a). Any legal fees,
premiums or other out-of-pocket costs incurred in accordance with the Servicing
Standard in connection with enforcing the obligations of the Borrower under any
Environmental Insurance Policy or a resolution of such termination of an
Environmental Insurance Policy shall be paid by the Master Servicer and shall be
reimbursable to it as a Servicing Advance.
The Master Servicer shall monitor the actions, and enforce the
obligations, of the related Borrower under each Environmentally Insured Mortgage
Loan insofar as such actions/obligations relate to (i) to the extent consistent
with Section 3.07(a), the maintenance (including, without limitation, any
required renewal) of an Environmental Insurance Policy with respect to the
related Mortgaged Property or (ii) environmental testing or remediation at the
related Mortgaged Property.
(d) Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement keep in force with Qualified Insurers
that possess (or whose obligations are guaranteed or backed, in writing, by
entities having) the Required Claims-Paying Ratings, a fidelity bond in such
form and amount as would permit it to be a qualified Fannie Mae or Freddie Mac
seller-servicer of multifamily mortgage loans. Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or the Special Servicer, as the case may be. Such fidelity bond
shall provide that it may not be canceled without 30 days' prior written notice
to the Trustee.
In addition, each of the Master Servicer and the Special Servicer shall
at all times during the term of this Agreement keep in force with Qualified
Insurers that possess (or whose
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obligations are guaranteed or backed, in writing, by entities having) the
Required Claims-Paying Ratings, a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its obligation to service the Mortgage Loans for which it is
responsible hereunder, which policy or policies shall be in such form and amount
as would permit it to be a qualified Fannie Mae or Freddie Mac seller-servicer
of multifamily mortgage loans. Such errors and omissions policy shall provide
that it may not be canceled without 30 days' prior written notice to the
Trustee.
(e) All insurance coverage required to be maintained under this Section
3.07 shall be obtained from Qualified Insurers.
SECTION 3.08. Enforcement of Alienation Clauses.
The Master Servicer shall promptly notify the Special Servicer of any
intent of, or request on the part of, a Borrower under a Performing Mortgage
Loan or any principal of such Borrower in connection with the transfer or
further encumbrance of the related Mortgaged Property or the transfer of an
interest in such Borrower. The Special Servicer, on behalf of the Trustee as the
mortgagee of record, shall evaluate any right to transfer and, subject to
Section 3.24, shall enforce the restrictions contained in any Mortgage on
transfers or further encumbrances of the related Mortgaged Property and on
transfers of interests in the related Borrower, unless the Special Servicer has
determined, in its reasonable, judgment, that waiver of such restrictions would
be in accordance with the Servicing Standard; provided that the Special Servicer
shall not waive any right it has, or grant any consent it is otherwise entitled
to withhold, under any related "due-on-encumbrance" clause until it has received
written confirmation from each Rating Agency that such action would not result
in an Adverse Rating Event with respect to any Class of Rated Certificates; and
provided, further, that, if it involves any Mortgage Loan (other than a Mortgage
Loan identified on Schedule B-1G) that, individually or together with all other
Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such
Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers
that are known to the Special Servicer to be affiliated with the Borrower under
such Mortgage Loan, has a Cut-off Date Principal Balance of $15,000,000 or more,
the Special Servicer shall not waive any right it has, or grant any consent it
is otherwise entitled to withhold, under any related "due-on-sale" clause until
it has received written confirmation from each Rating Agency that such action
would not result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and provided, further, that the Special Servicer shall not (to the
extent that it is within the control thereof to prohibit such event) consent to
the transfer of any Mortgaged Property which secures a Cross-Collateralized
Group unless all of the Mortgaged Properties securing such Cross-Collateralized
Group are transferred simultaneously by the respective Borrower. After having
made any determination to waive the Trust's rights under a "due-on-sale" or
"due-on encumbrance" clause, the Special Servicer shall deliver to the Trustee,
the Certificate Administrator, each Rating Agency, the Controlling Class
Representative and the Master Servicer an Officer's Certificate setting forth
the basis for such determination.
The Master Servicer shall provide the Special Servicer with all such
information as the Special Servicer may reasonably request in order to make the
determination that the waiver of a "due-on-sale" or "due-on-encumbrance" clause
is in accordance with the Servicing Standard. In making such determination, the
Special Servicer shall, among other things, take into account, subject to the
Servicing Standard and the related loan documents, any increase in taxes (based
on a
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fully assessed number calculated off of the proposed purchase price) as a result
of the transfer. The Special Servicer shall compute a debt service coverage for
the subject Mortgage Loan using leasing commissions, tenant improvement costs
and capital expenditures deducted from cash flow in amounts equal to the
originator's capital expenditures, tenant improvement costs and leasing
commission items at origination and taxes based on a fully assessed number
calculated off of the proposed purchase price and shall provide copies of the
results of such calculation to each Rating Agency showing a comparison of the
recalculated debt service coverage ratio versus the debt service coverage ratio
at origination.
If the Special Servicer (i) collects an assumption fee in connection
with any transfer or proposed transfer of any interest in a Borrower or a
Mortgaged Property and (ii) fails to collect from such Borrower or the related
transferee (or waives the collection of) any fees, expenses or costs associated
with that transfer or proposed transfer which are required to be paid by such
Borrower or related transferee, under the terms of the related Mortgage Loan,
then the Special Servicer shall apply the assumption fee to first cover any such
fees, expenses or costs that would otherwise be payable from or reimbursable out
of the Trust Fund, and only the portion of such assumption fee remaining after
payment of such fees, expenses and costs shall be payable to the Master Servicer
and/or the Special Servicer, as applicable, as additional compensation under
Section 3.11 hereof; and provided, further that the Special Servicer shall
collect all fees, costs and expenses with respect to such transfer unless the
Special Servicer determines that such collection of any such fees, costs and
expenses would violate the Servicing Standard.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b), 3.09(c),
3.09(d) and 3.24, exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Mortgage Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including pursuant to Section 3.20;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Post-ARD Additional Interest
(other than the making of requests for its collection) unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Mortgage Loan is, in the reasonable judgment of the Special Servicer, and
without regard to such Post-ARD Additional Interest, also necessary, appropriate
and consistent with the Servicing Standard or (ii) all other amounts due under
such Mortgage Loan have been paid, the payment of such Post-ARD Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. In connection with the foregoing, in the event of a default
under any Mortgage Loan or Cross-Collateralized Group that is secured by real
properties located in multiple states, and such states include California or
another state with a statute, rule or regulation comparable to California's "one
action rule", then the Special Servicer shall consult Independent counsel
regarding the order and manner in which the Special Servicer should foreclose
upon or comparably proceed against such properties. The reasonable costs of such
consultation shall be paid by, and reimbursable to, the Special Servicer as a
Servicing Advance. In addition, all costs and expenses incurred in any such
proceedings shall be paid by, and reimbursable to, the
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Special Servicer as a Servicing Advance. Nothing contained in this Section 3.09
shall be construed so as to require the Special Servicer, on behalf of the
Trust, to make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by the Special Servicer taking into account the factors described in
Section 3.18(e) and the results of any appraisal obtained pursuant to the
following sentence or otherwise, all such bids to be made in a manner consistent
with the Servicing Standard; provided, however, that any such bid of the Special
Servicer, on behalf of the Trust, with respect to a Mortgaged Property located
in the Commonwealth of Puerto Rico shall be equal to the aggregate of all
amounts then due and owing under the related Mortgage Loan. If and when the
Special Servicer deems it necessary in accordance with the Servicing Standard
for purposes of establishing the fair market value of any Mortgaged Property
securing a defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, the Special Servicer is authorized to have an
Appraisal completed with respect to such property (the cost of which appraisal
shall be covered by, and be reimbursable as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no Mortgaged
Property shall be acquired by the Special Servicer on behalf of the Trust under
such circumstances, in such manner or pursuant to such terms as would (i) cause
such Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (unless the portion of such REO
Property that is not treated as "foreclosure property" and that is held by REMIC
I or the related Loan REMIC, as applicable, at any given time constitutes not
more than a de minimis amount of the assets of REMIC I or such Loan REMIC within
the meaning of Treasury regulation Section 1.860D-1(b)(3)(i) and (ii)), or (ii)
except as permitted by Section 3.17(a), subject the Trust to the imposition of
any federal income taxes under the Code. In addition, the Special Servicer shall
not acquire any personal property on behalf of the Trust pursuant to this
Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not result in an Adverse REMIC Event with respect to
any REMIC Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer (to the extent it is allowed to do so herein) nor
the Special Servicer shall, on behalf of the Trust, obtain title to a Mortgaged
Property by foreclosure, deed in lieu of foreclosure or otherwise, or take any
other action with respect to any Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders, could, in the
reasonable, good faith judgment of the Special Servicer, exercised in accordance
with the Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless:
(i) the Special Servicer has previously determined in accordance with
the Servicing Standard, based on a Phase I Environmental Assessment (and
any additional environmental testing that the Special Servicer deems
necessary and prudent) of such
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Mortgaged Property conducted by an Independent Person who regularly
conducts Phase I Environmental Assessments and performed during the
12-month period preceding any such acquisition of title or other action,
that the Mortgaged Property is in compliance with applicable environmental
laws and regulations and there are no circumstances or conditions present
at the Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any applicable
environmental laws and regulations; or
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, and taking into account the coverage provided under
the related Environmental Insurance Policy, that it would maximize the
recovery to the Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Mortgage Rate) to acquire
title to or possession of the Mortgaged Property and to take such remedial,
corrective and/or other further actions as are necessary to bring the
Mortgaged Property into compliance with applicable environmental laws and
regulations and to appropriately address any of the circumstances and
conditions referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by clause
(i) or clause (ii) of the preceding paragraph shall be evidenced by an Officer's
Certificate to such effect delivered to the Trustee, the Master Servicer and the
Controlling Class Representative, specifying all of the bases for such
determination, such Officer's Certificate to be accompanied by all related
environmental reports. The cost of such Phase I Environmental Assessment and any
such additional environmental testing shall be advanced by the Master Servicer
at the direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any remedial, corrective or other further action
contemplated by clause (ii) of the preceding paragraph shall be payable out of
the Collection Account pursuant to Section 3.05.
(d) If neither of the conditions set forth in clause (i) and clause
(ii) of the first sentence of Section 3.09(c) has been satisfied with respect to
any Mortgaged Property securing a defaulted Mortgage Loan, then (subject to
Section 3.24) the Special Servicer shall take such action as is in accordance
with the Servicing Standard (other than proceeding against the Mortgaged
Property) and, at such time as it deems appropriate, may, on behalf of the
Trust, release all or a portion of such Mortgaged Property from the lien of the
related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master
Servicer and the Controlling Class Representative monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property as
to which neither of the conditions set forth in clauses (i) and (ii) of the
first sentence of Section 3.09(c) has been satisfied, in each case until the
earliest to occur of satisfaction of either of such conditions, release of the
lien of the related Mortgage on such Mortgaged Property and the related Mortgage
Loan's becoming a Corrected Mortgaged Loan.
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(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The Master Servicer shall prepare and timely file information
returns with respect to the receipt of mortgage interest received in a trade or
business from individuals, reports of foreclosures and abandonments of any
Mortgaged Property and information returns relating to cancellation of
indebtedness income with respect to any Mortgaged Property required by Sections
6050H, 6050J and 6050P of the Code and shall deliver to the Tax Administrator an
Officer's Certificate stating that such reports have been filed. Such
information returns and reports shall be in form and substance sufficient to
meet the reporting requirements imposed by Sections 6050H, 6050J and 6050P of
the Code. The Special Servicer shall provide to the Master Servicer all
information in the Special Servicer's possession to be included in such reports
and information returns, in each case within thirty (30) days following, and in
any event not later than January 15 of the calendar year immediately following
the calendar year in which occurs, the event giving rise to the obligation to
file such report and information return under the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee, the Certificate Administrator, the Master Servicer
and the Controlling Class Representative. The Special Servicer shall maintain
accurate records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee, Certificate Administrator and the Master Servicer no later than
the third Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly so
notify the Trustee and the applicable Custodian appointed on its behalf and
request delivery to it or its designee of the related Mortgage File (such notice
and request to be effected by delivering to the Trustee or the applicable
Custodian appointed on its behalf a Request for Release in the form of Exhibit
D-1 attached hereto, which Request for Release shall be accompanied by the form
of any release or discharge to be executed by the Trustee or the applicable
Custodian appointed on its behalf and shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Collection Account pursuant to Section
3.04(a) have been or will be so deposited). Upon receipt of such Request for
Release, the Trustee or the applicable Custodian appointed on its behalf shall
promptly release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or its designee and shall deliver to the
Master Servicer or its designee such accompanying release or discharge, duly
executed. Customary expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall not be chargeable to the Collection
Account or the Distribution Account.
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(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer and receipt from the Master Servicer of a Request
for Release in the form of Exhibit D-1 attached hereto signed by a Servicing
Officer thereof, or upon request of the Special Servicer and receipt from the
Special Servicer of a Request for Release in the form of Exhibit D-2 attached
hereto, the Trustee or the applicable Custodian appointed on its behalf shall
release, or cause any related Custodian to release, such Mortgage File (or
portion thereof) to the Master Servicer or the Special Servicer, as the case may
be, or its designee. Upon return of such Mortgage File (or portion thereof) to
the Trustee or the related Custodian, or upon the Special Servicer's delivery to
the Trustee and the Certificate Administrator of an Officer's Certificate
stating that (i) such Mortgage Loan was liquidated and all amounts received or
to be received in connection with such liquidation that are required to be
deposited into the Collection Account pursuant to Section 3.04(a) have been or
will be so deposited or (ii) such Mortgage Loan has become an REO Property, a
copy of the Request for Release shall be returned by the Trustee or the
applicable Custodian appointed on its behalf to the Master Servicer or the
Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Borrower on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity or to defend any legal action or counterclaim filed against the Trust,
the Master Servicer or the Special Servicer; provided that the Trustee may
alternatively execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, a limited power of attorney issued in
favor of the Special Servicer and empowering the Special Servicer to execute and
deliver any or all of such pleadings or documents on behalf of the Trustee
(however, the Trustee shall not be liable for any misuse of such power of
attorney by the Special Servicer). Together with such pleadings or documents (or
such power of attorney empowering the Special Servicer to execute the same on
behalf of the Trustee), the Special Servicer shall deliver to the Trustee an
Officer's Certificate requesting that such pleadings or documents (or such power
of attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
and any Fiscal Agent regarding Back-up Servicing
Advances.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive monthly the Master Servicing Fee with respect to
each Mortgage Loan (including
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each Specially Serviced Mortgage Loan) and each REO Mortgage Loan. As to each
Mortgage Loan and REO Mortgage Loan, for each calendar month (commencing with
December 2000) or any applicable portion thereof, the Master Servicing Fee shall
accrue at the related Master Servicing Fee Rate on the same principal amount and
for the same number of days as interest accrues or is deemed to accrue during
such calendar month (or portion thereof) on such Mortgage Loan or REO Mortgage
Loan, as the case may be. As to each Mortgage Loan and REO Mortgage Loan, the
Master Servicing Fee shall be computed on the same Interest Accrual Basis as is
applicable to the accrual or deemed accrual of interest on such Mortgage Loan or
REO Mortgage Loan, as the case may be. The Master Servicing Fee with respect to
any Mortgage Loan or REO Mortgage Loan shall cease to accrue if a Liquidation
Event occurs in respect thereof. Master Servicing Fees earned with respect to
any Mortgage Loan or REO Mortgage Loan shall be payable monthly from payments of
interest on such Mortgage Loan or REO Revenues allocable as interest on such REO
Mortgage Loan, as the case may be. The Master Servicer shall be entitled to
recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO
Mortgage Loan out of the portion of any related Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds allocable as interest on such Mortgage Loan or
REO Mortgage Loan, as the case may be.
Midland and any holder of the Excess Servicing Fee Right shall be
entitled, at any time, at its own expense, to transfer, sell, pledge or
otherwise assign the Excess Servicing Fee Right in whole (but not in part) to
any Qualified Institutional Buyer or Institutional Accredited Investor (other
than a Plan), provided that no such transfer, sale, pledge or other assignment
shall be made unless (i) that transfer, sale, pledge or other assignment is
exempt from the registration and/or qualification requirements of the Securities
Act and any applicable state securities laws and is otherwise made in accordance
with the Securities Act and such state securities laws, (ii) the prospective
transferor shall have delivered to the Depositor a certificate substantially in
the form attached as Exhibit F-3A hereto, and (iii) the prospective transferee
shall have delivered to Midland and the Depositor a certificate substantially in
the form attached as Exhibit F-3B hereto. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Excess
Servicing Fee Right under the Securities Act or any other securities law or to
take any action not otherwise required under this Agreement to permit the
transfer, sale, pledge or assignment of the Excess Servicing Fee Right without
registration or qualification. Midland, and each holder of the Excess Servicing
Fee Right desiring to effect a transfer, sale, pledge or other assignment of the
Excess Servicing Fee Right shall, and Midland hereby agrees, and each such
holder of the Excess Servicing Fee Right by its acceptance of the Excess
Servicing Fee Right shall be deemed to have agreed, in connection with any
transfer of the Excess Servicing Fee Right effected by such Person, to indemnify
the Depositor, the Underwriters, the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the Certificate Administrator and the Tax
Administrator against any liability that may result if such transfer is not
exempt from registration and/or qualification under the Securities Act or other
applicable securities laws and any applicable state securities laws or is not
made in accordance with such federal and state laws or in accordance with the
foregoing provisions of this paragraph. By its acceptance of the Excess
Servicing Fee Right, the holder thereof shall be deemed to have agreed (i) to
keep all information relating to the Trust and the Trust Fund and made available
to it by the Master Servicer confidential (except as permitted pursuant to
clause (iii) below or, in the case of the Master Servicer, as contemplated
hereby in the performance of its duties and obligations hereunder), (ii) not to
use or disclose such information in any manner that could result in a violation
of any provision of the Securities Act or other applicable securities laws or
that would require registration of the Excess Servicing Fee Right or any
Certificate pursuant to the Securities
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Act, and (iii) not to disclose such information, and to cause its officers,
directors, partners, employees, agents or representatives not to disclose such
information, in any manner whatsoever, in whole or in part, to any other Person
other than such holder's auditors, legal counsel and regulators, except to the
extent such disclosure is required by law, court order or other legal
requirement or to the extent such information is of public knowledge at the time
of disclosure by such holder or has become generally available to the public
other than as a result of disclosure by such holder; provided, however, that
such holder may provide all or any part of such information to any other Person
who is contemplating an acquisition of the Excess Servicing Fee Right if, and
only if, such Person (x) confirms in writing such prospective acquisition and
(y) agrees in writing to keep such information confidential, not to use or
disclose such information in any manner that could result in a violation of any
provision of the Securities Act or other applicable securities laws or that
would require registration of the Excess Servicing Fee Right or any Certificates
pursuant to the Securities Act and not to disclose such information, and to
cause its officers, directors, partners, employees, agents or representatives
not to disclose such information, in any manner whatsoever, in whole or in part,
to any other Person other than such Persons' auditors, legal counsel and
regulators. From time to time following any transfer, sale, pledge or assignment
of the Excess Servicing Fee Right, the Person then acting as Master Servicer
shall pay, out of each amount paid to the Master Servicer as Master Servicing
Fees, the Excess Servicing Fees to the holder of the Excess Servicing Fee Right
within one Business Day following the payment of such Master Servicing Fees to
the Master Servicer, in each case in accordance with payment instructions
provided by such holder in writing to the Master Servicer. The holder of the
Excess Servicing Fee Right shall not have any rights under this Agreement except
as set forth in the preceding sentences of this paragraph.
Subject to the Master Servicer's right to employ Sub-Servicers, the
right to receive the Master Servicing Fee may not be transferred in whole or in
part except pursuant to the immediately preceding paragraph or in connection
with the transfer of all of the Master Servicer's responsibilities and
obligations under this Agreement.
(b) The Master Servicer shall be entitled to receive the following
items as additional servicing compensation (the following items, collectively,
"Additional Master Servicing Compensation"):
(i) that portion of any and all Net Default Interest collected with
respect to the Mortgage Pool during any Collection Period that, in each
case, accrued on the related Mortgage Loan when it was a Performing
Mortgage Loan;
(ii) 50% of any and all assumption application fees and Net Assumption
Fees collected with respect to a Performing Mortgage Loan identified on
Exhibit B-1H;
(iii) 100% of any and all earnout fees, late payment charges, charges
for beneficiary statements or demands and processing fees collected with
respect to a Performing Mortgage Loan;
(iv) 100% of any and all amounts collected with respect to the Mortgage
Loans for checks returned for insufficient funds;
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(v) any Prepayment Interest Excesses collected with respect to the
Mortgage Loans; and
(vi) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period and,
further, in the case of a Servicing Account or Reserve Account, only to the
extent such interest or other income is not required to be paid to any
Borrower under applicable law or under the related Mortgage); and
To the extent that amounts described in clauses (i) through (v),
inclusive, of the preceding paragraph are collected by the Special Servicer, the
Special Servicer shall promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive monthly the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Mortgage Loan. As to each
Specially Serviced Mortgage Loan and REO Mortgage Loan, for any particular
calendar month or applicable portion thereof, the Special Servicing Fee shall
accrue at the Special Servicing Fee Rate on the same principal amount and for
the same number of days as interest accrues or is deemed to accrue from time to
time during such calendar month (or portion thereof) on such Specially Serviced
Mortgage Loan or such REO Mortgage Loan, as the case may be. As to each
Specially Serviced Mortgage Loan or REO Mortgage Loan, the Special Servicing Fee
shall be computed on the same Interest Accrual Basis as is applicable to the
accrual or deemed accrual of interest on such Specially Serviced Mortgage Loan
or REO Mortgage Loan, as the case may be. The Special Servicing Fee with respect
to any Specially Serviced Mortgage Loan or REO Mortgage Loan shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or, in the
case of a Specially Serviced Mortgage Loan, as of the date it becomes a
Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be
payable monthly out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout Fee
shall be payable out of, and shall be calculated by application of the Workout
Fee Rate to, each payment of interest (other than Post-ARD Additional Interest
and Default Interest) and principal received from the related Borrower on such
Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout
Fee with respect to any Corrected Mortgage Loan will cease to be payable if a
Servicing Transfer Event occurs with respect thereto or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee would become
payable if and when such Mortgage Loan again became a Corrected Mortgage Loan.
If the Special Servicer is terminated (other than for cause), including pursuant
to Section 6.06, or resigns in accordance with Section 6.04, it shall retain the
right to receive any and all Workout Fees payable in respect of Mortgage Loans
that became Corrected Mortgage Loans during the period that it acted as Special
Servicer and that were still Corrected Mortgage Loans at the time of such
termination or resignation (and the successor Special Servicer shall not be
entitled to any portion of such Workout Fees), in each case until the Workout
Fee for any such loan ceases to be payable in accordance with the preceding
sentence.
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As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to which it receives
any full, partial or discounted payoff from the related Borrower or any
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (other than in
connection with the purchase of any such Specially Serviced Mortgage Loan or REO
Property by the Master Servicer, the Special Servicer or a Controlling Class
Certificateholder pursuant to Section 3.18 or Section 9.01, or the repurchase of
any Mortgage Loan by or on behalf of the related Mortgage Loan Seller pursuant
to or as contemplated by the related Mortgage Loan Purchase Agreement, or the
acquisition thereof by the Sole Certificateholder in exchange for all the
Certificates pursuant to Section 9.01). As to each such Specially Serviced
Mortgage Loan or REO Property, the Liquidation Fee shall be payable out of, and
shall be calculated by application of the applicable Liquidation Fee Rate to,
any such full, partial or discounted payoff, Insurance Proceeds, Condemnation
Proceeds and/or Liquidation Proceeds received or collected in respect thereof
(other than any portion of such payment or proceeds that represents Post-ARD
Additional Interest, Default Interest or a Prepayment Premium). The Liquidation
Fee with respect to any such Specially Serviced Mortgage Loan will not be
payable if such Mortgage Loan becomes a Corrected Mortgage Loan. Notwithstanding
anything herein to the contrary, no Liquidation Fee will be payable in
connection with the receipt of, or out of, Liquidation Proceeds collected as a
result of the purchase or other acquisition of any Specially Serviced Mortgage
Loan or REO Property described in the parenthetical to the first sentence of
this paragraph.
The Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) The Special Servicer shall be entitled to receive the following
items as additional special servicing compensation (the following items,
collectively, the "Additional Special Servicing Compensation"):
(i) that portion of any Net Default Interest collected with respect to
the Mortgage Pool during any Collection Period that, in each case, accrued
with respect to the related Mortgage loan while it was a Specially Serviced
Mortgage Loan or that accrued with respect to a REO Mortgage Loan;
(ii) 100% (or, in the case of Performing Mortgage Loans identified on
Exhibit B-1H, 50%) of any and all assumption application fees and Net
Assumption Fees collected with respect to the Mortgage Loans;
(iii) 100% of any and all modification fees and extension fees
collected with respect to the Mortgage Loans;
(iv) 100% of any and all earnout fees, charges for beneficiary
statements or demands, and late payment charges collected with respect to
Specially Serviced Mortgage Loans and REO Mortgage Loans; and
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(v) interest or other income earned on deposits in the REO Account, if
established, in accordance with Section 3.06(b) (but only to the extent of
the Net Investment Earnings, if any, with respect to the REO Account for
each Collection Period).
To the extent that amounts described in clauses (i) through (iv),
inclusive, of the preceding paragraph are collected by the Master Servicer, the
Master Servicer shall promptly pay such amounts to the Special Servicer and
shall not be required to deposit such amounts in the Collection Account pursuant
to Section 3.04(a).
(e) The Master Servicer and the Special Servicer shall each be required
(subject to Section 3.11(h) below) to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts due and owing to any of Sub-Servicers
retained by it (including, except as provided in Section 3.22, any termination
fees) and the premiums for any blanket policy or the standby fee or similar
premium, if any, for any master force place policy obtained by it insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not Servicing Advances or expenses payable directly out of the
Collection Account pursuant to Section 3.11(i) or otherwise, the Servicing
Accounts, the Reserve Accounts or the REO Account, and neither the Master
Servicer nor the Special Servicer shall be entitled to reimbursement for any
such expense incurred by it except as expressly provided in this Agreement. If
the Master Servicer is required to make any Servicing Advance hereunder at the
discretion of the Special Servicer in accordance with Section 3.19 or otherwise,
the Special Servicer shall promptly provide the Master Servicer with such
documentation regarding the subject Servicing Advance as the Master Servicer may
reasonably request.
(f) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within ten days after
such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure to, as applicable, the
Master Servicer or the Special Servicer. If such Advance is not made by the
Master Servicer or the Special Servicer within three Business Days after such
notice, then (subject to Section 3.11(h) below) the Trustee or a Fiscal Agent
appointed thereby shall make such Advance. If any Fiscal Agent makes any such
Servicing Advance, the Trustee shall be deemed not to be in default under this
Agreement for failing to do so.
(g) The Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby (with its own funds), for so long as such Servicing Advance
is outstanding. Such interest with respect to any Servicing Advance shall be
payable: (i) first, out of any and all Default Interest collected with respect
to the entire Mortgage Pool subsequent to the accrual of such interest up to and
including the date on which such Servicing Advance is reimbursed; and (ii) then,
after such Advance is reimbursed, but only if and to the extent that such
Default Interest described in the immediately preceding clause (i) is
insufficient to cover such Advance Interest, out of general collections on the
Mortgage Loans and REO Properties on deposit in the Collection Account. The
Master Servicer shall reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as appropriate, for any Servicing Advance made by any such Person
as soon as practicable after funds available for such purpose are deposited in
the Collection Account.
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(h) Notwithstanding anything to the contrary set forth herein, none of
the Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent shall
be required to make any Servicing Advance that it determines in its reasonable
judgment would constitute a Nonrecoverable Servicing Advance. The determination
by any Person with an obligation hereunder to make Servicing Advances that it
has made a Nonrecoverable Servicing Advance or that any proposed Servicing
Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be
made by such Person in its reasonable, judgment and shall be evidenced by an
Officer's Certificate delivered promptly to the Depositor, the Certificate
Administrator and the Trustee (unless it is the Person making such
determination), which shall provide a copy thereof to the Controlling Class
Representative, setting forth the basis for such determination, accompanied by a
copy of an Appraisal (if and when available) of the related Mortgaged Property
or REO Property performed within the 12 months preceding such determination, and
further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing, the Trustee and
any Fiscal Agent shall be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular Servicing Advance, and the Master Servicer
and the Special Servicer shall each be entitled to conclusively rely on any
determination of nonrecoverability that may have been made by the other such
party with respect to a particular Servicing Advance. A copy of any such
Officer's Certificate (and accompanying information) of the Master Servicer
shall also be delivered promptly to the Special Servicer, a copy of any such
Officer's Certificate (and accompanying information) of the Special Servicer
shall also be promptly delivered to the Master Servicer, and a copy of any such
Officer's Certificates (and accompanying information) of the Trustee or the
Fiscal Agent shall also be promptly delivered to the Master Servicer, the
Certificate Administrator and the Special Servicer.
(i) Notwithstanding anything to the contrary set forth herein, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved) pay directly out of the
Collection Account any servicing expense that, if paid by the Master Servicer or
the Special Servicer, would constitute a Nonrecoverable Servicing Advance;
provided that the Master Servicer (or the Special Servicer, if a Specially
Serviced Mortgage Loan or an REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment is in the best
interests of the Certificateholders (as a collective whole), as evidenced by an
Officer's Certificates delivered promptly to the Depositor and the Trustee,
which shall provide a copy thereof to the Controlling Class Representative,
setting forth the basis for such determination and accompanied by any
information that such Person may have obtained that supports such determination.
A copy of any such Officer's Certificate (and accompanying information) of the
Master Servicer shall also be delivered promptly to the Special Servicer, and a
copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer.
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Mortgage Loan becomes a
Specially Serviced Mortgage Loan; provided that the
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Special Servicer shall be entitled to reimbursement of the reasonable
out-of-pocket expenses incurred by it in connection therewith as provided for in
Section 3.05(a). Beginning in 2001, the Master Servicer (or, in the case of an
REO Property or a Mortgaged Property that secures a Specially Serviced Mortgage
Loan, the Special Servicer) shall at its expense (except as provided in the
prior sentence) perform or cause to be performed an inspection of each Mortgaged
Property (i) at least once every two years, in the case of each Mortgage Loan
with an unpaid principal balance under $2,000,000, and (ii) at least once every
calendar year, in the case of all other Mortgage Loans, in any event if the
Special Servicer has not already done so during that period pursuant to the
preceding sentence. The Master Servicer and the Special Servicer shall each
prepare a written report of each such inspection performed by it or on its
behalf that sets forth in detail the condition of the Mortgaged Property and
that specifies the occurrence or existence of: (i) any sale, transfer or
abandonment of the Mortgaged Property of which the Master Servicer or Special
Servicer, as applicable, is aware, (ii) any change in the condition, occupancy
or value of the Mortgaged Property that the Master Servicer or the Special
Servicer, as applicable, in accordance with the Servicing Standard, considers
material, or (iii) any waste committed on the Mortgaged Property that the Master
Servicer or the Special Servicer, as the case may be, in accordance with the
Servicing Standard, considers material. The Master Servicer and the Special
Servicer shall each deliver to each other and, upon request, to the Trustee and
the Certificate Administrator a copy (or image in suitable electronic media) of
each such written report prepared by it within 60 days of completion of the
related inspection.
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan and any REO Property, and the Master Servicer, in the case of each
Performing Mortgage Loan, shall make reasonable efforts to collect promptly
(from each related Borrower in the case of a Mortgage Loan) annual, quarterly,
monthly and other periodic operating statements and related rent rolls of the
related Mortgaged Property or REO Property (and, in the case of a Mortgage Loan,
annual and quarterly financial statements of the related Borrower), whether or
not delivery of such items is required pursuant to the terms of the related
Mortgage (which efforts shall include at least three phone calls, followed by
confirming correspondence, requesting such delivery). The Special Servicer, in
the case of the Specially Serviced Mortgage Loans and REO Mortgage Loans, and
the Master Servicer, in the case of all other Mortgage Loans, shall promptly
review and analyze, and deliver to each other and, upon request, to the Trustee
and the Certificate Administrator copies of, all such items as may be collected
pursuant to this Agreement.
Upon the discovery by the Master Servicer or the Special Servicer, of
any non-monetary default pursuant to the related Mortgage Loan documents
resulting from a failure by the related Borrower to timely deliver to the Master
Servicer or Special Servicer operating statements and rent rolls as provided
above, the Master Servicer and Special Servicer shall (as applicable) notify and
confirm to each other the nature of such default, identify the Mortgage Loan and
provide the Mortgage Loan identification number. During the continuance of such
a default, the Master Servicer shall determine whether or not to consent to the
release or cause the release of any funds from a related Servicing Account or
Reserve Account (except to pay current or past-due taxes, assessments, ground
rents and insurance premiums) to the Borrower or another Person, and shall (as
applicable) so inform the Borrower or the Special Servicer (who shall inform the
Borrower).
Within 60 days after receipt by the Master Servicer or 45 days after
receipt by the Special Servicer of any annual operating statements with respect
to any Mortgaged Property or
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REO Property, as applicable, each of the Master Servicer and the Special
Servicer shall prepare or update (and, in the case of the Special Servicer,
forward within such 45-day period to the Master Servicer the related data fields
in an electronic format reasonably acceptable to the recipient) an NOI
Adjustment Worksheet for such Mortgaged Property or REO Property (with the
related operating statements and rent rolls attached thereto as an exhibit).
Within 60 days after receipt by the Master Servicer, as to Performing
Mortgage Loans, and within 45 days after receipt by the Special Servicer, as to
Specially Serviced Mortgage Loans and REO Properties, of any annual, quarterly,
monthly or other periodic operating statements or related rent rolls with
respect to any Mortgaged Property or REO Property, the Master Servicer or
Special Servicer, as applicable, shall, based upon such operating statements and
rent rolls, prepare (or, if previously prepared, update) (and, in the case of
the Special Servicer, forward to the Master Servicer) the written analysis of
operations (the "Operating Statement Analysis Report") for that property. Each
such Operating Statement Analysis Report shall be substantially in the form of,
and containing the information called for in, the downloadable form of the
"Operating Statement Analysis Report" available as of the Closing Date on the
CMSA Website or in such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Operating Statement Analysis Report" available as
of the Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer.
As and when requested by the Master Servicer, the Special Servicer
shall remit each Operating Statement Analysis Report prepared by it or related
data fields, together with the underlying operating statements and rent rolls,
to the Master Servicer in a format reasonably acceptable to the Master Servicer.
All Operating Statement Analysis Reports and NOI Adjustment Worksheets
shall be maintained by the Master Servicer with respect to each Mortgaged
Property and REO Property, and the Master Servicer shall, upon request, forward
copies thereof (which may be provided in electronic format) to the Certificate
Administrator, together with the related operating statements and, upon the
Certificate Administrator's request, the rent rolls. The Certificate
Administrator shall, upon request and to the extent such items have been
delivered to the Certificate Administrator by the Master Servicer, deliver to
the Trustee, the related Mortgage Loan Seller, the Special Servicer, the
Controlling Class Representative, any Certificateholder or, to the extent the
Certificate Administrator has in accordance with Section 5.06(b) confirmed the
Ownership Interest in the Certificates held thereby, any Certificate Owner, a
copy of each such Operating Statement Analysis Report (or update thereof), each
such NOI Adjustment Worksheet and the related operating statement and rent
rolls.
If, with respect to any Mortgage Loan (other than a Specially Serviced
Mortgage Loan), the Special Servicer has any questions for the related Borrower
based upon the information received by the Special Servicer pursuant to Section
3.12(a) or this Section 3.12(b), the Master Servicer shall, in this regard and
without otherwise changing or modifying its duties hereunder, reasonably
cooperate with the Special Servicer in assisting the Special Servicer to contact
and solicit information from such Borrower.
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(c) Not later than 12:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer (and, upon
request, the Controlling Class Representative) the following reports (or data
files relating to reports of the Master Servicer) with respect to the Specially
Serviced Mortgage Loans and any REO Properties, providing the required
information as of such Determination Date: (i) a Property File; (ii) a Loan
Periodic Update File; and (iii) a Financial File. At or before 12:00 p.m. (New
York City time) on the first Business Day following each Determination Date, the
Special Servicer shall prepare and deliver or cause to be delivered to the
Master Servicer the following reports or related data fields reflected in the
reports reasonably requested with respect to the Specially Serviced Mortgage
Loans and any REO Properties, providing the information required of the Special
Servicer in an electronic format reasonably acceptable to the Master Servicer as
of such Determination Date: (i) a Delinquent Loan Status Report; (ii) a
Comparative Financial Status Report; (iii) an Historical Liquidation Report;
(iv) an Historical Loan Modification Report; and (v) an REO Status Report.
(d) No later than 2:00 p.m. (New York City time), on the second
Business Day after each Determination Date commencing in March 2001, but in no
event later than 10:00 a.m., two Business Days prior to the Distribution Date,
the Master Servicer shall prepare (if and to the extent necessary) and deliver
or cause to be delivered to the Certificate Administrator, in electronic format
reasonably acceptable to the Certificate Administrator, each of the files and
reports comprising the CMSA Investor Reporting Package (excluding any Collateral
Summary and Bond Level File), in each case providing the most recent information
as of the related Determination Date. The Loan Periodic Update File, together
with any written information supplemental thereto that is contemporaneously
delivered by the Master Servicer to the Certificate Administrator, shall include
such information with respect to the Mortgage Loans that is required by the
Certificate Administrator for purposes of making the calculations and preparing
the reports for which the Certificate Administrator is responsible pursuant to
Section 4.01, Section 4.02, Section 4.05 or any other section of this Agreement,
as set forth in written specifications or guidelines issued by the Certificate
Administrator from time to time and reasonably acceptable to the Master
Servicer. Such supplemental information may be delivered by the Master Servicer
to the Certificate Administrator by telecopy or in such electronic or other form
as may be reasonably acceptable to the Certificate Administrator and the Master
Servicer. The Special Servicer shall from time to time (and, in any event, as
may be reasonably required by the Master Servicer) provide the Master Servicer
with such information in its possession regarding the Specially Serviced
Mortgage Loans and REO Properties as may be necessary for the Master Servicer to
prepare each report and any supplemental information to be provided by the
Master Servicer to the Certificate Administrator.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Certificate Administrator the reports set forth in
Section 3.12(d), in an electronic format reasonably acceptable to the Special
Servicer, the Master Servicer and the Certificate Administrator. The Master
Servicer may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer pursuant to Section 3.12(b) and Section
3.12(c). The Certificate Administrator may, absent manifest error, conclusively
rely on the reports to be provided by the Master Servicer pursuant to Section
3.12(d). In the case of information or reports to be furnished by the Master
Servicer to the Certificate Administrator pursuant to Section 3.12(d), to the
extent that such information or reports are, in turn, based on information or
reports to be provided by the Special Servicer pursuant to
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Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to be
prepared and delivered by the Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c), the Master Servicer shall have no obligation to provide such
information or reports to the Certificate Administrator until it has received
the requisite information or reports from the Special Servicer, and the Master
Servicer shall not be in default hereunder due to a delay in providing the
reports required by Section 3.12(d) caused by the Special Servicer's failure to
timely provide any information or report required under Section 3.12(b) or
Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of the Master
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent the Master Servicer or Special Servicer so fails because such
disclosure, in the reasonable belief of the Master Servicer or the Special
Servicer as the case may be, would violate any applicable law or any provision
of a Mortgage Loan document prohibiting disclosure of information with respect
to the Mortgage Loans or Mortgaged Properties or would constitute a waiver of
the attorney-client privilege on behalf of the Trust. The Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law and
the Servicing Standard. The Master Servicer or the Special Servicer may affix to
any information provided by it any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party hereto).
(g) The Depositor shall provide to the Master Servicer the initial data
(as of the Cut-off Date or the most recent earlier date for which such data is
available) necessary to complete the Loan Periodic Update File, the Operating
Statement Analysis Report, the Property File and the Comparative Financial
Report.
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on the Master Servicer's Internet website or the
Certificate Administrator's Internet website, unless this Agreement expressly
specifies a particular method of delivery. Notwithstanding the foregoing, the
Trustee and the Certificate Administrator each may request delivery in paper
format of any statement, report or information required to be delivered to the
Trustee and clause (z) shall not apply to the delivery of any information
required to be delivered to the Trustee or the Certificate Administrator unless
the Trustee or the Certificate Administrator, as the case may be, consents to
such delivery.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to
the Trustee and the Certificate Administrator, with a copy to the Depositor and
each other, on or before March 15 of each year, beginning March 15, 2001, an
Officer's Certificate (the "Annual Performance Certification") stating that (i)
a review of the activities of the Master Servicer or the Special Servicer, as
the case may be, during the preceding calendar year, and of its performance
under this Agreement during such calendar year, has been made under the signing
officer's supervision, (ii) to
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the best of such officer's knowledge, based on such review, the Master Servicer
or the Special Servicer, as the case may be, has in all material respects
fulfilled its obligations under this Agreement throughout the preceding calendar
year, or, if there has been a material default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof, and (iii) the Master Servicer or the Special Servicer, as
the case may be, has received no notice regarding the qualification or status of
any REMIC Pool as a REMIC or the status of either Grantor Trust Pool as a
Grantor Trust or otherwise asserting a tax (other than ad valorem real property
taxes or other similar taxes on REO Property) on the income or assets of any
portion of the Trust Fund from the IRS or from any other governmental agency or
body or, if it has received any such notice, specifying the details thereof;
provided that neither the Master Servicer nor the Special Servicer shall be
required to deliver its Annual Performance Certification until April 15 in any
given year so long as it has received written confirmation from the Depositor or
the Certificate Administrator that a Report on Form 10-K is not required to be
filed in respect of the Trust for the preceding calendar year. The signing
officer shall have no personal liability with respect to the content of any such
statement, and the Master Servicer or the Special Servicer, as the case may be,
shall be deemed to have made such statement and shall assume any liability
resulting therefrom.
The Master Servicer and the Special Servicer will each reasonably
cooperate with the Depositor in conforming any Officer's Certificate delivered
pursuant to this Section 3.13 to requirements imposed by the Commission on the
Depositor in connection with the Commission's issuance of a no-action letter
relating to the Depositor's reporting requirements in respect of the Trust
pursuant to the Exchange Act.
SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 of each year, beginning March 15, 2001, each of
the Master Servicer and the Special Servicer, at its expense, shall cause a firm
of independent public accountants (which may also render other services to the
Master Servicer or Special Servicer, as applicable) and that is a member of the
American Institute of Certified Public Accountants to furnish a statement (the
"Annual Accountant's Report") to the Depositor, the Controlling Class
Representative, the Certificate Administrator and the Trustee to the effect that
(i) it has obtained a letter of representation regarding certain matters from
the management of the Master Servicer or the Special Servicer, as the case may
be, which includes an assertion that the Master Servicer or the Special
Servicer, as the case may be, has complied with certain minimum mortgage loan
servicing standards (to the extent applicable to commercial and multifamily
mortgage loans), identified in the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America,
with respect to the servicing of commercial and multifamily mortgage loans
during the most recently completed calendar year, and (ii) on the basis of an
examination conducted by such firm in accordance with standards set by the
American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications as may be appropriate; provided that neither the Master Servicer
nor the Special Servicer will be required to cause the delivery of its Annual
Accountant's Report until April 15 in any given year so long as it has received
written confirmation from the Depositor or the Certificate Administrator that a
Report on From 10-K is not required to be filed in respect of the Trust for the
preceding calendar year. In rendering its report such firm may rely, as to
matters relating to the direct servicing of commercial and multifamily mortgage
loans by Sub-Servicers,
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upon comparable reports of firms of independent certified public accountants
rendered on the basis of examinations conducted in accordance with the same
standards (rendered within one year of such report) with respect to those
Sub-Servicers.
The Master Servicer and, to the extent applicable, the Special Servicer
will each reasonably cooperate with the Depositor in conforming any reports
delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall provide or
cause to be provided to the other such party, the Depositor, the Trustee, the
Certificate Administrator, the Controlling Class Representative and the Rating
Agencies, and to the OTS, the FDIC, and any other federal or state banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans and
the other assets of the Trust Fund that are within its control which may be
required by this Agreement or by applicable law, except to the extent that (i)
such documentation is subject to a claim of privilege under applicable law that
has been asserted by the Certificateholders and of which the Master Servicer or
the Special Servicer, as applicable, has received written notice or (ii) the
Master Servicer or the Special Servicer is otherwise prohibited from making such
disclosure under applicable law, or may be subject to liability for making such
disclosure in the opinion of the counsel for the Master Servicer or Special
Servicer (which counsel may be a salaried employee of the Master Servicer or
Special Servicer). Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Master Servicer or the Special Servicer, as the case may be, designated
by it. However, the Master Servicer and the Special Servicer may charge for any
copies requested by said Persons. The Master Servicer and the Special Servicer
shall each be permitted to affix a reasonable disclaimer to any information
provided by it pursuant to this Section 3.15.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee or its nominee on behalf of the
Certificateholders. The Special Servicer shall sell any REO Property by the end
of the third calendar year following the year in which the Trust acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code,
unless the Special Servicer either (i) applies, more than 60 days prior to the
expiration of such liquidation period, and is granted an extension of time (an
"REO Extension") by the Internal Revenue Service to sell such REO Property or
(ii) obtains for the Trustee and the Tax Administrator an Opinion of Counsel,
addressed to the Trustee and the Tax Administrator, to the effect that the
holding by the Trust of such REO Property subsequent to the end of the third
calendar year following the year in which such acquisition occurred, will not
result in the imposition of taxes on "prohibited transactions" of any REMIC Pool
as defined in Section 860F of the Code or cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding. If the
Special Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately
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preceding sentence, the Special Servicer shall sell such REO Property within
such extended period as is permitted by such REO Extension or such Opinion of
Counsel, as the case may be. Any reasonable expense incurred by the Special
Servicer in connection with its being granted the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall be
an expense of the Trust payable out of the Collection Account pursuant to
Section 3.05(a). Any REO Extension shall be requested by the Special Servicer no
later than 60 days before the end of the third calendar year following the year
in which the Trust acquired ownership of the related REO Property.
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), to be held on behalf of the Trustee in trust for the benefit of
the Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property. The REO Account shall be an Eligible Account and may
consist of one account for all the REO Properties. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within one (1) Business
Day of receipt, all REO Revenues, Liquidation Proceeds (net of all Liquidation
Expenses paid therefrom) and Insurance Proceeds received in respect of an REO
Property. The Special Servicer is authorized to pay out of related Liquidation
Proceeds any Liquidation Expenses incurred in respect of an REO Property and
outstanding at the time such proceeds are received. Funds in the REO Account may
be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall be entitled to make withdrawals from the REO Account to
pay itself, as additional servicing compensation in accordance with Section
3.11(d), interest and investment income earned in respect of amounts held in the
REO Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the REO Account for any Collection Period).
The Special Servicer shall give notice to the other parties hereto of the
location of the REO Account when first established and of the new location of
the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the REO
Account relating to such REO Property. At or before 1:00 p.m. New York City time
on the Business Day following the end of each Collection Period, the Special
Servicer shall withdraw from the REO Account and deposit into the Collection
Account or deliver to the Master Servicer (which shall deposit such amounts into
the Collection Account) the aggregate of all amounts received in respect of each
REO Property during such Collection Period, net of any withdrawals made out of
such amounts pursuant to the preceding sentence; provided that the Special
Servicer may retain in the REO Account such portion of proceeds and collections
as may be necessary to maintain a reserve of sufficient funds for the proper
operation, management, maintenance and disposition of the related REO Property
(including without limitation the creation of a reasonable reserve for repairs,
replacements and necessary capital improvements and other related expenses),
such reserve not to exceed an amount sufficient to cover such items to be
incurred during the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
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SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Mortgage Loan, the Special Servicer shall review the
operation of such Mortgaged Property and determine the nature of the income that
would be derived from such property if it were acquired by the Trust. If the
Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property" within
the meaning of the REMIC Provisions or would be subject to the tax imposed
on "prohibited transactions" under Section 860F of the Code (either such
tax referred to herein as an "REO Tax"), then such Mortgaged Property may
be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided, that in the reasonable judgment of the Special Servicer, it
is commercially reasonable) acquire such Mortgaged Property as REO Property
and so lease or operate such REO Property; or
(iii) It would not be commercially reasonable to operate and manage
such property as REO Property without the Trust incurring or possibly
incurring an REO Tax on income from such property, then the Special
Servicer shall deliver to the Tax Administrator, in writing, a proposed
plan (the "Proposed Plan") to manage such property as REO Property. Such
plan shall include potential sources of income, and to the extent
reasonably possible, estimates of the amount of income from each such
source. Within a reasonable period of time after receipt of such plan, the
Tax Administrator shall consult with the Special Servicer and shall advise
the Special Servicer of the Trust's federal income tax reporting position
with respect to the various sources of income that the Trust would derive
under the Proposed Plan. In addition, the Tax Administrator shall (to the
maximum extent reasonably possible) advise the Special Servicer of the
estimated amount of taxes that the Trust would be required to pay with
respect to each such source of income from such REO Property. After
receiving the information described in the two preceding sentences from the
Tax Administrator, the Special Servicer shall either (A) implement the
Proposed Plan (after acquiring the respective Mortgaged Property as REO
Property) or (B) manage and operate such property in a manner that would
not result in the imposition of an REO Tax on the income derived from such
property.
Subject to Section 3.16(b), the Special Servicer's decision as to how
each REO Property shall be managed and operated shall be in accordance with the
Servicing Standard. Both the Special Servicer and the Tax Administrator may
consult with counsel knowledgeable in such matters at (to the extent reasonable)
the expense of the Trust in connection with determinations required under this
Section 3.17(a). Neither the Special Servicer nor the Tax Administrator shall be
liable to the Certificateholders, the Trust, the other parties hereto or each
other for errors in
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judgment made in good faith in the reasonable exercise of their discretion or in
reasonable and good faith reliance on the advice of knowledgeable counsel while
performing their respective responsibilities under this Section 3.17(a) or, to
the extent it relates to federal income tax consequences for the Trust, Section
3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale
of a Defaulted Mortgage Loan or REO Property pursuant to the terms and subject
to the conditions of Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as contemplated by Section 3.17(a), result in the receipt by any REMIC
Pool of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or in an Adverse REMIC Event in respect of any such
REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not
enter into any lease, contract or other agreement that causes any REMIC Pool to
receive, and (unless required to do so under any lease, contract or agreement to
which the Special Servicer or the Trust may become a party or successor to a
party due to a foreclosure, deed-in-lieu of foreclosure or other similar
exercise of a creditor's rights or remedies with respect to a Mortgage Loan)
shall not cause or allow any REMIC Pool to receive, any "net income from
foreclosure property" that is subject to taxation under the REMIC Provisions.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are consistent
with the Servicing Standard and, consistent therewith, shall withdraw from the
REO Account, to the extent of amounts on deposit therein with respect to any REO
Property, funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in the preceding sentence
with respect to such REO Property, the Special Servicer shall direct the Master
Servicer to make (and the Master Servicer shall so make) Servicing Advances in
such amounts as are necessary for such purposes unless (as evidenced in the
manner contemplated by Section 3.11(h)) the Special Servicer or the Master
Servicer determines, in its reasonable judgment, that such payment would be a
Nonrecoverable Servicing Advance.
(c) The Special Servicer may (and, except as otherwise permitted by
Section 3.17(a), shall if it would avoid an Adverse REMIC Event) contract with
any Independent Contractor for the operation and management of any REO Property,
provided that:
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(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be expenses
of the Trust) shall be reasonable and customary in consideration of the
nature and locality of the REO Property;
(iii) any such contract shall be consistent with the provisions of
Treasury Regulation Section 1.856-4(b)(5) and, to the extent consistent
therewith, shall be administered to require that the Independent
Contractor, in a timely manner, (A) to the extent of available revenue from
the REO Property, pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including, those listed
in Section 3.17(b) above, and (B) remit all related revenues collected (net
of its fees and such costs and expenses) to the Special Servicer upon
receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the
same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or
purchase of, a Mortgage Loan or REO Property only on the terms and subject to
the conditions set forth in this Section 3.18 or as otherwise expressly provided
in or contemplated by Sections 2.02, 2.03 and 9.01.
(b) If the Special Servicer has determined, in its reasonable judgment,
that any Defaulted Mortgage Loan will become subject to foreclosure proceedings
and that the sale of such Mortgage Loan under the circumstances provided in this
Section 3.18 is in accordance with the Servicing Standard, then the Special
Servicer shall promptly so notify in writing the Certificate Administrator, the
Trustee and the Master Servicer, and the Certificate Administrator shall, within
five Business Days after receipt of such notice, so notify all the Controlling
Class Certificateholders. Any single Controlling Class Certificateholder or
group of Controlling Class Certificateholders may, at its or their option,
within 15 days after receipt of such notice, purchase any Defaulted Mortgage
Loan out of the Trust Fund at a cash price equal to the applicable Purchase
Price; provided that, if more than one Controlling Class Certificateholder or
group of Controlling Class Certificateholders desire to purchase such Defaulted
Mortgage Loan, preference shall be given to the Controlling Class
Certificateholder or group of Controlling Class Certificateholders with the
largest Percentage Interest in the Controlling Class; and provided, further
that, if more than
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one Controlling Class Certificateholder or group of Controlling Class
Certificateholders have the same Percentage Interest in the Controlling Class,
preference shall be given to the Controlling Class Certificateholder or group of
Controlling Class Certificateholders which first notifies the Special Servicer
of its intention to purchase such Defaulted Mortgage Loan. The Purchase Price
for any Defaulted Mortgage Loan purchased under this Section 3.18(b) shall be
deposited into the Collection Account, and the Trustee, upon receipt of an
Officer's Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the Certificateholder(s)
effecting such purchase (or to its or their designee) the related Mortgage File,
and shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as shall be provided to it and are reasonably
necessary to vest in such Certificateholder(s) ownership of such Mortgage Loan
(subject to any rights of a Designated Sub-Servicer to primary service (or to
perform select servicing duties with respect to) such Mortgage Loan). In
connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the Certificateholder(s) effecting such purchase (or
to its or their designee).
(c) If none of the Controlling Class Certificateholders has purchased
any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b)
within 15 days of such Holders' having received notice in respect thereof
pursuant to Section 3.18(b) above, then the Certificate Administrator shall
within five Business Days of the end of such 15-day period send notice to the
Master Servicer and the Special Servicer that such Mortgage Loan was not
purchased by such Certificateholder(s), and either the Special Servicer or the
Master Servicer (in that order of priority) may, at its option, within 15 days
after receipt of such notice, purchase (or designate an Affiliate thereof to
purchase) such Mortgage Loan out of the Trust Fund at a cash price equal to the
Purchase Price. The Purchase Price for any such Mortgage Loan purchased under
this Section 3.18(c) shall be deposited into the Collection Account, and the
Trustee, upon receipt of an Officer's Certificate from the Master Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Master Servicer or the Special Servicer (or the designated
Affiliate thereof), as applicable, the related Mortgage File, and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest in the
Master Servicer or the Special Servicer (or the designated Affiliate thereof),
as applicable, the ownership of such Mortgage Loan (subject to any rights of a
Designated Sub-Servicer to primary service (or to perform select servicing
duties with respect to) such Mortgage Loan). In connection with any such
purchase by the Master Servicer (or any designated Affiliate thereof), the
Special Servicer shall deliver the related Servicing File to the Master Servicer
(or any designated Affiliate thereof). For purposes of the other sections of
this Agreement, any purchase of a Defaulted Mortgage Loan by a designated
Affiliate of the Master Servicer or Special Servicer pursuant to this Section
3.18(c) shall be deemed a purchase of such Defaulted Mortgage Loan by the Master
Servicer or the Special Servicer, as applicable.
(d) Subject to Section 3.24, the Special Servicer may offer to sell any
Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or
Section 3.18(c) above, if and when the Special Servicer determines, consistent
with the Servicing Standard, that such a sale would be in the best economic
interests of the Certificateholders (as a collective whole). Such offer shall be
made in a commercially reasonable manner (which, for purposes hereof, includes
an offer to sell without representation or warranty other than customary
warranties of title and condition, if liability for breach thereof is limited to
recourse against the Trust) for a period of not less than 15 days. Subject to
Section 3.18(h) and Section 3.24, the Special Servicer shall accept the highest
cash
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bid received from any Person that constitutes a fair price for such Mortgage
Loan. In the absence of any bid determined as provided below to be fair, the
Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in
accordance with Section 3.09.
The Special Servicer shall use its best efforts to solicit bids for
each REO Property in such manner as will be reasonably likely to realize a fair
price within the time period provided for by Section 3.16(a). Subject to Section
3.18(h) and Section 3.24, the Special Servicer shall accept the first (and, if
multiple bids are received by a specified bid date, the highest) cash bid
received from any Person that constitutes a fair price (determined pursuant to
Section 3.18(e) below) for such REO Property; provided that, if the Special
Servicer receives more than two bids from Independent third parties, it may also
submit a bid. If the Special Servicer reasonably believes that it will be unable
to realize a fair price (determined pursuant to Section 3.18(e) below) for any
REO Property within the time constraints imposed by Section 3.16(a), the Special
Servicer shall dispose of such REO Property upon such terms and conditions as
the Special Servicer shall deem necessary and desirable to maximize the recovery
thereon under the circumstances.
The Special Servicer shall give the Certificate Administrator, the
Trustee, the Master Servicer and the Controlling Class Representative not less
than five Business Days' prior written notice of its intention to sell any
Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit a bid to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, none of the Trustee, the Certificate Administrator or the Tax
Administrator, in each case in its individual capacity, and none of their
respective Affiliates and agents, may bid for or purchase any Defaulted Mortgage
Loan or REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash bid is
from the Special Servicer or an Affiliate thereof, by the Master Servicer (or,
if the Master Servicer or an Affiliate thereof is also bidding, by the Trustee).
In determining whether any bid received from the Special Servicer or an
Affiliate thereof represents a fair price for any such Mortgage Loan or REO
Property, the Master Servicer or Trustee, as applicable, shall be supplied with
and shall be entitled to rely on the most recent Appraisal in the related
Servicing File conducted in accordance with this Agreement within the preceding
12-month period (or, in the absence of any such Appraisal or if there has been a
material change at the subject property since any such Appraisal, on a new
Appraisal to be obtained by the Special Servicer (the cost of which shall be
covered by, and be reimbursable as, a Servicing Advance)). The appraiser
conducting any such new Appraisal shall be a Qualified Appraiser that is (i)
selected by the Special Servicer if neither the Special Servicer nor any
Affiliate thereof is bidding with respect to a Defaulted Mortgage Loan or REO
Property and (ii) selected by the Master Servicer (or, if the Master Servicer or
an Affiliate thereof is also bidding, by the Trustee) if either the Special
Servicer or any Affiliate thereof is so bidding. Where any Interested Person is
among those bidding with respect to a Defaulted Mortgage Loan or REO Property,
the Special Servicer shall require that all bids be submitted to it (or, if the
Special Servicer or an Affiliate thereof is bidding, shall be submitted by it to
the Master Servicer (or, if the Master Servicer or an Affiliate thereof is also
bidding, to the Trustee)) in writing and be accompanied by a refundable deposit
of cash in an amount equal to 5% of the bid amount. In determining whether any
bid from a Person other than the Special Servicer or an Affiliate thereof
constitutes a fair price for any such Mortgage Loan or
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REO Property, the Special Servicer shall take into account the results of any
Appraisal or updated Appraisal that it or the Master Servicer may have obtained
in accordance with this Agreement within the preceding 12-month period, and any
Qualified Appraiser shall be instructed to take into account, as applicable,
among other factors, the period and amount of any delinquency on the affected
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.16(a).
The Purchase Price for any such Mortgage Loan or REO Property shall in all cases
be deemed a fair price. Notwithstanding the other provisions of this Section
3.18, no cash bid from the Special Servicer or any Affiliate thereof shall
constitute a fair price for any Defaulted Mortgage Loan or REO Property unless
such bid is the highest cash bid received and at least two independent bids (not
including the bid of the Special Servicer or any Affiliate) have been received.
In the event the bid of the Special Servicer or any Affiliate thereof is the
only bid received or is the higher of only two bids received, then additional
bids shall be solicited. If an additional bid or bids, as the case may be, are
received and the original bid of the Special Servicer or any Affiliate thereof
is the highest of all cash bids received or if no additional bids are received,
then the bid of the Special Servicer or such Affiliate shall be accepted,
provided that the Master Servicer or Trustee, as applicable, has otherwise
determined, as provided above in this Section 3.18(e), that such bid constitutes
a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the
Special Servicer shall be unconditional; and, if accepted, the Defaulted
Mortgage Loan or REO Property shall be transferred to the Special Servicer
without recourse, representation or warranty other than customary
representations as to title given in connection with the sale of a mortgage loan
or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special
Servicer shall act on behalf of the Trust in negotiating with independent third
parties and taking any other action necessary or appropriate in connection with
the sale of any Defaulted Mortgage Loan or REO Property, and the collection of
all amounts payable in connection therewith. In connection therewith, the
Special Servicer may charge prospective bidders, and may retain, fees that
approximate the Special Servicer's actual costs in the preparation and delivery
of information pertaining to such sales or evaluating bids without obligation to
deposit such amounts into the Collection Account. Any sale of a Defaulted
Mortgage Loan or any REO Property shall be final and without recourse (except
for warranties of title and condition contemplated by Section 3.18(d)) to the
Trustee or the Trust, and if such sale is consummated in accordance with the
terms of this Agreement, none of the Special Servicer, the Certificate
Administrator or the Trustee shall have any liability to any Certificateholder
with respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be
for cash only.
(h) Notwithstanding any of the foregoing paragraphs of this Section
3.18, but subject to Section 3.24, the Special Servicer shall not be obligated
to accept the highest cash bid if the Special Servicer determines, in accordance
with the Servicing Standard, that rejection of such bid would be in the best
interests of the Certificateholders (as a collective whole), and the Special
Servicer may accept a lower cash bid (from any Person other than itself or an
Affiliate) if it determines, in accordance with the Servicing Standard, that
acceptance of such bid would be in the best interests of the Certificateholders
(as a collective whole) (for example, if the prospective buyer
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making the lower bid is more likely to perform its obligations or the terms
(other than price) offered by the prospective buyer making the lower bid are
more favorable).
SECTION 3.19. Additional Obligations of Master Servicer and the Special
Servicer.
(a) The Master Servicer shall deliver to the Certificate Administrator
for deposit in the Distribution Account on each Master Servicer Remittance Date,
without any right of reimbursement therefor, an amount (a "Compensating Interest
Payment") equal to the lesser of (i) the aggregate amount of Prepayment Interest
Shortfalls incurred in connection with Principal Prepayments received in respect
of the Mortgage Pool during the most recently ended Collection Period, and (ii)
the aggregate of (A) that portion of its Master Servicing Fees for the related
Collection Period that is, in the case of each and every Mortgage Loan and REO
Mortgage Loan for which such Master Servicing Fees are being paid in such
Collection Period, calculated at 0.02% per annum, and (B) all Prepayment
Interest Excesses received by the Master Servicer during the most recently ended
Collection Period.
(b) Once per calendar month, the Special Servicer shall provide the
Master Servicer with a list of Servicing Advances made by the Special Servicer
during the prior month, and the Master Servicer shall be obligated, out of the
Master Servicer's own funds, to reimburse the Special Servicer for such
Servicing Advances (other than Nonrecoverable Servicing Advances), together with
interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten days of the request therefor by
wire transfer of immediately available funds to an account designated by the
Special Servicer; provided that such request shall be accompanied by any
information in the Special Servicer's possession reasonably necessary to make a
nonrecoverability determination. Upon the Master Servicer's reimbursement to the
Special Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(b), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer actually made such
Servicing Advance, and accordingly, the Master Servicer shall be entitled to
reimbursement for such Servicing Advance, together with interest thereon in
accordance with Sections 3.05(a) and 3.11(g), at the same time, in the same
manner and to the same extent as the Master Servicer would otherwise have been
entitled if it had actually made such Servicing Advance at the time the Special
Servicer did.
Notwithstanding anything to the contrary contained in any other Section
of this Agreement, if the Special Servicer is required under this Agreement (but
subject to the following paragraph) to make any Servicing Advance but does not
desire to do so, the Special Servicer may, in its sole discretion, request that
the Master Servicer make such Servicing Advance. Any such request shall be made,
in writing, in a timely manner that does not adversely affect the interests of
any Certificateholder (and, in any event, to the extent reasonably practicable,
at least five Business Days in advance of the date on which the subject
Servicing Advance is to be made) and shall be accompanied by such information
and documentation regarding the subject Servicing Advance as the Master Servicer
may reasonably request; provided, however, that the Special Servicer shall not
be entitled to make such a request (other than for Emergency Advances) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The
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Master Servicer shall have the obligation to make any such Servicing Advance
(other than a Nonrecoverable Servicing Advance) that it is so requested by the
Special Servicer to make, within five Business Days of the Master Servicer's
receipt of such request and such information and documentation regarding the
subject Servicing Advance(s) as the Master Servicer may reasonably request. The
Special Servicer shall cooperate with the Master Servicer's verification
process. If the request is timely and properly made, the Special Servicer shall
be relieved of any obligations with respect to a Servicing Advance that it so
requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Servicing Advance). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with interest thereon in accordance with
Sections 3.05(a) and 3.11(g), at the same time, in the same manner and to the
same extent as the Master Servicer is entitled with respect to any other
Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b), the
Master Servicer shall not be required to reimburse the Special Servicer for, or
to make at the direction of the Special Servicer, any Servicing Advance if the
Master Servicer determines in its reasonable judgment that such Servicing
Advance, although not characterized by the Special Servicer as a Nonrecoverable
Servicing Advance, is in fact a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer in writing of such determination and,
if applicable, such Nonrecoverable Servicing Advance shall be reimbursed to the
Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the occurrence of an Appraisal Trigger Event
with respect to any Mortgage Loan, the Special Servicer shall obtain (or, if
such Mortgage Loan has a Stated Principal Balance of $2,000,000 or less, at its
discretion, conduct) an Appraisal of the related Mortgaged Property, unless an
Appraisal (or an update of an Appraisal) thereof had previously been obtained
(or, if applicable, conducted) within the preceding 12-month period and there
has been no subsequent material change in the circumstances surrounding the
related Mortgaged Property that in the judgment of the Special Servicer would
materially affect the value of the property, and shall deliver a copy of such
Appraisal to the Certificate Administrator, the Master Servicer and the
Controlling Class Representative. If such Appraisal is obtained from a Qualified
Appraiser, the cost thereof shall be covered by, and be reimbursable as, a
Servicing Advance. Promptly following the receipt of, and based upon, such
Appraisal, the Special Servicer shall determine and report to the Master
Servicer and the Certificate Administrator the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal Loan.
For so long as any Mortgage Loan or REO Mortgage Loan remains a
Required Appraisal Loan, the Special Servicer shall, within 30 days of each
anniversary of such loan's having become a Required Appraisal Loan, obtain (or,
if such Required Appraisal Loan has a Stated Principal Balance of $2,000,000 or
less, at its discretion, conduct) an update of the prior Appraisal. If such
update is obtained from a Qualified Appraiser, the cost thereof shall be covered
by, and be reimbursable as, a Servicing Advance. Promptly following the receipt
of, and based upon, such update, the Special Servicer shall redetermine and
report to the Trustee, the Master Servicer and the Certificate Administrator the
then applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Loan.
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At any time that any Appraisal Reduction Amount exists with respect to
any Required Appraisal Loan, the Controlling Class Representative may, at its
own expense, obtain from a Qualified Appraiser and deliver to the Trustee, the
Master Servicer, the Special Servicer and the Certificate Administrator an
Appraisal of the related Mortgaged Property or REO Property, as the case may be.
Upon the written request of the Controlling Class Representative, the Special
Servicer shall recalculate the Appraisal Reduction Amount with respect to such
Required Appraisal Loan based on the Appraisal delivered by the Controlling
Class Representative and notify the Trustee, the Certificate Administrator, the
Master Servicer and the Controlling Class Representative of such recalculated
Appraisal Reduction Amount (if any).
(d) The Master Servicer shall not be required to pay without
reimbursement the fees charged by any Rating Agency for a (i) confirmation as to
the lack of an Adverse Rating Event with respect to any Class of Rated
Certificates or (ii) in connection with any other particular matter, unless the
Master Servicer has failed to use efforts in accordance with the Servicing
Standard to collect such fees from the Borrower.
(e) In connection with each prepayment of principal received hereunder,
the Master Servicer shall calculate any applicable Prepayment Premium payable
under the terms of the related Mortgage Note or loan agreement. Upon written
request of any Certificateholder, the Master Servicer shall disclose to such
Certificateholder its calculation of any such Prepayment Premium.
(f) The Master Servicer shall not permit defeasance of any Mortgage
Loan (x) before the earliest date on which defeasance is permitted under the
terms of such Mortgage Loan, or (y) subject to the terms of such Mortgage Loan,
unless (i) the defeasance collateral consists of government securities (as
defined in Section 2(a)(16) of the Investment Company Act), (ii) the Master
Servicer has determined that the defeasance will not result in an Adverse REMIC
Event in respect of any REMIC Pool, (iii) the Master Servicer has notified the
Rating Agencies, (iv) the Master Servicer has confirmed that such defeasance
will not result in an Adverse Rating Event with respect to any Class of Rated
Certificates (provided that the requirement to obtain such confirmation will be
a precondition to the defeasance only if the Master Servicer is able under the
related Mortgage Loan documents and applicable law to prevent the defeasance if
such confirmation is not obtained and either the subject Mortgage Loan has a
Stated Principal Balance in excess of the lesser of $5,000,000 and 1.0% of the
then aggregate Stated Principal Balance of the Mortgage Pool or the Master
Servicer is unable to execute and deliver the certification attached hereto as
Exhibit B-4 in connection with the subject defeasance), and (v) the Master
Servicer has requested and received from the related Borrower (A) an Opinion of
Counsel generally to the effect that the Trustee will have a perfected, first
priority security interest in such defeasance collateral and (B) written
confirmation from a firm of Independent accountants stating that payments made
on such defeasance collateral in accordance with the terms thereof will be
sufficient to pay the subject Mortgage Loan in full on or before its Stated
Maturity Date (or, in the case of an ARD Loan, on or before its Anticipated
Repayment Date) and to timely pay each Monthly Payment scheduled to be due prior
thereto but after the defeasance; provided that, if under the terms of the
related Mortgage Loan documents, the related Borrower delivers cash to purchase
the defeasance collateral rather than the defeasance collateral itself, the
Master Servicer shall purchase the government securities contemplated by the
related Mortgage Loan documents. Subsequent to the second anniversary of the
Startup Day for the REMIC Pool that holds the subject Mortgage Loan, to the
extent that the
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Master Servicer can, in accordance with the related Mortgage Loan documents,
require defeasance of any Mortgage Loan in lieu of accepting a prepayment of
principal thereunder, including a prepayment of principal accompanied by a
Prepayment Premium, the Master Servicer shall, to the extent it is consistent
with the Servicing Standard, require such defeasance, provided that the
conditions set forth in clauses (i) through (v) of the preceding sentence have
been satisfied. Any reasonable out-of-pocket expense incurred by the Master
Servicer pursuant to this Section 3.19(f) shall be paid by the Borrower of the
defeased Mortgage Loan pursuant to the related Mortgage, Mortgage Note or other
pertinent document. The Master Servicer and the Special Servicer each shall,
consistent with the Servicing Standard, enforce the provisions of the Mortgage
Loans it is obligated to service hereunder relating to defeasance and prepayment
restrictions; provided that, if at any time a court with jurisdiction in the
matter shall hold that the related Borrower may obtain a release of the subject
Mortgaged Property but is not obligated to deliver the full amount of the
defeasance collateral contemplated by the related Mortgage Loan documents (or
cash sufficient to purchase such defeasance collateral), then the Master
Servicer shall (i) if consistent with such court holding and the related
Mortgage Loan documents, refuse to allow the defeasance of the Mortgage Loan or
(ii) if the Master Servicer cannot so refuse and if the related Borrower has
delivered cash to purchase the defeasance collateral, the Master Servicer shall
either (A) buy such defeasance collateral or (B) prepay the Mortgage Loan, in
either case, in accordance with the Servicing Standard.
(g) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Borrower under a Ground Lease as listed
on the Mortgage Loan Schedule, promptly (and, in any event, within 45 days)
after the Closing Date) notify the related ground lessor of the transfer of such
Mortgage Loan to the Trust pursuant to this Agreement and inform such ground
lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer.
(h) The Master Servicer shall maintain at its Primary Servicing Office
and shall, upon reasonable advance written notice, make available during normal
business hours for review by the Trustee, the Certificate Administrator, the
Depositor, each Rating Agency, the Controlling Class Representative and, subject
to the succeeding paragraph, any Certificateholder or Certificate Owner, or any
Person identified to the Master Servicer by any Certificateholder or Certificate
Owner, as a prospective transferee of a Certificate or an interest therein,
originals and/or copies of the following items (to the extent such items were
prepared by or delivered to the Master Servicer): (i) the most recent inspection
report prepared by the Master Servicer or the Special Servicer in respect of
each Mortgaged Property pursuant to Section 3.12(a); (ii) the most recent
quarterly and annual operating statement and rent roll of each related Mortgaged
Property and financial statements of the related Borrower collected by the
Master Servicer or the Special Servicer pursuant to Section 3.12(b); (iii) all
files and reports comprising the CMSA Investor Reporting Package prepared by the
Master Servicer or the Special Servicer since the Closing Date pursuant to
Sections 3.12 and 4.02; and (iv) all of the Servicing Files in its possession;
provided that, if the Master Servicer reasonably determines that any item of
information contained in such Servicing Files is of a nature that it should be
conveyed to all Certificateholders at the same time, it shall, as soon as
reasonably possible following its receipt of any such item of information,
disclose such item of information to the Certificate Administrator as part of
the reports to be delivered to the Certificate Administrator by the Master
Servicer pursuant to Section 3.12 and/or Section 4.02, and until the Certificate
Administrator has either disclosed such information to all Certificateholders in
a Distribution Date
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Statement or has properly filed such information with the Commission on behalf
of the Trust under the Exchange Act, the Master Servicer shall be entitled to
withhold such item of information from any Certificateholder or Certificate
Owner or prospective transferee of a Certificate or an interest therein; and
provided, further, that the Master Servicer shall not be required to make
particular items of information contained in the Servicing File for any Mortgage
Loan available to any Person if the disclosure of such particular items of
information is expressly prohibited by applicable law or the provisions of any
related Mortgage Loan documents or if such documentation is subject to claim of
privilege under applicable law that can be asserted by the Master Servicer; and
provided, further, that, except in the case of the Rating Agencies, the Master
Servicer shall be entitled to recover from any Person reviewing the Servicing
Files pursuant to this Section 3.19(h) its reasonable "out-of-pocket" expenses
incurred in connection with making the Servicing Files available to such Person.
Except as set forth in the provisos to the preceding sentence, copies of any and
all of the foregoing items are to be made available by the Master Servicer upon
request; however, the Master Servicer shall be permitted to require, except from
the Rating Agencies, payment of a sum sufficient to cover the reasonable
out-of-pocket costs and expenses of providing such service. The Special Servicer
shall, as to each Specially Serviced Mortgage Loan and REO Property, promptly
deliver to the Master Servicer a copy of each document or instrument added to
the related Servicing File, and the Master Servicer shall in no way be in
default under this Section 3.19(h) solely by reason of the Special Servicer's
failure to do so. The Master Servicer shall not be liable for the dissemination
of information in accordance with this Section 3.19(h).
In connection with providing access to or copies of the items described
in the preceding paragraph, the Master Servicer may require, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Master Servicer, generally to the effect
that such Person is a beneficial holder of Certificates and will otherwise keep
such information confidential, and (ii) in the case of a prospective purchaser,
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a prospective purchaser of a Certificate or an interest therein, is requesting
the information for use in evaluating a possible investment in Certificates and
will otherwise keep such information confidential. All Certificateholders, by
the acceptance of their Certificates, shall be deemed to have agreed to keep
such information confidential, except to the extent that the Depositor grants
written permission to the contrary.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer may (consistent with the Servicing Standard),
but the Master Servicer may not (except as provided in the last sentence of
Section 3.02(a), agree to any modification, waiver or amendment of any term of,
extend the maturity of, defer or forgive interest (including Default Interest
and Post-ARD Additional Interest) on and principal of, defer or forgive late
payment charges and Prepayment Premiums on, permit the release, addition or
substitution of collateral securing, and/or permit the release, addition or
substitution of the Borrower on or any guarantor of, any Mortgage Loan; provided
that the Special Servicer's right to do so shall be subject to Sections 3.08 and
3.24 and, further, to each of the following limitations, conditions and
restrictions:
(i) other than as provided in Sections 3.02, 3.08 and 3.20(f), the
Special Servicer shall not agree to any modification, waiver or amendment
of any term of, or take any of the
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other acts referenced in this Section 3.20(a) with respect to, any Mortgage
Loan that would affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder or, in the Special
Servicer's reasonable judgment, would materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon, unless a material default on such Mortgage Loan has occurred
or, in the Special Servicer's reasonable judgment, a default in respect of
payment on such Mortgage Loan is reasonably foreseeable, and such
modification, waiver, amendment or other action is reasonably likely to
produce a greater recovery to Certificateholders (as a collective whole) on
a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders to be done at the related
Mortgage Rate), than would liquidation;
(ii) the Special Servicer shall not extend the date on which any
Balloon Payment is scheduled to be due on any Mortgage Loan to a date
beyond the earliest of (A) two years prior to the Rated Final Distribution
Date and (B) if such Mortgage Loan is secured by a Mortgage solely or
primarily on the related Borrower's leasehold interest in the related
Mortgaged Property, 20 years (or, to the extent consistent with the
Servicing Standard, giving due consideration to the remaining term of the
Ground Lease, 10 years) prior to the end of the then current term of the
related Ground Lease (plus any unilateral options to extend); and,
furthermore, the Special Servicer shall not grant any such extension unless
the related Borrower agrees to deliver to the Master Servicer, the Special
Servicer, the Trustee and the Controlling Class Representative quarterly
and annual operating statements and the related rent rolls with respect to
the related Mortgaged Property (the Special Servicer to request that such
statements be audited, provided that the Special Servicer may waive such
condition relating to such statements being audited, in its sole
discretion);
(iii) the Special Servicer shall not make or permit any modification,
waiver or amendment of any term of, or take any of the other acts
referenced in this Section 3.20(a) with respect to, any Mortgage Loan that
would result in an Adverse REMIC Event with respect to any REMIC Pool or an
Adverse Grantor Trust Event with respect to either Grantor Trust Pool (it
being acknowledged and agreed that the Special Servicer shall not be liable
for decisions made under this subsection in accordance with the Servicing
Standard; and, unless it would be contrary to the Servicing Standard to do
so, the Special Servicer may rely on Opinions of Counsel in making such
decisions);
(iv) the Special Servicer shall not permit any Borrower to add or
substitute any real estate collateral for its Mortgage Loan unless the
Special Servicer shall have first (A) determined, in its reasonable
judgment, based upon a Phase I Environmental Assessment (and any additional
environmental testing that the Special Servicer deems necessary and
prudent) conducted by an Independent Person who regularly conducts Phase I
Environmental Assessments, at the expense of the Borrower, that such
additional or substitute collateral is in compliance with applicable
environmental laws and regulations and that there are no circumstances or
conditions present with respect to such new collateral relating to the use,
management or disposal of any Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation would be required
under any then applicable environmental laws or regulations and (B)
received written confirmation from each Rating Agency that such addition or
substitution of such real estate
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collateral will not, in and of itself, result in an Adverse Rating Event
with respect to any Class of Rated Certificates; and
(v) the Special Servicer shall not release, including in connection
with a substitution contemplated by clause (iv) above, any collateral
securing an outstanding Mortgage Loan, except as provided in Section
3.09(d) or Section 3.20(g), or except where a Mortgage Loan (or, in the
case of a Cross-Collateralized Group, where such entire
Cross-Collateralized Group) is satisfied, or except in the case of a
release where (A) either (1) the use of the collateral to be released will
not, in the Special Servicer's reasonable judgment, materially and
adversely affect the Net Operating Income being generated by or the use of
the related Mortgaged Property, or (2) there is a corresponding principal
pay down of such Mortgage Loan in an amount at least equal to the appraised
value of the collateral to be released (or substitute collateral with an
appraised value at least equal to that of the collateral to be released, is
delivered), (B) the remaining Mortgaged Property (together with any
substitute collateral) is, in the Special Servicer's reasonable judgment,
adequate security for the remaining Mortgage Loan and (C) such release
would not, in and of itself, result in an Adverse Rating Event with respect
to any Class of Rated Certificates (as confirmed in writing to the Trustee
by each Rating Agency);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (v) above shall not apply to any act or event (including,
without limitation, a release, substitution or addition of collateral) in
respect of any Mortgage Loan that either occurs automatically by its terms, or
results from the exercise of a unilateral option by the related Borrower within
the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event
under the terms of such Mortgage Loan in effect on the Closing Date, and (y)
notwithstanding clauses (i) through (v) above, the Special Servicer shall not be
required to oppose the confirmation of a plan in any bankruptcy or similar
proceeding involving a Borrower, if in its reasonable judgment, such opposition
would not ultimately prevent the confirmation of such plan or one substantially
similar.
(b) The Special Servicer shall have no liability to the Trust, the
Certificateholders or any other Person if the Special Servicer's analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders (as collective whole) on a present value basis
than would liquidation, should prove to be wrong or incorrect, so long as the
analysis and determination were made on a reasonable basis by the Special
Servicer and the Special Servicer has acted reasonably and complied with the
Servicing Standard in ascertaining the pertinent facts. Each such determination
shall be evidenced by an Officer's Certificate to such effect to be delivered by
the Special Servicer to the Certificate Administrator.
(c) Any payment of interest, which is deferred pursuant to Section
3.20(a), shall not, for purposes of calculating monthly distributions and
reporting information to Certificateholders, be added to the unpaid principal
balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the Master Servicer or the Special Servicer on
behalf of the Trust to enforce any obligations of the related Borrower under
such Mortgage Loan.
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(d) The Special Servicer may, as a condition to its granting any
request by a Borrower for consent, modification, waiver or indulgence or any
other matter or thing, the granting of which is within the Special Servicer's
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and is permitted by the terms of this Agreement, require
that such Borrower pay to it a reasonable or customary fee (which shall in no
event exceed 1.0% of the unpaid principal balance of the related Mortgage Loan)
for the additional services performed in connection with such request, together
with any related processing fee, application fee and costs and expenses incurred
by it. All such fees collected by the Special Servicer shall constitute
Additional Special Servicing Compensation as provided in Section 3.11.
(e) All modifications, amendments, material waivers and other material
actions entered into or taken in respect of the Mortgage Loans pursuant to this
Section 3.20 shall be in writing. The Special Servicer shall notify the Master
Servicer, each Rating Agency, the Certificate Administrator, the Trustee and the
Controlling Class Representative, in writing, of any modification, waiver,
amendment or other action entered into or taken thereby in respect of any
Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File (with a copy to the Master Servicer), an original counterpart of
the agreement relating to such modification, waiver, amendment or other action,
promptly (and in any event within ten Business Days) following the execution
thereof. In addition, following the execution of any modification, waiver or
amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above,
the Special Servicer shall deliver to the Master Servicer, the Trustee, the
Certificate Administrator and the Rating Agencies an Officer's Certificate
certifying that all of the requirements of Section 3.20(a) have been met and
setting forth in reasonable detail the basis of the determination made by it
pursuant to Section 3.20(a)(i); provided that, if such modification, waiver or
amendment involves an extension of the maturity of any Mortgage Loan, such
Officer's Certificate shall be delivered to the Master Servicer, the Trustee,
the Certificate Administrator and the Rating Agencies before the modification,
waiver or amendment is agreed to.
(f) With respect to any ARD Loan after its Anticipated Repayment Date,
the Special Servicer shall be permitted, in its discretion, to waive (such
waiver to be in writing addressed to the related Borrower, with a copy to the
Trustee) all or any portion of the accrued Post-ARD Additional Interest in
respect of such ARD Loan if, prior to the related maturity date, the related
Borrower has requested the right to prepay such ARD Loan in full, together with
all payments required by the related Mortgage Loan documents in connection with
such prepayment, except for such accrued Post-ARD Additional Interest, provided
that the Special Servicer has determined, in its reasonable judgment, that the
waiver of the Trust's right to receive such accrued Post-ARD Additional Interest
is in accordance with the Servicing Standard.
(g) In the event that the Master Servicer receives a request by a
Borrower for consent, modification, waiver or indulgence or any other matter or
thing, the request of which would require action on the part of the Special
Servicer under this Section 3.20, the Master Servicer shall promptly notify the
Special Servicer, in writing, of such request.
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SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, if the Master Servicer is not also the Special
Servicer, the Master Servicer shall immediately give notice thereof, and shall
deliver the related Servicing File, to the Special Servicer and shall use its
reasonable efforts to provide the Special Servicer with all information,
documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. Without regard to whether the Master Servicer and the Special
Servicer are the same Person, the Special Servicer shall immediately give notice
of a Servicing Transfer Event to the Controlling Class Representative. The
Master Servicer shall use its reasonable efforts to comply with the preceding
sentence within five Business Days of the occurrence of each related Servicing
Transfer Event. The Special Servicer may, as to any delinquent Mortgage Loan,
prior to the occurrence of a Servicing Transfer Event with respect thereto,
request and obtain the foregoing documents and information in order to perform
its duties described in Section 3.02.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File within five Business Days, to the Master
Servicer; and, upon giving such notice and returning such Servicing File to the
Master Servicer, the Special Servicer's obligation to service such Mortgage
Loan, and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Mortgage Loan, shall terminate, and the obligations of the
Master Servicer to service and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with the
transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master Servicer
and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee (or the applicable Custodian appointed by
the Trustee) originals of documents contemplated by the definition of "Mortgage
File" and generated while such Mortgage Loan is a Specially Serviced Mortgage
Loan, for inclusion in the related Mortgage File (with a copy of each such
original to the Master Servicer), and copies of any additional related Mortgage
Loan information, including correspondence with the related Borrower generated
while such Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) The Master Servicer and Special Servicer shall each furnish to the
other, upon reasonable request, such reports, documents, certifications and
information in its possession,
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and access to such books and records maintained thereby, as may relate to the
Mortgage Loans and any REO Properties and as shall be reasonably required by the
requesting party in order to perform its duties hereunder.
(d) In connection with the performance of its obligations hereunder,
each of the Master Servicer and the Special Servicer shall be entitled to rely
upon written information provided to it by the other.
(e) Notwithstanding anything in this Agreement to the contrary, in the
event that the Master Servicer and the Special Servicer are the same Person, all
notices, certificates, information, consents and documents required to be given
or delivered by the Master Servicer to the Special Servicer or vice versa shall
be deemed to be given or delivered, as the case may be, without the necessity of
any action on such Person's part.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and, subject to Section 3.22(f), the Special
Servicer may each enter into Sub-Servicing Agreements to provide for the
performance by third parties of any or all of its obligations hereunder,
provided that, in each case, the Sub-Servicing Agreement: (i) is not
inconsistent with this Agreement and does not subject the Trust to any
liability; (ii) expressly or effectively provides that if the Master Servicer or
Special Servicer, as the case may be, shall for any reason no longer act in such
capacity hereunder (including by reason of an Event of Default), any successor
to the Master Servicer or the Special Servicer, as the case may be, hereunder
(including the Trustee if the Trustee has become such successor pursuant to
Section 7.02) may thereupon either assume all of the rights and, except to the
extent they arose prior to the date of assumption, obligations of the Master
Servicer or Special Servicer, as the case may be, under such agreement or,
subject to the provisions of Section 3.22(d), terminate such rights and
obligations, in either case without payment of any fee except as set forth in
Section 3.22(d); (iii) prohibits the Sub-Servicer from modifying any Mortgage
Loan or commencing any foreclosure or similar proceedings with respect to any
Mortgaged Property without the consent of the Master Servicer or the Special
Servicer; (iv) in the case of a Sub-Servicing Agreement entered into by the
Master Servicer, expressly or effectively provides (unless the Special Servicer
agrees otherwise) that such agreement shall be suspended or terminated with
respect to any Mortgage Loan serviced thereunder at the time such Mortgage Loan
becomes a Specially Serviced Mortgage Loan, and also expressly or effectively
provides (unless the Special Servicer agrees otherwise) that the Sub-Servicer
shall not receive or accrue an entitlement to any sub-servicing compensation in
respect of a Specially Serviced Mortgage Loan or an REO Loan; and (v) in the
case of a Sub-Servicing Agreement entered into by the Special Servicer, relates
only to Specially Serviced Mortgage Loans or REO Properties and expressly or
effectively provides that such agreement shall terminate with respect to any
such Mortgage Loan that becomes a Corrected Mortgage Loan. References in this
Agreement to actions taken or to be taken by the Master Servicer or the Special
Servicer, as the case may be, include actions taken or to be taken by a
Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer or the Special
Servicer, as the case may be, hereunder to make Advances shall be deemed to have
been advanced by the Master Servicer or the Special Servicer, as the case may
be, out of its own funds. Accordingly, such Advances shall be recoverable by
such Sub-Servicer in the same manner and out of the same funds
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as if such Sub-Servicer were the Master Servicer or the Special Servicer, as the
case may be; and, for so long as they are outstanding, such Advances shall
accrue interest in accordance with Section 3.11(g) and/or Section 4.03(d), such
interest to be allocable between the Master Servicer or the Special Servicer, as
the case may be, and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when a Sub-Servicer retained by it receives such
payment. The Master Servicer and the Special Servicer each shall notify the
other such party, the Trustee, the Certificate Administrator and the Depositor
in writing promptly of the appointment by it of any Sub-Servicer, and shall
deliver to the Trustee and the Certificate Administrator copies of all
Sub-Servicing Agreements, and any amendments thereto and modifications thereof,
entered into by it promptly upon its execution and delivery of such documents.
(b) Each Sub-Servicer shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the other such
party or to the Trustee, the Certificateholders or the Trust) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its reasonable judgment,
would require were it the owner of the Mortgage Loans. Subject to the terms of
the related Sub-Servicing Agreement, the Master Servicer and the Special
Servicer shall each have the right to remove a Sub-Servicer retained by it at
any time it considers such removal to be in the best interests of
Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to serve as
such under this Agreement for any reason (including by reason of an Event of
Default), then the Trustee or other successor Master Servicer or Special
Servicer, as the case may be, shall succeed to the rights and assume the
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement unless the Trustee or other successor Master Servicer or
Special Servicer elects to terminate any such Sub-Servicing Agreement in
accordance with its terms and Section 3.22(a)(ii) hereof; provided that a
Designated Sub-Servicer Agreement may not be so terminated except for cause. In
any event, if a Sub-Servicing Agreement is to be assumed by the Trustee or other
successor Master Servicer or Special Servicer, then the Master Servicer or the
Special Servicer, as applicable, at its expense shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
such Sub-Servicing Agreement and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected and held on behalf of it
thereunder, and otherwise use its reasonable efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were
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servicing and administering the Mortgage Loans or REO Properties for which it is
responsible. No appointment of a Sub-Servicer shall result in any additional
expense to the Trustee, the Certificate Administrator, the Certificateholders or
the Trust other than those contemplated herein.
(f) The Special Servicer shall not enter into any Sub-Servicing
Agreement unless either: (i) the Rating Agencies have confirmed in writing that
entering into such agreement will not result in an Adverse Rating Event; or (ii)
such agreement relates to one or more Mortgage Loans (including any such
Mortgage Loan(s) previously sub-serviced in accordance with this Section 3.22)
that together represent less than 25% of the aggregate outstanding principal
balance of all Specially Serviced Mortgage Loans.
(g) Each successor Master Servicer hereunder shall, except as provided
in Section 7.01(c), agree to assume the responsibilities and obligations of the
Master Servicer under the applicable Designated Sub-Servicer Agreement.
SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Certificate
Administrator of written requests for the selection of a Controlling Class
Representative from the Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class, (ii) the resignation or removal of
the Person acting as Controlling Class Representative or (iii) a determination
by the Certificate Administrator that the Controlling Class has changed, the
Certificate Administrator shall promptly notify the Depositor and the Holders
(and, in the case of Book-Entry Certificates, to the extent actually known to a
Responsible Officer of the Certificate Administrator or identified thereto by
the Depository, at the expense of the Certificateholder or Certificate Owner
requesting information with respect to clause (i) and clause (iii) above if the
Depository charges a fee for such identification, or the Depository
Participants, the Certificate Owners) of the Controlling Class that they may
select a Controlling Class Representative. Such notice shall set forth the
process established by the Certificate Administrator for selecting a Controlling
Class Representative, which process may include the designation of the
Controlling Class Representative by the Majority Controlling Class
Certificateholder by a writing delivered to the Certificate Administrator. No
appointment of any Person as a Controlling Class Representative shall be
effective until such Person provides the Certificate Administrator with written
confirmation of its acceptance of such appointment, written confirmation that it
will keep confidential all information received by it as Controlling Class
Representative hereunder or otherwise with respect to the Certificates, the
Trust Fund and/or this Agreement, an address and telecopy number for the
delivery of notices and other correspondence and a list of officers or employees
of such Person with whom the parties to this Agreement may deal (including their
names, titles, work addresses and telecopy numbers).
(b) Within ten Business Days (or as soon thereafter as practicable if
the Controlling Class consists of Book-Entry Certificates) of any change in the
identity of the
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Controlling Class Representative of which a Responsible Officer of the
Certificate Administrator has actual knowledge the Certificate Administrator
shall deliver to the Holders or Certificate Owners, as applicable, of the
Controlling Class, the Master Servicer and the Special Servicer the identity of
the new Controlling Class Representative and a list of each Holder (or, in the
case of Book-Entry Certificates, to the extent actually known to a Responsible
Officer of the Trustee or identified thereto by the Depository or the Depository
Participants, each Certificate Owner) of the Controlling Class, including, in
each case, names and addresses. With respect to such information, the
Certificate Administrator shall be entitled to conclusively rely on information
provided to it by the Holders (or, in the case of Book-Entry Certificates,
subject to Section 5.06, by the Depository or the Certificate Owners) of such
Certificates, and the Master Servicer and the Special Servicer shall be entitled
to rely on such information provided by the Certificate Administrator with
respect to any obligation or right hereunder that the Master Servicer and the
Special Servicer may have to deliver information or otherwise communicate with
the Controlling Class Representative or any of the Holders (or, if applicable,
Certificate Owners) of the Controlling Class. In addition to the foregoing,
within two Business Days of the selection, resignation or removal of a
Controlling Class Representative, the Certificate Administrator shall notify the
parties to this Agreement of such event.
(c) A Controlling Class Representative may at any time resign as such
by giving written notice to the Certificate Administrator and to each Holder
(or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class. The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled to remove any
existing Controlling Class Representative by giving written notice to the
Certificate Administrator and to such existing Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected pursuant
to this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Certificate Administrator
and each other party to this Agreement and each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class, in
writing, of the resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative shall
be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Borrower with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Certificate
Administrator, the Trustee, the Master Servicer and the Special Servicer,
whereupon (if the Special Servicer, the Master Servicer or the Trust are also
named parties to the same action and, in the sole judgment of the Special
Servicer, (i) the Controlling Class Representative had acted in good faith,
without negligence or willful misfeasance, with regard to the particular matter
at issue, and (ii) there is no potential for the Special Servicer, the Master
Servicer or the Trust to be an adverse party in such action as regards the
Controlling Class Representative) the Special Servicer on behalf of the Trust
shall, subject to
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Section 6.03, assume the defense of any such claim against the Controlling Class
Representative. This provision shall survive the termination of this Agreement
and the termination or resignation of the Controlling Class Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) The Controlling Class Representative will be entitled to advise the
Special Servicer with respect to the following actions of the Special Servicer,
and notwithstanding anything in any other Section of this Agreement to the
contrary, but in all cases subject to Section 3.24(b), the Special Servicer will
not be permitted to take any of the following actions unless and until it has
notified the Controlling Class Representative in writing and the Controlling
Class Representative has not objected in writing within ten Business Days of
having been notified thereof in writing and having been provided with all
reasonably requested information with respect thereto (provided that if such
written objection has not been received by the Special Servicer within such ten
Business Day period, then the Controlling Class Representative's approval will
be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification, amendment or waiver of a monetary term
(including the timing of payments) or any material non-monetary term of a
Specially Serviced Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the Purchase Price;
(iv) any acceptance of a discounted payoff with respect to a Specially
Serviced Mortgage Loan;
(v) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(vi) any release of collateral for a Specially Serviced Mortgage Loan
(other than in accordance with the terms of, or upon satisfaction of, such
Mortgage Loan);
(vii) any acceptance of substitute or additional collateral for a
Specially Serviced Mortgage Loan (other than in accordance with the terms
of such Mortgage Loan);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to any Mortgage Loan; and
(ix) any acceptance of an assumption agreement releasing a borrower
from liability under a Mortgage Loan;
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provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Controlling Class Representative's response.
In addition, subject to Section 3.24(b), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, such actions as the Controlling Class Representative may deem advisable
or as to which provision is otherwise made herein. Upon reasonable request, the
Special Servicer shall provide the Controlling Class Representative with any
information in the Special Servicer's possession with respect to such matters,
including, without limitation, its reasons for determining to take a proposed
action; provided that such information shall also be provided, in a written
format, to the Certificate Administrator, who shall make it available for review
pursuant to Section 8.12(b) unless making it so available would cause material
harm to the interests of the Trust.
(b) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from any Controlling Class Representative
prior to acting, and provisions of this Agreement requiring such shall be of no
effect, during the period prior to the initial selection of a Controlling Class
Representative and, if any Controlling Class Representative resigns or is
removed, during the period following such resignation or removal until a
replacement is selected and (ii) no advice, direction or objection from or by
the Controlling Class Representative, as contemplated by Section 3.24(a), may
(and the Special Servicer shall ignore and act without regard to any such
advice, direction or objection that the Special Servicer has determined, in its
reasonable, good faith judgment, would) (A) require or cause the Special
Servicer to violate applicable law, the terms of any Mortgage Loan, any other
Section of this Agreement or any provision of the REMIC Provisions, including
the Special Servicer's obligation to act in accordance with the Servicing
Standard, (B) result in an Adverse REMIC Event with respect to any REMIC Pool or
an Adverse Grantor Trust Event with respect to either Grantor Trust Pool, (C)
expose the Trust, the Depositor, the Underwriters, the Master Servicer, the
Special Servicer, any Fiscal Agent, the Tax Administrator, the Certificate
Administrator or the Trustee, or any of their respective Affiliates, officers,
directors, members, managers, employees or agents, to any material claim, suit
or liability, or (D) materially expand the scope of the Special Servicer's
responsibilities under this Agreement.
Furthermore, the Special Servicer shall not be obligated to obtain the
approval of the Controlling Class Representative for any actions to be taken by
the Special Servicer with respect to any particular Mortgage Loan if (i) the
Special Servicer has, in accordance with Section 3.24(a), notified the
Controlling Class Representative in writing of the various actions that the
Special Servicer proposes to take with respect to the work-out or liquidation of
such Mortgage Loan and (ii) for 60 days following the first such notice, the
Controlling Class Representative has objected to all of those proposed actions
and has failed to suggest or agree to any alternative actions that the Special
Servicer considers to be consistent with the Servicing Standard.
(c) The Controlling Class Representative will have no liability to the
Trust or the Certificateholders for any action taken, or for refraining from the
taking of any action, in good faith pursuant to this Agreement, or for errors in
judgment. Each Certificateholder acknowledges and agrees, by its acceptance of
its Certificates or an interest therein, that the Controlling Class
Representative may have special relationships and interests that conflict with
those of Holders of
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one or more Classes of Certificates, that the Controlling Class Representative
may act solely in the interests of the Holders of the Controlling Class, that
the Controlling Class Representative does not have any duties to the Holders and
Certificate Owners of any Class of Certificates other than the Controlling
Class, that the Controlling Class Representative may take actions that favor
interests of the Holders of the Controlling Class over the interests of the
Holders of one or more other Classes of Certificates, and that the Controlling
Class Representative shall have no liability whatsoever for having so acted, and
no Certificateholder may take any action whatsoever against the Controlling
Class Representative, any Holder, of the Controlling Class or any director,
officer, employee, agent or principal thereof for having so acted.
SECTION 3.25. Application of Default Interest.
(a) Any and all Default Interest that is actually collected with
respect to any Mortgage Loan or REO Mortgage Loan during any Collection Period,
shall be applied for the following purposes and in the following order, in each
case to the extent of the remaining portion of such Default Interest:
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer or the Special Servicer, in that order, any interest due and
owing to such party on outstanding Advances made thereby with respect
to any Mortgage Loan or REO Mortgage Loan in the Mortgage Pool;
second, to pay any other outstanding expenses (other than
Special Servicing Fees) incurred with respect to any Mortgage Loan or
REO Mortgage Loan in the Mortgage Pool, which expenses, if paid from a
source other than Default Interest, would constitute Additional Trust
Fund Expenses;
third, to reimburse the Trust for any interest on Advances
paid to any Fiscal Agent, the Trustee, the Master Servicer or the
Special Servicer in the preceding twelve months with respect to any
Mortgage Loan or REO Mortgage Loan in the Mortgage Pool, which payment
was made from a source other than Default Interest;
fourth, to reimburse the Trust for any other Additional Trust
Fund Expenses (other than Special Servicing Fees) paid in the preceding
twelve months with respect to any Mortgage Loan or REO Mortgage Loan in
the Mortgage Pool, which payment was made from a source other than
Default Interest; and
fifth, to pay any remaining portion of such Default Interest
(such remaining portion, "Net Default Interest") as Additional Master
Servicing Compensation to the Master Servicer or as Additional Special
Servicing Compensation to the Special Servicer, as applicable, in
accordance with Section 3.11.
(b) Default Interest applied to reimburse the Trust pursuant to clauses
third and fourth of Section 3.25(a), are intended to be part of the amounts to
be delivered by the Master Servicer to the Certificate Administrator pursuant to
Section 3.04(b) on or before the Master Servicer Remittance Date next following
the Collection Period during which they were received, for deposit in the
Distribution Account, subject to application pursuant to Section 3.05(a) for any
items payable out of general collections on the Mortgage Loans and any REO
Properties. Default Interest
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applied to pay outstanding interest on Advances to any particular party pursuant
to clause first of Section 3.25(a) shall be applied to pay such party such
interest on Advances such that the interest that accrued first and has been
outstanding the longest shall be paid first. Default Interest applied to pay
outstanding expenses pursuant to clause second of Section 3.25(a) shall be
applied to pay such expenses in the chronological order in which they were
incurred. Default Interest applied to reimburse the Trust pursuant to clauses
third and fourth of Section 3.25(a) shall be deemed to offset either interest
paid on Advances or other Additional Trust Fund Expenses, depending on which
clause is applicable, in the chronological order in which they were made or
incurred, as applicable (whereupon such interest paid on Advances or such other
Additional Trust Fund Expenses, depending on which clause is applicable, shall
thereafter be deemed to have been paid out of Default Interest).
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Certificate Administrator
shall apply the Standard Available Distribution Amount for such Distribution
Date for the following purposes and in the following order of priority, in each
case to the extent of the remaining portion of such Standard Available
Distribution Amount:
first, to make distributions of interest to the Holders of the
Class A-1 Certificates, the Holders of the Class A-2 Certificates and
the Holders of the Class X Certificates, up to, and pro rata as among
such Classes of Certificateholders based on, their respective Current
Interest Distribution Amounts for such Distribution Date;
second, to make distributions of interest to the Holders of
the Class A-1 Certificates, the Holders of the Class A-2 Certificates
and the Holders of the Class X Certificates, up to, and pro rata as
among such Classes of Certificateholders based on, their respective
Carryforward Interest Distribution Amounts for such Distribution Date;
third, to make distributions of principal to the Holders of
the Class A-1 Certificates and/or the Holders of the Class A-2
Certificates as follows--
(i) prior to the occurrence of the Final Distribution Date or
any Senior Principal Distribution Cross-Over Date, sequentially to the
Holders of the Class A-1 Certificates, up to their Principal
Distribution Amount for such Distribution Date, and then to the Holders
of the Class A-2 Certificates, up to their Principal Distribution
Amount for such Distribution Date, and
(ii) on and after the occurrence of any Senior Principal
Distribution Cross-Over Date, and in any event on the Final
Distribution Date, to the Holders of the Class A-1 Certificates and the
Holders of the Class A-2 Certificates, up to, and pro rata as between
such Classes of Certificateholders based on, their respective Principal
Distribution Amounts for such Distribution Date; and
fourth, to reimburse the Holders of the Class A-1 Certificates
and the Holders of the Class A-2 Certificates for any Unfunded
Principal Balance Reductions previously incurred thereby, up to, and
pro rata as between such Classes of Certificateholders based on, their
respective Loss Reimbursement Amounts for such Distribution Date.
(b) On each Distribution Date, following the distributions on
the Senior Certificates to be made on such date pursuant to Section 4.01(a), the
Certificate Administrator shall apply any remaining portion of the Standard
Available Distribution Amount for such Distribution Date to make distributions
to the Holders of the respective Classes of the Subordinate Principal Balance
Certificates, in the following order and, in the case of each such Class of
Subordinate Principal Balance Certificates, up to the lesser of (i) the total of
the Current Interest Distribution
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Amount, the Carryforward Interest Distribution Amount, the Principal
Distribution Amount and the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date and (ii) the remaining portion of the
Standard Available Distribution Amount for such Distribution Date (after taking
into account all prior distributions made on such Distribution Date pursuant to
Section 4.01(a) and this Section 4.01(b)): first, to the Holders of the Class B
Certificates; second, to the Holders of the Class C Certificates; third, to the
Holders of the Class D Certificates; fourth, to the Holders of the Class E
Certificates; fifth, to the Holders of the Class F Certificates; sixth, to the
Holders of the Class G Certificates; seventh, to the Holders of the Class H
Certificates; eighth, to the Holders of the Class J Certificates; ninth, to the
Holders of the Class K Certificates; tenth, to the Holders of the Class L
Certificates; eleventh, to the Holders of the Class M Certificates; twelfth, to
the Holders of the Class N Certificates; and, thirteenth, to the Holders of the
Class P Certificates. Amounts distributable to the Holders of any Class of
Subordinate Principal Balance Certificates on any Distribution Date pursuant to
this Section 4.01(b) shall be applied:
first, to make distributions of interest to the Holders of
such Class of Certificates, up to their Current Interest Distribution
Amount for such Distribution Date;
second, to make distributions of interest to the Holders of
such Class of Certificates, up to their Carryforward Interest
Distribution Amount for such Distribution Date;
third, to make distributions of principal to the Holders of
such Class of Certificates, up to their Principal Distribution Amount
for such Distribution Date; and
fourth, to reimburse the Holders of such Class of Certificates
for any Unfunded Principal Balance Reductions previously incurred
thereby, up to their Loss Reimbursement Amount for such Distribution
Date.
(c) On each Distribution Date, following the distributions on
the REMIC III Regular Interest Certificates to be made on such date pursuant to
Sections 4.01(a) and 4.01(b), the Certificate Administrator shall pay any
remaining portion of the Standard Available Distribution Amount for such
Distribution Date to the Holders of the Class R Certificates.
(d) On each Distribution Date, the Certificate Administrator
shall apply, for the following purposes and in the following order of priority,
any amount then on deposit in the Distribution Account that represents a
Prepayment Premium collected with respect to any Mortgage Loan as of the end of
the related Collection Period:
first, to make distributions of additional interest to the
Holders of the respective Classes of the Yield Maintenance
Certificates, up to, and pro rata as among such Classes of
Certificateholders based on, their respective applicable Additional
Yield Amounts; and
second, to make distributions of additional interest to the
Holders of the Class X Certificates, up to the remaining portion, if
any, of such Prepayment Premiums.
For purposes of determining the portion of any Prepayment
Premium that is distributable to the Holders of any Class of Yield Maintenance
Certificates on any Distribution Date, the applicable "Additional Yield Amount"
shall be an amount equal to the product of: (i) the amount of such Prepayment
Premium that is so distributable; multiplied by (ii) a fraction (not
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greater than one or less than zero), the numerator of which is equal to the
excess, if any, of (A) the Pass-Through Rate applicable to such Class of Yield
Maintenance Certificates for the corresponding Interest Accrual Period, over (B)
the Monthly Equivalent Discount Rate (as defined below), and the denominator of
which is equal to the excess, if any, of (X) the Mortgage Rate for the Mortgage
Loan in respect of which such Prepayment Premium was received, over (Y) the
Monthly Equivalent Discount Rate; multiplied by (iii) a fraction (not greater
than one or less than zero), the numerator of which is equal to the Principal
Distribution Amount with respect to such Class of Yield Maintenance Certificates
for such Distribution Date, and the denominator of which is equal to the Total
Principal Distribution Amount for such Distribution Date.
For purposes of determining the portion of any Prepayment
Premium that is distributable to the Holders of any Class of Yield Maintenance
Certificates on any Distribution Date, the relevant "Monthly Equivalent Discount
Rate" is a rate which, when compounded monthly, is equivalent to the relevant
Discount Rate when compounded semi-annually; and the relevant "Discount Rate"
shall be a rate determined by the Certificate Administrator, in good faith, as
follows --
(i) with respect to any prepaid Mortgage Loan identified on
the Mortgage Loan Schedule as having a yield maintenance discount rate
of "Treasury Flat-Maturity", the "Discount Rate" will equal the average
yield for "This Week" as reported by the Federal Reserve Board in
Federal Reserve Statistical Release H.15(519) for the constant maturity
treasury security having a maturity coterminous with the remaining term
to maturity or to the related Anticipated Repayment Date, as
applicable, for the prepaid Mortgage Loan, provided that if there are
no constant maturity treasuries having such a maturity, then that
"Discount Rate" will equal the interpolation of the yields of the
constant maturity treasuries with maturities longer and shorter than
the remaining term to maturity or to the related Anticipated Repayment
Date, as applicable, for the prepaid Mortgage Loan, or
(ii) with respect to any prepaid Mortgage Loan identified on
the Mortgage Loan Schedule as having a yield maintenance discount rate
of "Treasury Flat-Maturity", the "Discount Rate" will equal the average
yield for "This Week" as reported by the Federal Reserve Board in
Federal Reserve Statistical Release H.15(519) for the constant maturity
treasury security having a maturity coterminous with the remaining
weighted average life of the prepaid Mortgage Loan, provided that in
the case of an ARD Loan, the remaining weighted average life will be
calculated assuming all principal is repaid on the Anticipated
Repayment Date, and provided, further, that if there are no constant
maturity treasuries having such a maturity, then that "Discount Rate"
will equal the interpolation of the yields of the constant maturity
treasuries with maturities longer and shorter than the remaining
weighted average life for the prepaid Mortgage Loan.
(e) On each Distribution Date, the Certificate Administrator
shall withdraw from the Distribution Account any amounts then on deposit in the
Class Y Sub-Account of the Distribution Account that represent Post-ARD
Additional Interest collected in respect of the ARD Loans during or prior to the
related Collection Period and shall distribute such amounts to the Holders of
the Class Y Certificates.
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(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
Holders of such Certificates based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions made with respect to
each Class of Certificates on each Distribution Date shall be made to the
Holders of such Certificates of record at the close of business on the related
Record Date and, in the case of each such Holder, shall be made by wire transfer
of immediately available funds to the account thereof at a bank or other entity
having appropriate facilities therefor, if such Holder shall have provided the
Trustee or the Certificate Administrator with wiring instructions no later than
the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent Distribution Dates), and otherwise
shall be made by check mailed to the address of such Holder as it appears in the
Certificate Register. The final distribution on each Certificate (determined, in
the case of a Principal Balance Certificate, without regard to any possible
future reimbursement of any portion of a previously incurred Unfunded Principal
Balance Reduction allocable to such Certificate) will be made in like manner,
but only upon presentation and surrender of such Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Any distribution that is to be
made with respect to a Principal Balance Certificate in reimbursement of any
portion of an Unfunded Principal Balance Reduction allocable to such
Certificate, which reimbursement is to occur after the date on which such
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the Holder that surrendered such Certificate at the last
address set forth for such Holder in the Certificate Register or at any other
address of which the Trustee was subsequently notified in writing.
(g) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each such indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the parties hereto shall
have any responsibility therefor except as otherwise provided by this Agreement
or applicable law. The Trustee and the Depositor shall perform their respective
obligations under the Letters of Representations among the Depositor, the
Trustee and the initial Depository, a copy of which Letters of Representations
is attached hereto as Exhibit C-1.
(h) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund in respect of their
Certificates, and all rights and interests of the Certificateholders in and to
such distributions, shall be as set forth in this Agreement. Neither the Holders
of any Class of Certificates nor any party hereto shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts previously distributed on the Certificates in accordance with
this Agreement.
(i) Except as otherwise provided in Section 9.01, whenever the
Certificate Administrator expects that the final distribution with respect to
any Class of Certificates will be made on the next Distribution Date (such final
distribution to be determined, in the case of a Class of Principal Balance
Certificates, without regard to any possible future reimbursement of any portion
of a previously incurred Unfunded Principal Balance Reduction in respect of such
Class),
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the Certificate Administrator shall, as promptly as possible (and, in any event,
no later than two Business Days) after the related Determination Date, mail to
each Holder of such Class of Certificates of record on such date a notice to the
effect that:
(i) the Certificate Administrator expects that the final
distribution with respect to such Class of Certificates will be made on
such Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Certificate Registrar or at such
other location therein specified, and
(ii) no interest shall accrue on such Certificates from and
after the end of the Interest Accrual Period for such Distribution
Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and credited to, and
shall be held uninvested in trust in, the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(i) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Certificate Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, then the Certificate Administrator, directly
or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders following the first anniversary
of the delivery of such second notice to the non-tendering Certificateholders
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust pursuant to this paragraph. If any
Certificates as to which notice has been given pursuant to this Section 4.01(i),
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, then, subject to applicable escheat laws, the
Certificate Administrator shall distribute to the Class R Certificateholders all
unclaimed funds.
(j) Notwithstanding any other provision of this Agreement, the
Certificate Administrator shall comply with all federal withholding requirements
respecting payments to Certificateholders of interest or original issue discount
that the Certificate Administrator reasonably believes are applicable under the
Code. The consent of Certificateholders shall not be required for such
withholding. If the Certificate Administrator does withhold any amount from
payments or advances of interest or original issue discount to any
Certificateholder pursuant to federal withholding requirements, the Certificate
Administrator shall indicate the amount withheld to such Certificateholder. Also
notwithstanding any other provision of this Agreement, the Certificate
Administrator shall use reasonable efforts to cause any withholding tax imposed
under the laws of the Commonwealth of Puerto Rico on interest payments received
by any REMIC Pool with respect to any Mortgage Loan secured by a Mortgaged
Property located in such Commonwealth as a result of a Certificateholder's or
Certificate Owner's ownership of more than 50% of the related Borrower, to be
specially allocated to such Certificateholder or Certificate Owner, as the case
may be, with a corresponding reduction in the amounts distributable to such
Certificateholder or Certificate Owner and the amount of such tax to be treated
as having been distributed to such
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Certificateholder or Certificate Owner, as the case may be; provided that if the
Certificate Administrator cannot cause the same with reasonable efforts, then
such withholding tax shall be treated as an Additional Trust Fund Expense.
(k) All distributions of interest made with respect to the
Class X Certificates on each Distribution Date pursuant to clause first of
Section 4.01(a) shall be deemed to have first been distributed from REMIC II to
REMIC III on such Distribution Date as interest with respect to the various
REMIC II Regular Interests, up to, and pro rata as among the REMIC II Regular
Interests based on, the Class X Portion of the Current Interest Distribution
Amount with respect to each such REMIC II Regular Interest for such Distribution
Date. All distributions of interest made with respect to the Class X
Certificates on each Distribution Date pursuant to clause second of Section
4.01(a) shall be deemed to have first been distributed from REMIC II to REMIC
III on such Distribution Date as interest with respect to the various REMIC II
Regular Interests, up to, and pro rata as among the REMIC II Regular Interests
based on, the Class X Portion of the Carryforward Interest Distribution Amount
with respect to each such REMIC II Regular Interest for such Distribution Date.
In addition, all distributions of additional interest (in the form of Prepayment
Premiums) made with respect to the Class X Certificates on each Distribution
Date pursuant to Section 4.01(d) shall be deemed to have first been distributed
from REMIC II to REMIC III on such Distribution Date as additional interest (in
the form of Prepayment Premiums) with respect to the various REMIC II Regular
Interests, pro rata in accordance with the respective amounts of principal
deemed distributed with respect to each such REMIC II Regular Interest for such
Distribution Date as provided in the following paragraph.
All distributions made with respect to each Class of Principal
Balance Certificates on each Distribution Date pursuant to Section 4.01(a),
Section 4.01(b) or Section 4.01(d) shall be deemed to have first been
distributed from REMIC II to REMIC III on such Distribution Date with respect to
the Corresponding REMIC II Regular Interest for such Class of Certificates. In
each case, if such distribution on any such Class of Principal Balance
Certificates was a distribution of interest, of principal, of additional
interest (in the form of Prepayment Premiums) or in reimbursement of any related
Unfunded Principal Balance Reductions with respect to such Class of
Certificates, then the corresponding distribution deemed to be made on the
Corresponding REMIC II Regular Interest for such Class of Certificates pursuant
to the preceding sentence shall be deemed also to be a distribution of interest,
of principal, of additional interest (in the form of Prepayment Premiums) or in
reimbursement of any related Unfunded Principal Balance Reductions with respect
to such REMIC II Regular Interest.
The actual distributions made by the Certificate Administrator
on each Distribution Date with respect to the Certificates pursuant to Section
4.01(a), Section 4.01(b), Section 4.01(c) (to the extent such distributions
relate to the REMIC III Residual Interest) or Section 4.01(d), as applicable,
shall be deemed to have been so made from the amounts deemed distributed with
respect to the REMIC II Regular Interests on such Distribution Date pursuant to
this Section 4.01(k). Notwithstanding the deemed distributions on the REMIC II
Regular Interests described in this Section 4.01(k), actual distributions of
funds from the Distribution Account shall be made only in accordance with
Section 4.01(a), Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section
4.01(e), as applicable.
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(l) On each Distribution Date, immediately prior to making any
actual distributions on the Certificates pursuant to Section 4.01(a), Section
4.01(b) or Section 4.01(c), or the corresponding deemed distributions on the
REMIC II Regular Interests pursuant to Section 4.01(k), the Certificate
Administrator shall be deemed to have made out of the Standard Available
Distribution Amount for such Distribution Date, the following distributions to
REMIC II in the following order of priority, in each case to the extent of the
remaining portion of such Standard Available Distribution Amount:
first, distributions of interest with respect to all of the
REMIC I Regular Interests, up to, and pro rata as among the REMIC I
Regular Interests based on, their respective Current Interest
Distribution Amounts for such Distribution Date;
second, distributions of interest with respect to all of the
REMIC I Regular Interests, up to, and pro rata as among the REMIC I
Regular Interests based on, their respective Carryforward Interest
Distribution Amounts for such Distribution Date;
third, distributions of principal with respect to all of the
REMIC I Regular Interests, up to, and pro rata as among the REMIC I
Regular Interests based on, their respective Principal Distribution
Amounts for such Distribution Date; and
fourth, reimbursements of Unfunded Principal Balance
Reductions with respect to all of the REMIC I Regular Interests
(including any REMIC I Regular Interests whose Uncertificated Principal
Balances have previously been reduced to zero), up to, and pro rata as
among the REMIC I Regular Interests based on, their respective Loss
Reimbursement Amounts for such Distribution Date.
In addition, on each Distribution Date, immediately prior to
making any actual distributions on the REMIC III Regular Interest Certificates
pursuant to Section 4.01(d), or the corresponding deemed distributions on the
REMIC II Regular Interests pursuant to Section 4.01(k), the Certificate
Administrator shall be deemed to have distributed to REMIC II each Prepayment
Premium then on deposit in the Distribution Account that was received on any
Mortgage Loan or REO Mortgage Loan during or prior to the related Collection
Period, such distribution to be deemed made with respect to the REMIC I Regular
Interest that relates to such Mortgage Loan or REO Mortgage Loan, as the case
may be.
The distributions deemed made by the Certificate Administrator
on each Distribution Date with respect to the REMIC II Regular Interests
pursuant to Section 4.01(k), as well as the distributions actually made by the
Certificate Administrator on each Distribution Date with respect to the
Certificates pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(c) (to
the extent such distributions relate to the REMIC II Residual Interest or the
REMIC III Residual Interest) or Section 4.01(d), shall be deemed to have been so
made from the amounts deemed distributed with respect to the REMIC I Regular
Interests on such Distribution Date pursuant to this Section 4.01(l).
Notwithstanding the deemed distributions on the REMIC I Regular Interests
described in this Section 4.01(l), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 4.01(e), as
applicable.
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SECTION 4.02. Statements to Certificateholders; Certain Other
Reports.
(a) Based solely on information provided to the Certificate
Administrator by the Master Servicer and the Special Servicer pursuant to
Sections 3.12, 4.02(b) and 4.02(c), the Certificate Administrator shall prepare
(or cause to be prepared) and, on each Distribution Date, provide or make
available electronically (or, upon request, by first class mail) to the
Depositor, the Trustee, the Master Servicer, the Special Servicer, the
Underwriters, the Rating Agencies, the Controlling Class Representative, Charter
Research Corporation, The Trepp Group, Intex Solutions, Inc., each
Certificateholder and, to the extent that the Certificate Administrator has in
accordance with Section 5.06(b) confirmed the Ownership Interest in the
Certificates held thereby, each Certificate Owner a statement substantially in
the form of, and containing the information set forth in, Exhibit E-1 hereto
(the "Distribution Date Statement"), detailing the distributions on such
Distribution Date and the performance, both in the aggregate and individually to
the extent available, of the Mortgage Loans and the Mortgaged Properties;
provided that the Certificate Administrator need not deliver to the Depositor,
the Master Servicer, the Special Servicer, the Mortgage Loan Sellers, the
Underwriters, Charter Research Corporation, The Trepp Group, Intex Solutions,
Inc., the Rating Agencies or the Controlling Class Representative any
Distribution Date Statement that has been made available via the Certificate
Administrator's Internet Website as provided below; and provided, further, that
the Certificate Administrator has no affirmative obligation to discover the
identities of Certificate Owners and need only react to Persons claiming to be
Certificate Owners in accordance with Section 5.06; and provided, further, that
the Certificate Administrator shall not provide Charter Research Corporation,
The Trepp Group and Intex Solutions, Inc. any information regarding the
Certificates until the Depositor confirms to the Certificate Administrator that
SSB and GCM have sold all of their respective allotments of the Non-Registered
Certificates to unaffiliated third parties.
On each Distribution Date, the Certificate Administrator shall
also provide or make available electronically (or, upon request, by first class
mail) to the Depositor, the Trustee, the Master Servicer, the Special Servicer,
the Underwriters, the Rating Agencies, the Controlling Class Representative,
each Certificateholder (and each Certificate Owner that is receiving a
Distribution Date Statement on such Distribution Date), at the same time that
the Distribution Date Statement is delivered thereto, the Collateral Summary
File, the Bond Level File and, to the extent received by the Certificate
Administrator since the prior Distribution Date (or, in the case of the initial
Distribution Date, since the Closing Date), each other file and report
comprising the CMSA Investor Reporting Package (excluding the Loan Set-Up File).
The Certificate Administrator shall have no obligation to
provide the information or reports described in this Section 4.02(a) until it
has received the requisite information or reports from the Master Servicer, and
the Certificate Administrator shall not be in default hereunder due to a delay
in providing the Certificateholder Reports caused by the Master Servicer's
failure to timely deliver any information or reports hereunder. None of the
Master Servicer, the Special Servicer, the Trustee or the Certificate
Administrator shall be responsible for the accuracy or completeness of any
information supplied to it by a Borrower or third party, and reasonably accepted
by it in good faith, that is included in any reports, statements, materials or
information prepared or provided by the Master Servicer, the Special Servicer,
the Trustee or the Certificate Administrator, as applicable. None of the
Trustee, the Certificate Administrator, the Master Servicer or the Special
Servicer shall
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have any obligation to verify the accuracy or completeness of any information
provided by a Borrower, a third party or each other.
The Certificate Administrator shall make available each month,
to Certificateholders, Certificate Owners, prospective investors and any other
interested party, via the Certificate Administrator's Internet Website, in a
downloadable format, all Distribution Date Statements and Unrestricted Servicer
Reports (which in each case, if applicable will identify each Mortgage Loan by
mortgage loan number and property name, if any) and, with the consent or at the
direction of the Depositor, such other information regarding the Certificates
and/or the Mortgage Loans as the Certificate Administrator may have in its
possession; provided that, unless (i) the particular report or information has
been filed with the Commission pursuant to Section 8.15 or (ii) the Depositor
has notified the Certificate Administrator that SSB and GCM have sold the
Non-Registered Certificates to unaffiliated third parties, access to such
reports and information on the Certificate Administrator's Internet Website will
be password protected to the same extent, and limited to the same Persons, as
the Restricted Servicer Reports. After the Certificate Administrator shall have
received the notice from the Depositor regarding the sale of the Non-Registered
Certificates, as described in the preceding sentence, the Certificate
Administrator shall make the Distribution Date Statement available to any
interested party via its electronic bulletin board. The Certificate
Administrator shall make the Restricted Servicer Reports available each month,
via the Certificate Administrator's Internet Website, to any Certificateholder,
Certificate Owner, any Person identified by any Certificateholder or Certificate
Owner as a prospective transferee of a Certificate or interest therein, the
Depositor, the Trustee, the Master Servicer, the Special Servicer, the
Underwriters, the Controlling Class Representative or any Rating Agency, with
the use of a password provided by the Certificate Administrator to such person
upon receipt by the Certificate Administrator from such Person of a
certification substantially in the form of Exhibit L-1 or Exhibit L-2, as
applicable; provided that the Certificate Administrator shall provide such
password to each party hereto, the Depositor, the Trustee, the Master Servicer,
the Special Servicer, the Underwriters, the Controlling Class Representative,
and each Rating Agency without requiring such certification; In addition, the
Certificate Administrator is hereby directed and authorized to make available,
as a convenience to interested parties (and not in furtherance of the
distribution of the Prospectus or the Prospectus Supplement under the securities
laws), this Agreement, the Prospectus and the Prospectus Supplement via the
Certificate Administrator's Internet Website. The Certificate Administrator will
make no representations or warranties as to the accuracy or completeness of such
documents and will assume no responsibility therefor.
The Certificate Administrator's Internet Website shall be
located at "www.lnbabs.com" or at such other address as shall be specified by
the Certificate Administrator from time to time in the Distribution Date
Statement and in one or more written notices delivered to the other parties
hereto, the Controlling Class Representative (if any), the Certificateholders
and the Rating Agencies. In connection with providing access to the Certificate
Administrator's Internet Website and electronic bulletin board, the Certificate
Administrator may require registration and the acceptance of a disclaimer. The
Certificate Administrator shall not be liable for the dissemination of
information in accordance with this Agreement.
The Certificate Administrator shall be entitled to rely on but
shall not be responsible for the content or accuracy of any information provided
by third parties for purposes of preparing
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the Distribution Date Statement and may affix thereto any disclaimer it deems
appropriate in its reasonable discretion (without suggesting liability on the
part of any other party hereto).
(b) The Master Servicer may maintain an Internet website at
"www.midlands.com", or such other site as may be specified by any successor
Master Servicer, which may, subject to applicable law, contain the information
and reports required to be produced by the Master Servicer; provided that the
Master Servicer shall not provide the Underwriters with any information
regarding the Certificates, the Trust Fund and/or this Agreement in violation of
Regulation FD. Access by Certificateholders, Certificate Owners, the Controlling
Class Representative, the Depositor and the Rating Agencies may be subject to
registration, using a password and user name.
(c) Within a reasonable period of time after the end of each
calendar year, the Certificate Administrator shall prepare, or cause to be
prepared, and mail to each Person who at any time during the calendar year was a
Certificateholder (i) a statement containing the aggregate information set forth
on page 2 of the Distribution Date Statement, a form of which is attached hereto
as Exhibit E, for such calendar year or applicable portion thereof during which
such person was a Certificateholder and (ii) such other customary information as
the Certificate Administrator deems necessary or desirable for
Certificateholders to prepare their federal, state and local income tax returns,
including the amount of original issue discount accrued on the Certificates, if
applicable. The obligations of the Certificate Administrator in the immediately
preceding sentence shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Certificate
Administrator pursuant to any requirements of the Code. As soon as practicable
following the request of any Certificateholder in writing, the Certificate
Administrator shall furnish to such Certificateholder such information regarding
the Mortgage Loans and the Mortgaged Properties as such Certificateholder may
reasonably request and, as has been furnished to, or may otherwise be in the
possession of, the Certificate Administrator. The Master Servicer and the
Special Servicer shall promptly provide to the Depositor, the Tax Administrator,
the Certificate Administrator and the Trustee such information regarding the
Mortgage Loans and the Mortgaged Properties as such party may reasonably request
and at the requesting party's expense, and that has been furnished to, or may
otherwise be in the possession of, the Master Servicer or the Special Servicer,
as the case may be.
(d) The Master Servicer shall have no obligation to provide
information or reports required pursuant to this Agreement with respect to
Specially Serviced Mortgage Loans and REO Properties until it has received the
requisite information or reports from the Special Servicer, and the Master
Servicer shall not be in default hereunder due to a delay in providing such
information or reports caused by the Special Servicer's failure to deliver the
requisite information or reports.
SECTION 4.03. P&I Advances.
(a) On or before 3:00 p.m., New York City time, on each P&I
Advance Date, the Master Servicer shall, subject to Section 4.03(c), either (i)
deposit into the Distribution Account from its own funds an amount equal to the
aggregate amount of P&I Advances, if any, to be made in respect of the related
Distribution Date, (ii) apply amounts held in the Collection Account for future
distribution to Certificateholders in subsequent months in discharge of any such
obligation to
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make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made; provided
that if Late Collections of any of the delinquent principal and/or interest in
respect of which it is to make P&I Advances on any P&I Advance Date are then on
deposit in the Collection Account, the Master Servicer shall use such Late
Collections (net of any Master Servicing Fees and Workout Fees payable
therefrom) to make such P&I Advances. Any amounts held in the Collection Account
for future distribution and so used to make P&I Advances (other than the Late
Collections of the delinquent principal and/or interest contemplated by the
proviso to the preceding sentence) shall be appropriately reflected in the
Master Servicer's records and replaced by the Master Servicer by deposit in the
Collection Account on or before the next succeeding Determination Date (to the
extent not previously replaced through the deposit of Late Collections of the
delinquent principal and/or interest in respect of which such P&I Advances were
made). If, as of 3:00 p.m., New York City time, on any P&I Advance Date/Master
Servicer Remittance Date, the Master Servicer shall not have made any P&I
Advance required to be made on such date pursuant to this Section 4.03(a) (and
shall not have delivered to the Trustee and the Certificate Administrator the
requisite Officer's Certificate and documentation related to a determination of
nonrecoverability of a P&I Advance pursuant to Section 4.03(c)) or shall not
have remitted any portion of the Master Servicer Remittance Amount required to
be remitted on such date, then the Certificate Administrator shall provide
notice of such failure to the Trustee and the Master Servicer, before 5:00 p.m.,
New York City time, on such P&I Advance Date. If, after such notice, the
Certificate Administrator does not receive the full amount of such P&I Advances
by 11:00 a.m. (New York City time) on the related Distribution Date, then the
Certificate Administrator shall promptly notify the Trustee and, unless the
Trustee determines that such Advance would be a Nonrecoverable P&I Advance if
made, the Trustee shall make the portion of such P&I Advances that was required
to be, but was not, made by the Master Servicer on such P&I Advance Date.
(b) The aggregate amount of P&I Advances to be made by the
Master Servicer in respect of any Distribution Date, subject to Section 4.03(c)
below, shall equal the aggregate of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments, in each case net of any related
Master Servicing Fees and Workout Fees, due or deemed due, as the case may be,
in respect of the Mortgage Loans (including Balloon Mortgage Loans delinquent as
to their respective Balloon Payments) and any REO Mortgage Loans on their
respective Due Dates during the related Collection Period, in each case to the
extent such amount was not paid by or on behalf of the related Borrower or
otherwise collected as of the close of business on the related Determination
Date; provided that, if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, then the interest portion of any P&I Advance required
to be made in respect of such Required Appraisal Loan for the related
Distribution Date shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such P&I Advance) to equal the
product of (i) the amount of the interest portion of such P&I Advance that would
otherwise be required to be made in respect of such Required Appraisal Loan for
such Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which shall equal the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date, net of the related Appraisal Reduction Amount, and the
denominator of which shall equal the Stated Principal Balance of such Required
Appraisal Loan immediately prior to such Distribution Date.
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(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer (or, if applicable, the Trustee or any Fiscal Agent) that it has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
reasonable judgment and shall be evidenced by an Officer's Certificate delivered
to the Depositor, to the Certificate Administrator, to the Special Servicer, to
the Controlling Class Representative and, if made by the Master Servicer, to the
Trustee (on or before the related P&I Advance Date in the case of a proposed P&I
Advance), setting forth the basis for such determination, accompanied by a copy
of an Appraisal of the related Mortgaged Property or REO Property performed
within the 12 months preceding such determination by a Qualified Appraiser, if
available, and further accompanied by any other information, including
engineers' reports, environmental surveys or similar reports, that the Person
making such determination may have obtained and that support such determination.
The Trustee and any Fiscal Agent shall be entitled to conclusively rely on any
nonrecoverability determination made by the Master Servicer with respect to a
particular P&I Advance. The Special Servicer shall promptly furnish any party
required to make P&I Advances hereunder with any information in its possession
regarding the Specially Serviced Mortgage Loans and REO Properties as such party
required to make P&I Advances may reasonably request.
(d) The Master Servicer, the Trustee and any Fiscal Agent
shall each be entitled to receive interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of each P&I Advance made thereby (with
its own funds), for so long as such P&I Advance is outstanding. Such interest
with respect to any P&I Advance shall be payable: (i) first, out of any Default
Interest collected with respect to the entire Mortgage Pool subsequent to the
accrual of such interest up to and including the date on which such P&I Advance
is reimbursed; and (ii) then, after such Advance is reimbursed, but only if and
to the extent that such Default Interest described in the immediately preceding
clause (i) is insufficient to cover such Advance Interest, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account. As and to the extent provided in Section 3.05(a), the Master
Servicer shall reimburse itself, the Trustee or any Fiscal Agent, as applicable,
for any outstanding P&I Advance made thereby as soon as practicable after funds
available for such purpose are deposited in the Collection Account, and in no
event shall interest accrue in accordance with this Section 4.03(d) on any P&I
Advance as to which the corresponding Late Collection was received as of the
related P&I Advance Date. The Master Servicer shall not be entitled to Advance
Interest to the extent a payment is received but is being held by the Master
Servicer in suspense.
SECTION 4.04. Allocation of Realized Losses and Additional
Trust Fund Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Sections 4.01(a) and
4.01(b), the Certificate Administrator shall determine the amount, if any, by
which (i) the then aggregate of the Class Principal Balances of all the Classes
of Principal Balance Certificates, exceeds (ii) the aggregate Stated Principal
Balance of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then the Class Principal Balances
of the Class P, Class N, Class M, Class L, Class K, Class J, Class H, Class G,
Class F, Class E, Class D, Class C and Class B Certificates shall be reduced
sequentially, in that order, until such excess is reduced to zero; provided
that, no such Class
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of Certificates shall have its Class Principal Balance reduced unless and until
the Class Principal Balance of each other Class of Certificates, if any, listed
in front of it has been reduced to zero; and provided, further, that if after
the foregoing reductions, the amount described in clause (i) of the preceding
sentence still exceeds the amount described in clause (ii) of such sentence,
then the respective Class Principal Balances of the Class A-1 and Class A-2
Certificates shall be reduced on a pro rata basis in accordance with the
relative sizes of such Class Principal Balances, until any such remaining excess
is reduced to zero. All such reductions in the Class Principal Balances of the
respective Classes of the Principal Balance Certificates shall constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC II Regular Interests on such
date pursuant to Section 4.01(k), the Certificate Administrator shall determine
the amount, if any, by which (i) the then aggregate Uncertificated Principal
Balance of the REMIC II Regular Interests, exceeds (ii) the aggregate Stated
Principal Balance of the Mortgage Pool that will be outstanding immediately
following such Distribution Date. If such excess does exist, then the
Uncertificated Principal Balances of REMIC II Regular Interest P, REMIC II
Regular Interest N, REMIC II Regular Interest M, REMIC II Regular Interest L,
REMIC II Regular Interest K, REMIC II Regular Interest J, REMIC II Regular
Interest H, REMIC II Regular Interest G, REMIC II Regular Interest F, REMIC II
Regular Interest E, REMIC II Regular Interest D, REMIC II Regular Interest C and
REMIC II Regular Interest B, shall be reduced sequentially, in that order, until
such excess is reduced to zero; provided that, no such REMIC II Regular Interest
shall have its Uncertificated Principal Balance reduced unless and until the
Uncertificated Principal Balance of each other REMIC II Regular Interest, if
any, listed in front of it has been reduced to zero; and provided, further, that
if after the foregoing reductions, the amount described in clause (i) of the
preceding sentence still exceeds the amount described in clause (ii) of such
sentence, then the respective Uncertificated Principal Balances of REMIC II
Regular Interest A-1 and REMIC II Regular Interest A-2 shall be reduced on a pro
rata basis in accordance with the relative sizes of such Uncertificated
Principal Balances, until any such remaining excess is reduced to zero. All such
reductions in the Uncertificated Principal Balances of the respective REMIC II
Regular Interests shall be deemed to constitute allocations of Realized Losses
and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC I Regular Interests pursuant to
Section 4.01(l), the Uncertificated Principal Balance of each REMIC I Regular
Interest (after taking account of such deemed distributions) shall be reduced to
the extent necessary to equal the Stated Principal Balance of the related
Mortgage Loan or REO Mortgage Loan, as the case may be, that will be outstanding
immediately following such Distribution Date. All such reductions in the
Uncertificated Principal Balances of the respective REMIC I Regular Interests
shall be deemed to constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
SECTION 4.05. Calculations.
The Certificate Administrator shall, provided it receives the
necessary information from the Master Servicer and/or Special Servicer, be
responsible for performing all calculations necessary in connection with the
actual and deemed distributions to be made pursuant to Section 4.01, the
preparation of the Distribution Date Statements pursuant to Section 4.02(a) and
the actual
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and deemed allocations of Realized Losses and Additional Trust Fund Expenses to
be made pursuant to Section 4.04. The Certificate Administrator shall calculate
the Standard Available Distribution Amount for each Distribution Date and shall
allocate such amount among Certificateholders in accordance with this Agreement.
Absent actual knowledge of an error therein, the Certificate Administrator shall
have no obligation to recompute, recalculate or otherwise verify any information
provided to it by the Master Servicer. The calculations by the Certificate
Administrator contemplated by this Section 4.05 shall, in the absence of
manifest error, be presumptively deemed to be correct for all purposes
hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective
forms attached hereto as Exhibits A-1 through A-6; provided, however, that any
of the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the Class
X, Class A, Class B, Class C, Class D, Class E, Class F and Class G Certificates
shall initially be held and transferred through the book-entry facilities of the
Depository. The REMIC III Regular Interest Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances (or, in
the case of the Class X Certificates, initial Certificate Notional Amounts) as
of the Closing Date of: (i) in the case of the Class X Certificates, $1,000,000
and any whole dollar denomination in excess thereof; (ii) in the case of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates, $10,000 and any whole dollar denomination in excess thereof; and
(iii) in the case of the other REMIC III Regular Interest Certificates, $100,000
and any whole dollar denomination in excess thereof. The Class R Certificates
and the Class Y Certificates will be issuable only in denominations representing
Percentage Interests in the related Class of not less than 10.0%.
(b) The Certificates shall be executed by manual or facsimile
signature by an authorized officer of the Certificate Registrar on behalf of the
Trustee. Certificates bearing the manual or facsimile signatures of individuals
who were at any time the authorized officers of the Certificate Registrar shall
be entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Administrator may, at its own expense,
appoint any Person with appropriate experience as a securities registrar to act
as Certificate Registrar hereunder; provided that, in the absence of any other
Person appointed in accordance herewith acting as Certificate Registrar, the
Certificate Administrator agrees to act in such capacity in accordance with the
terms hereof. The appointment of a Certificate Registrar shall not relieve the
Certificate Administrator from any of its obligations hereunder, and the
Certificate Administrator shall remain responsible for all acts and omissions of
the Certificate Registrar. The Certificate Registrar shall be
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subject to the same standards of care, limitations on liability and rights to
indemnity as the Certificate Administrator, and the provisions of Sections 8.01,
8.02, 8.03, 8.04, 8.05(b), 8.05(c), 8.05(d) and 8.05(e) shall apply to the
Certificate Registrar to the same extent that they apply to the Certificate
Administrator. Any Certificate Registrar appointed in accordance with this
Section 5.02(a) may at any time resign by giving at least 30 days' advance
written notice of resignation to the Certificate Administrator, the Trustee, the
Master Servicer, the Special Servicer and the Depositor. The Certificate
Administrator may at any time terminate the agency of any Certificate Registrar
appointed in accordance with this Section 5.02(a) by giving written notice of
termination to such Certificate Registrar, with a copy to the Trustee, the
Master Servicer, the Special Servicer and the Depositor.
At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator, the Trustee and the Tax Administrator shall have the right to
inspect the Certificate Register or to obtain a copy thereof at all reasonable
times, and to rely conclusively upon a certificate of the Certificate Registrar
as to the information set forth in the Certificate Register.
If any Certificateholder makes written request to the
Certificate Registrar, and such request states that such Certificateholders
desires to communicate with other Certificateholders with respect to their
rights under this Agreement or under the Certificates and is accompanied by a
copy of the communication that such Certificateholder proposes to transmit, then
the Certificate Registrar shall, within 30 days after the receipt of such
request, afford the requesting Certificateholder access during normal business
hours to, or deliver to the requesting Certificateholder a copy of, the most
recent list of Certificateholders held by the Certificate Registrar (which list
shall be current as of a date no earlier than 30 days prior to the Certificate
Registrar's receipt of such request). Every Certificateholder, by receiving such
access, acknowledges that neither the Certificate Registrar nor the Trustee will
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of any Certificateholder regardless of the source
from which such information was derived.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a transfer of any Non-Registered Certificate that
constitutes a Definitive Certificate is to be made without registration under
the Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of any Non-Registered Certificate by the Depositor or
an Affiliate of the Depositor or a transfer of a Book-Entry Non-Registered
Certificate to a successor Depository as contemplated by Section 5.03(c)), then
the Certificate Registrar shall refuse to register such transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached hereto as Exhibit F-1A; or (ii) a certificate
from the Certificateholder desiring to
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effect such transfer substantially in the form attached hereto as Exhibit F-1B
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached hereto either as Exhibit F-2A or as Exhibit
F-2B; or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust or
of the Depositor, the Master Servicer, the Special Servicer, the Tax
Administrator, the Certificate Administrator, the Trustee, any Fiscal Agent or
the Certificate Registrar in their respective capacities as such), together with
the written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
If a transfer of an interest in any Class X Certificate that
constitutes a Book-Entry Certificate is to be made without registration under
the Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of an interest in a Class X Certificate by the
Depositor or an Affiliate of the Depositor), then the Certificate Owner desiring
to effect such transfer shall require from its prospective Transferee: (i) a
certificate substantially in the form attached either as Exhibit F-2C hereto or
as Exhibit F-2D hereto; or (ii) an Opinion of Counsel to the effect that such
transfer may be made without registration under the Securities Act.
None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify any Class of Non-Registered
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer, sale, pledge or other disposition of any Non-Registered Certificate or
interest therein shall, and does hereby agree to, indemnify the Depositor, SSB,
GCM, the Trustee, any Fiscal Agent, the Master Servicer, the Special Servicer,
the Tax Administrator, Certificate Administrator and the Certificate Registrar
against any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
(c) No transfer of any Certificate or interest therein shall
be made (A) to any retirement plan or other employee benefit plan, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of such Certificate or interest therein by the prospective Transferee
would result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or would result in the imposition of an excise tax under Section 4975
of the Code.
Except in connection with the initial issuance of the
Certificates or any transfer of a Certificate or interest therein by the
Depositor or an Affiliate of the Depositor or any transfer of a Book-Entry
Certificate to a successor Depository as contemplated by Section 5.03(c), the
Certificate Registrar shall refuse to register the transfer of a non-Investment
Grade Certificate or a Non-Registered Certificate that constitutes a Definitive
Certificate unless it has received from the prospective Transferee, either (i) a
certification to the effect that such prospective Transferee is not
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a Plan and is not directly or indirectly purchasing such Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and continued holding of such
Certificate by such prospective Transferee is exempt from the prohibited
transaction provisions of Sections 406(a) and (b) and 407 of ERISA and the
excise taxes on such prohibited transactions imposed under Section 4975 of the
Code, under Sections I and III of Prohibited Transaction Class Exemption 95-60;
or (iii) in the case of a Certificate that is both an Investment Grade
Certificate and a Non-Registered Certificate and that is being acquired by or on
behalf of a Plan in reliance on the Underwriter Exemption, a certification to
the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Certificate
Administrator, the Tax Administrator, the Depositor, any Mortgage Loan Seller,
the Master Servicer, the Special Servicer, any Sub-Servicer or any Borrower with
respect to Mortgage Loans constituting 5% of the aggregate unamortized principal
of all the Mortgage Loans determined as of the Closing Date, or by any Affiliate
of any of the foregoing Persons, and (Z) agrees that it will obtain from each of
its Transferees a written representation that such Transferee, if a Plan,
satisfies the requirements of the immediately preceding clauses (iii)(X) and
(iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y); or (iv) a certification of facts and an Opinion of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee, the
Certificate Registrar or the Trust) which otherwise establish to the reasonable
satisfaction of the Certificate Registrar that such transfer will not result in
a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code. It is hereby
acknowledged that the form of certification attached hereto as Exhibit G-1 is
acceptable for purposes of the preceding sentence.
Except in connection with the initial issuance of the
Certificates or any transfer of an interest in a Book-Entry Certificate by the
Depositor or an Affiliate of the Depositor, the Certificate Owner desiring to
effect a transfer of an interest in a Book-Entry Non-Registered Certificate
shall obtain from its prospective Transferee either (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing such interest in such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; (ii) a certification to
the effect that the purchase and continued holding of such Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Sections 406(a) and (b) and 407 of ERISA and the excise taxes on such prohibited
transactions imposed under Section 4975 of the Code, under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) if such Certificate is an
Investment Grade Certificate and such interest in such Certificate is being
acquired by or on behalf of a Plan in reliance on an Underwriter Exemption, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer or any Borrower with respect to Mortgage Loans constituting 5%
of the aggregate unamortized principal of all the Mortgage Loans determined as
of the Closing Date, or by any Affiliate of any of the foregoing Persons, and
(Z) agrees that it will obtain from each of its Transferees a written
representation that such Transferee, if a Plan, satisfies the requirements of
the immediately preceding clauses (ii)(X) and (ii)(Y), together with a written
agreement that such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (ii)(X) and (ii)(Y);
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or (iii) a certification of facts and an Opinion of Counsel to the effect that
such transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or result in the imposition of an excise tax under Section 4975
of the Code. It is hereby acknowledged that the form of certification attached
hereto as Exhibit G-2 is acceptable for purposes of the preceding sentence.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Class R Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii)(A) below to deliver or cause the delivery of payments to a Person other
than such Person and to have irrevocably authorized the Trustee under clause
(ii)(B) below to negotiate the terms of any mandatory disposition and to execute
all instruments of Transfer and to do all other things necessary in connection
with any such disposition. The rights of each Person acquiring any Ownership
Interest in a Class R Certificate are expressly subject to the following
provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall be a Permitted
Transferee and shall promptly notify the Tax Administrator and
the Trustee of any change or impending change in its status as
a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Class R Certificate, the Certificate
Registrar shall require delivery to it, and shall not register
the Transfer of any Class R Certificate until its receipt, of
an affidavit and agreement substantially in the form attached
hereto as Exhibit H-1 (a "Transfer Affidavit and Agreement"),
from the proposed Transferee, representing and warranting,
among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in
the Class R Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is
not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Class R Certificate it will endeavor
to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 5.02(d) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under clause
(B) above, if a Responsible Officer of either the Trustee or
the Certificate Registrar has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no Transfer
of an Ownership Interest in a Class R Certificate to such
proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its
Ownership Interest in such Class R Certificate and (2) not to
transfer its Ownership Interest in such Class R Certificate
unless it provides to the Certificate Registrar and the
Trustee a certificate substantially in the form attached
hereto as Exhibit H-2 stating that, among other things, it has
no actual knowledge that such prospective Transferee is not a
Permitted Transferee.
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(E) Each Person holding or acquiring an Ownership
Interest in a Class R Certificate, by purchasing such
Ownership Interest, agrees to give the Tax Administrator and
the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Class R Certificate if it is, or is
holding an Ownership Interest in a Class R Certificate on
behalf of, a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Class R Certificate
that was in compliance with the provisions of this Section 5.02(d)
shall be restored, to the extent permitted by law, to all rights as
Holder thereof retroactive to the date of registration of such Transfer
of such Class R Certificate. None of the Depositor, the Trustee or the
Certificate Registrar, shall be under any liability to any Person for
any registration of Transfer of a Class R Certificate that is in fact
not permitted by this Section 5.02(d) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder
of a Class R Certificate in violation of the restrictions in
this Section 5.02(d), then, to the extent that retroactive
restoration of the rights of the preceding Holder of such
Class R Certificate as described in clause (ii) (A) above
shall be invalid, illegal or unenforceable, the Trustee shall
have the right but not the obligation, to cause the transfer
of such Class R Certificate to a Permitted Transferee selected
by the Trustee on such terms as the Trustee may choose, and
the Trustee shall not be liable to any Person having an
Ownership Interest in such Class R Certificate or any other
Person as a result of its exercise of such discretion. Such
purported Transferee shall promptly endorse and deliver such
Class R Certificate in accordance with the instructions of the
Trustee. Such Permitted Transferee may be the Trustee itself
or any Affiliate of the Trustee.
(iii) The Tax Administrator shall make available to the IRS
and to those Persons specified by the REMIC Provisions all information
furnished to it by the other parties hereto necessary to compute any
tax imposed (A) as a result of the Transfer of an Ownership Interest in
a Class R Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of the REMIC I Residual Interest, the REMIC II Residual
Interest and the REMIC III Residual Interest and (B) as a result of any
regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a Class R
Certificate having as among its record holders at any time any Person
which is a Disqualified Organization, and each of the other parties
hereto shall furnish to the Tax Administrator all information in its
possession necessary for the Tax Administrator to discharge such
obligation. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the Tax Administrator
for providing such information.
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(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated, provided that
there shall have been delivered to the Trustee and the Tax
Administrator the following:
(A) written confirmation from each Rating Agency to
the effect that the modification of, addition to or
elimination of such provisions will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates;
and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee and the Tax Administrator,
obtained at the expense of the party seeking such modification
of, addition to or elimination of such provisions (but in no
event at the expense of the Trustee, the Tax Administrator or
the Trust), to the effect that doing so will not (1) cause any
REMIC Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of any Class R
Certificate to a Person which is not a Permitted Transferee or
(2) cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a
Class R Certificate to a Person that is not a Permitted
Transferee.
(e) The Trust has not been registered as an investment company
under the Investment Company Act. Accordingly, no transfer of any Class H, Class
J, Class K, Class L, Class M, Class N, Class P or Class Y Certificate shall be
made to any Person other than an Institutional Accredited Investor or a
Qualified Institutional Buyer, and no transfer of any Class R Certificate shall
be made to any Person other than a Qualified Institutional Buyer. If a transfer
of any such Certificate is to be made, then the Certificate Registrar shall
require, in order to assure compliance with the foregoing, that the prospective
transferee of such Certificate (or the transferor on its behalf) certify in
writing that the prospective transferee is a Qualified Institutional Buyer or,
alternatively, but solely in the case of a Class H, Class J, Class K, Class L,
Class M, Class N, Class P or Class Y Certificate, an Institutional Accredited
Investor.
(f) If a Person is acquiring any Subordinate or Class Y
Certificate as a fiduciary or agent for one or more accounts, such Person shall
be required to deliver to the Certificate Registrar a certification to the
effect that, and such other evidence as may be reasonably required by the
Certificate Registrar to confirm that, it has (i) sole investment discretion
with respect to each such account and (ii) full power to make the applicable
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as set forth in subsections (b),
(c), (d) and/or (e), as appropriate, of this Section 5.02.
(g) Subject to the preceding provisions of this Section 5.02,
upon surrender for registration of transfer of any Certificate at the offices of
the Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(h) At the option of any Holder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
evidencing a like aggregate Percentage Interest, upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the
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Certificate Registrar shall execute, authenticate and deliver the Certificates
which the Certificateholder making the exchange is entitled to receive.
(i) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(j) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
(k) All Certificates surrendered for transfer and exchange
shall be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall dispose of such canceled Certificates in accordance with its
standard procedures.
(l) The Certificate Registrar shall provide to each of the
other parties hereto, upon reasonable written request and at the expense of the
requesting party, an updated copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) The Class X, Class A, Class B, Class C, Class D, Class E,
Class F and Class G Certificates shall, in the case of each Class thereof,
initially be issued as one or more Certificates registered in the name of the
Depository or its nominee and, except as provided in Section 5.03(c), transfer
of such Certificates may not be registered by the Certificate Registrar unless
such transfer is to a successor Depository that agrees to hold such Certificates
for the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and, subject to Section 5.02(c), transfer their
respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in Section
5.03(c) below, shall not be entitled to fully registered, physical Certificates
("Definitive Certificates") in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner. Each Depository Participant shall only transfer the
Ownership Interests in the Book-Entry Certificates of Certificate Owners it
represents or of indirect participating brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
(b) The Depositor, the Master Servicer, the Special Servicer,
the Certificate Administrator, the Tax Administrator, the Trustee, any Fiscal
Agent and the Certificate Registrar may for all purposes, including the making
of payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and indirect
participating brokerage firms representing such Certificate Owners. Multiple
requests and
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directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Trustee may establish a reasonable record date in connection with solicitations
of consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the
Certificate Administrator and the Certificate Registrar in writing that the
Depository is no longer willing or able to discharge properly its
responsibilities as depository with respect to any Class of Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee, the Certificate
Administrator and the Certificate Registrar in writing that it elects to
terminate the book-entry system through the Depository with respect to any Class
of Book-Entry Certificates (or any portion of any Class thereof), the
Certificate Registrar shall notify all affected Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to such Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of any Class of Book-Entry Certificates
(or any portion of any Class thereof) by the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Certificate Registrar shall execute, authenticate and deliver, the Definitive
Certificates in respect of such Class (or portion thereof) to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Certificate Administrator, the Tax
Administrator, the Trustee or the Certificate Registrar shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Book-Entry
Certificates, the registered holders of such Definitive Certificates shall be
recognized as Certificateholders hereunder and, accordingly, shall be entitled
directly to receive payments on, to exercise Voting Rights with respect to, and
to transfer and exchange such Definitive Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of actual notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Certificate Registrar shall execute, authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and like Percentage Interest. Upon the issuance of
any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the reasonable fees and expenses of the Trustee
and the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
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SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator, the Tax Administrator, the Trustee, any Fiscal Agent, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever, and none of the Depositor, the Master Servicer, the Special
Servicer, the Certificate Administrator, the Tax Administrator, the Trustee, any
Fiscal Agent, the Certificate Registrar or any agent of any of them shall be
affected by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the transfer requirements of Section 5.02(c).
(b) To the extent that under the terms of this Agreement, it
is necessary to determine whether any Person is a Certificate Owner, the
Certificate Administrator shall make such determination based on a certificate
of such Person which shall be substantially in the form of paragraph 1 of
Exhibit L-1 hereto (or such other form as shall be reasonably acceptable to the
Certificate Administrator) and shall specify the Class and Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of the Book-Entry
Certificate beneficially owned; provided, however, that none of the Trustee, the
Certificate Administrator or the Certificate Registrar shall knowingly recognize
such Person as a Certificate Owner if such Person, to the actual knowledge of a
Responsible Officer of the Trustee, the Certificate Administrator or the
Certificate Registrar, as the case may be, acquired its Ownership Interest in a
Book-Entry Certificate in violation of Section 5.02(c), or if such Person's
certification that it is a Certificate Owner is in direct conflict with
information known by, or made known to, the Trustee, the Certificate
Administrator or the Certificate Registrar, with respect to the identity of a
Certificate Owner. The Trustee, the Certificate Administrator and the
Certificate Registrar shall each exercise its reasonable discretion in making
any determination under this Section 5.06(b) and shall afford any Person
providing information with respect to its beneficial ownership of any Book-Entry
Certificate an opportunity to resolve any discrepancies between the information
provided and any other information available to the Trustee, the Certificate
Administrator or the Certificate Registrar, as the case may be.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER
AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer
and the Special Servicer.
The Depositor, the Master Servicer and the Special Servicer
shall be liable in accordance herewith only to the extent of the respective
obligations specifically imposed upon and undertaken by the Depositor, the
Master Servicer and the Special Servicer.
SECTION 6.02. Merger, Consolidation or Conversion of the
Depositor, the Master Servicer or the Special
Servicer.
Subject to the following paragraph, each of the Depositor, the
Master Servicer and the Special Servicer shall each keep in full effect its
existence, rights and franchises as a corporation, bank, trust company,
partnership, limited liability company, association or other legal entity under
the laws of the jurisdiction wherein it was organized, and each shall obtain and
preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Each of the Depositor, the Master Servicer and the Special
Servicer may be merged or consolidated with or into any Person, or transfer all
or substantially all of its assets to any Person, in which case, any Person
resulting from any merger or consolidation to which the Depositor, the Master
Servicer or the Special Servicer shall be a party, or any Person succeeding to
the business of the Depositor, the Master Servicer or the Special Servicer,
shall be the successor of the Depositor, the Master Servicer or the Special
Servicer, as the case may be, hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that no successor or
surviving Person shall succeed to the rights of the Master Servicer or the
Special Servicer unless such succession will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the
Master Servicer, and the Special Servicer.
None of the Depositor, the Master Servicer, the Special
Servicer or any director, manager, member, officer, employee or agent of any of
the foregoing shall be under any liability to the Trust or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer, the Special
Servicer or any such other Person against any breach of a representation or
warranty made herein, or against any expense or liability specifically required
to be borne thereby pursuant to the terms hereof, or against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of obligations
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or duties hereunder, or by reason of negligent disregard of such obligations and
duties. The Depositor, the Master Servicer, the Special Servicer and any
director, officer, manager, member, employee or agent of any of the foregoing
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, the Special Servicer and any
director, officer, manager, member, employee or agent of any of the foregoing
shall be indemnified and held harmless by the Trust out of the Collection
Account against any loss, liability or reasonable out-of-pocket expense incurred
in connection with any legal action relating to this Agreement, the Certificates
or any asset of the Trust, other than any such loss, liability or expense: (i)
specifically required to be borne thereby pursuant to the terms hereof,
including Section 10.01(f); (ii) that constitutes a Servicing Advance and is
otherwise reimbursable pursuant to this Agreement (provided that this clause
(ii) is not intended to limit the Master Servicer's or Special Servicer's right
of recovery of liabilities and expenses incurred as a result of being the
defendant, or participating in a proceeding to which another indemnified party
under this Section 6.03 is a defendant, in legal action relating to this
Agreement); or (iii) which was incurred in connection with claims against such
party resulting from (A) any breach of a representation or warranty made herein
by such party, or (B) willful misfeasance, bad faith or negligence in the
performance of obligations or duties hereunder by such party, or from negligent
disregard of such obligations or duties. None of the Depositor, the Master
Servicer or the Special Servicer shall be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and, except in the case of a legal action
contemplated by Section 3.22, in its opinion does not involve it in any ultimate
expense or liability; provided, however, that the Depositor, the Master Servicer
or the Special Servicer may in its discretion undertake any such action which it
may reasonably deem necessary or desirable with respect to the enforcement
and/or protection of the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the legal expenses
and costs of such action, and any liability resulting therefrom, shall be
expenses, costs and liabilities of the Trust, and the Depositor, the Master
Servicer and the Special Servicer each shall be entitled to the direct payment
of such expenses or to be reimbursed therefor from the Collection Account as
provided in Section 3.05(a).
SECTION 6.04. Master Servicer and Special Servicer Not to
Resign.
The Master Servicer and the Special Servicer may each resign
from the obligations and duties hereby imposed on it, upon a determination that
its duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it (the other activities of the Master Servicer or the Special Servicer,
as the case may be, so causing such a conflict being of a type and nature
carried on by the Master Servicer or the Special Servicer, as the case may be,
at the date of this Agreement). Any such determination requiring the resignation
of the Master Servicer or the Special Servicer, as applicable, shall be
evidenced by an Opinion of Counsel to such effect which shall be delivered to
the Trustee, with a copy to the Certificate Administrator. Unless applicable law
requires the Master Servicer's or the Special Servicer's (as the case may be)
resignation to be effective immediately, and the Opinion of Counsel delivered
pursuant to the prior sentence so states, no such resignation shall become
effective until the Trustee or other successor shall have assumed the
responsibilities and obligations of the resigning party in accordance with
Section 6.06 or Section 7.02 hereof; provided that, if no successor master
servicer or special servicer, as applicable, shall have been so appointed and
have accepted appointment within 90 days after the Master Servicer or Special
Servicer, as the
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case may be, has given notice of such resignation, the resigning Master Servicer
or Special Servicer, as applicable, may petition any court of competent
jurisdiction for the appointment of a successor master servicer or special
servicer, as applicable.
In addition, the Master Servicer and the Special Servicer
shall each have the right to resign or assign its servicing rights at any other
time provided that (i) a willing successor thereto (including any such successor
proposed by the resigning party) has been found, (ii) each of the Rating
Agencies confirms in writing that the successor's appointment will not result in
an Adverse Rating Event with respect to any Class of Rated Certificates, (iii)
the resigning party pays all costs and expenses in connection with such
transfer, and (iv) the successor accepts appointment prior to the effectiveness
of such resignation or assignment.
Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, none of the Master Servicer or the Special
Servicer shall (except in connection with any resignation thereby permitted
pursuant to the prior paragraph or as otherwise expressly provided herein,
including the provisions of Section 3.22 and/or Section 6.02) assign or transfer
any of its rights, benefits or privileges hereunder to any other Person.
SECTION 6.05. Rights of the Depositor and the Trustee in
Respect of the Master Servicer and the Special
Servicer.
Upon reasonable request, the Master Servicer and the Special
Servicer shall each furnish the Depositor and the Certificate Administrator with
its most recent publicly available annual audited financial statements (or, if
not available, the most recent publicly available audited annual financial
statements of its corporate parent, on a consolidated basis) and such other
information as is publicly available regarding its business, affairs, property
and condition, financial or otherwise; provided that none of the Depositor, the
Certificate Administrator or the Trustee may disclose the contents of such
financial statements or other information to non-affiliated third parties (other
than accountants, attorneys, financial advisors and other representatives
retained to help it evaluate such financial statements or other information),
unless it is required to do so under applicable securities laws or is otherwise
compelled to do so as a matter of law. The Master Servicer and the Special
Servicer may each affix to any such information described in this Section 6.05
provided by it any disclaimer it deems appropriate in its reasonable discretion.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Master Servicer or the Special Servicer hereunder or exercise the rights of the
Master Servicer or the Special Servicer hereunder; provided, however, that none
of the Master Servicer or the Special Servicer shall be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer or the Special Servicer and is
not obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
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SECTION 6.06. Designation of Special Servicer by the
Controlling Class.
The Holder or Holders of Certificates representing more than
50% of the Class Principal Balance of the Controlling Class may at any time and
from time to time designate a Person (other than the Trustee) to replace any
existing Special Servicer or any Special Servicer that has resigned or otherwise
ceased to serve as Special Servicer. Such Holder or Holders shall so designate a
Person to so serve as successor Special Servicer by the delivery to the Trustee,
the Certificate Administrator, the Master Servicer and the existing Special
Servicer of a written notice stating such designation. The Trustee shall,
promptly after receiving any such notice, deliver to the Rating Agencies an
executed Notice and Acknowledgment in the form attached hereto as Exhibit I-1.
The designated Person shall become the Special Servicer on the date as of which
the Trustee shall have received: (i) written confirmation from each of the
Rating Agencies that the appointment of such Person will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates; (ii) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person; and (iii) an Opinion of Counsel
(which shall not be an expense of the Trustee or the Trust) substantially to the
effect that (A) the designation of such Person to serve as Special Servicer is
in compliance with this Section 6.06, (B) the designated Person is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (C) the Acknowledgment of Proposed Special
Servicer has been duly authorized, executed and delivered by the designated
Person and (D) upon the execution and delivery of the Acknowledgment of Proposed
Special Servicer, the designated Person shall be bound by the terms of this
Agreement and, subject to customary bankruptcy and insolvency exceptions and
customary equity exceptions, that this Agreement shall be enforceable against
the designated Person in accordance with its terms. Any existing Special
Servicer shall be deemed to have been terminated simultaneously with such
designated Person's becoming the Special Servicer hereunder; provided that (i)
the terminated Special Servicer shall be entitled to receive, in connection with
its termination, payment out of the Certificate Account of all of its accrued
and unpaid Special Servicing Fees and reimbursement from the successor Special
Servicer of all outstanding Servicing Advances made by the terminated Special
Servicer and all unpaid Advance Interest accrued on such outstanding Servicing
Advances (in which case the successor Special Servicer shall be deemed to have
made such Servicing Advances at the same time that the terminated Special
Servicer had actually made them), (ii) the resigning or terminated Special
Servicer shall be entitled to any Workout Fees thereafter received on any
Mortgage Loans that were Corrected Mortgage Loans at the time of the termination
(but only if and to the extent permitted by Section 3.11(c)), and (iii) such
Special Servicer shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such resignation or termination; and provided, further, that
the terminated Special Servicer shall continue to be obligated to pay and
entitled to receive all other amounts accrued or owing by or to it under this
Agreement on or prior to the effective date of such termination. Such terminated
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the transfer of the terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two Business Days to the replacement Special Servicer for administration
by it of all cash amounts that at the time are or should have been credited by
the Special Servicer to the REO Account or to any Servicing Account or Reserve
Account or should have been delivered to the Master Servicer or that are
thereafter received by or on behalf of it with respect to any Mortgage Loan or
REO Property. If the termination of the Special Servicer was without cause, the
reasonable out-of-pocket costs and expenses of any such transfer shall in no
event be paid out of the Trust Fund, and instead shall be paid by the successor
Special Servicer or
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the Holders of the Controlling Class that voted to remove the Special Servicer,
as such parties may agree. If the Controlling Class of Certificates are
Book-Entry Certificates, then the rights set forth in this Section 6.06 with
respect to replacing the Special Servicer may be exercised by the related
Certificate Owners holding beneficial ownership of Certificates representing
more than 50% of the Class Principal Balance of the Controlling Class.
SECTION 6.07. Master Servicer or Special Servicer as Owner of
a Certificate.
The Master Servicer or an Affiliate of the Master Servicer or
the Special Servicer or an Affiliate of the Special Servicer may become the
Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner with
respect to) any Certificate with (except as otherwise set forth in the
definition of "Certificateholder") the same rights it would have if it were not
the Master Servicer or the Special Servicer, as the case may be, or an Affiliate
thereof. If, at any time during which the Master Servicer or the Special
Servicer or an Affiliate of the Master Servicer or the Special Servicer is the
Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner with
respect to) any Certificate, the Master Servicer or the Special Servicer
proposes to take any action (including for this purpose, omitting to take a
particular action) that is not expressly prohibited by the terms hereof and
would not, in the Master Servicer's or the Special Servicer's reasonable
judgment, violate the Servicing Standard, but that, if taken, might nonetheless,
in the Master Servicer's or the Special Servicer's reasonable judgment, be
considered by other Persons to violate the Servicing Standard, then the Master
Servicer or the Special Servicer may (but need not) seek the approval of the
Certificateholders to such action by delivering to the Certificate Administrator
(with a copy to the Trustee) a written notice that (a) states that it is
delivered pursuant to this Section 6.07, (b) identifies the Percentage Interest
in each Class of Certificates beneficially owned by the Master Servicer or the
Special Servicer, as the case may be, or by an Affiliate thereof and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer, as the case may be, proposes to take. The Certificate
Administrator, upon receipt of such notice, shall forward it to the
Certificateholders (other than the Master Servicer and its Affiliates or the
Special Servicer and its Affiliates, as appropriate), together with a request
for approval by the Certificateholders of each such proposed action. If at any
time Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Master Servicer or its Affiliates or the Special Servicer or its
Affiliates, as the case may be) shall have consented in writing to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer, as the case may be, shall act as proposed in the written notice, such
action shall be deemed to comply with the Servicing Standard. The Certificate
Administrator shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, for the reasonable expenses of the Certificate
Administrator incurred pursuant to this paragraph. It is not the intent of the
foregoing provision that the Master Servicer or the Special Servicer be
permitted to invoke the procedure set forth herein with respect to routine
servicing matters arising hereunder, but rather in the case of unusual
circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of
the following events:
(i) any failure by the Master Servicer to deposit into the
Collection Account any amount required to be so deposited under this
Agreement, which failure continues unremedied for one Business Day
following the date on which such deposit was first required to be made;
or
(ii) any failure by the Special Servicer to deposit into the
REO Account or the Collection Account, or to remit to the Master
Servicer for deposit into the Collection Account, any amount required
to be so deposited or remitted under this Agreement, which failure
continues unremedied for one Business Day following the date on which
such deposit or remittance, as the case may be, was first required to
be made; or
(iii) any failure by the Master Servicer to remit to the
Certificate Administrator for deposit into the Distribution Account, on
any P&I Advance Date, the full amount of P&I Advances required to be
made on such date or, on any Master Servicer Remittance Date, the full
amount of the Master Servicer Remittance Amount required to be remitted
on such date, which failure continues unremedied until 11:00 a.m. (New
York City time) on the relevant Distribution Date; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of three Business Days following
the date on which notice shall have been given to the Master Servicer
by the Trustee as provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely make (or
request the Master Servicer to make) any Servicing Advance required to
be made by it hereunder, which Servicing Advance remains unmade for a
period of three Business Days following the date on which notice has
been given to the Special Servicer by the Trustee as provided in
Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any
other of the covenants or agreements on the part of the Master Servicer
or the Special Servicer, as the case may be, contained in this
Agreement, which failure continues unremedied for a period of 60 days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer or
the Special Servicer, as the case may be, by any other party hereto or
to the Master Servicer or the Special Servicer, as the case may be,
(with a copy to each other party hereto) by the Holders of Certificates
entitled to at least 25% of the Voting Rights, provided, however, that
with respect to any such breach which is not curable within
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such 30-day period, the Master Servicer or the Special Servicer, as the
case may be, shall have an additional cure period of 30 days to effect
such cure so long as the Master Servicer or the Special Servicer, as
the case may be, has commenced to cure such failure within the initial
30-day period and has provided the Trustee with an Officer's
Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(vii) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any
Class of Certificateholders and which continues unremedied for a period
of 60 days after the date on which notice of such breach, requiring the
same to be remedied, shall have been given to the Master Servicer or
the Special Servicer, as the case may be, by any other party hereto or
to the Master Servicer or the Special Servicer, as the case may be,
(with a copy to each other party hereto) by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(viii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Master Servicer or the Special Servicer and such
decree or order shall have remained in force undischarged, undismissed
or unstayed for a period of 60 days; or
(ix) the Master Servicer or the Special Servicer shall consent
to the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to it or of or relating to all or substantially all of its
property; or
(x) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(xi) the Trustee shall have received written notice from
Moody's that the continuation of the Master Servicer or the Special
Servicer in such capacity would result or has resulted in a
qualification, downgrade or withdrawal of any rating assigned thereby
to any Class of Certificates; or
(xii) the Master Servicer or the Special Servicer is removed
from S&P's approved master servicer list or special servicer list, as
the case may be, and the ratings of any of the Certificates by S&P are
downgraded, qualified or withdrawn, or placed on "negative credit
watch", in connection with such removal.
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When a single entity acts as Master Servicer and Special
Servicer, or in any two of the foregoing capacities, an Event of Default (other
than an event described in clauses (xi) and (xii) above) in one capacity shall
constitute an Event of Default in both such capacities.
(b) If any Event of Default with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") shall occur and be continuing, then, and in
each and every such case, so long as the Event of Default shall not have been
remedied, the Depositor and Trustee each may, and at the written direction of
the Holders of Certificates entitled to a majority of the Voting Rights, the
Trustee shall (subject to applicable bankruptcy or insolvency law in the case of
clauses (viii) through (x) of Section 7.01(a)), terminate, by notice in writing
to the Defaulting Party (with a copy of such notice to each other party hereto),
all of the rights and obligations (accruing from and after such notice) of the
Defaulting Party under this Agreement and in and to the Trust Fund (other than
as a Holder of any Certificate). From and after the receipt by the Defaulting
Party of such written notice, all authority and power of the Defaulting Party
under this Agreement, whether with respect to the Certificates (other than as a
Holder of any Certificate) or the Mortgage Loans or otherwise, shall pass to and
be vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Each of the Master Servicer and the Special Servicer agrees that, if
it is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee or its designee with all documents and records
requested thereby to enable the Trustee to assume the Master Servicer's or
Special Servicer's, as the case may be, functions hereunder, and shall otherwise
cooperate with the Trustee in effecting the termination of the Master Servicer's
or Special Servicer's, as the case may be, responsibilities and rights
hereunder, including the transfer within two Business Days to the Trustee or its
designee for administration by it of all cash amounts that at the time are or
should have been credited by the Master Servicer to the Collection Account, the
Distribution Account or any Servicing Account or Reserve Account held by it (if
it is the Defaulting Party) or by the Special Servicer to the REO Account, the
Collection Account or any Servicing Account or Reserve Account held by it (if it
is the Defaulting Party) or that are thereafter received by or on behalf of it
with respect to any Mortgage Loan or REO Property (provided, however, that the
Master Servicer and the Special Servicer each shall, if terminated pursuant to
this Section 7.01(b), continue to be obligated to pay and entitled to receive
all amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, whether in respect of Advances or otherwise, and it
and its directors, officers, employees and agents shall continue to be entitled
to the benefits of Section 6.03 notwithstanding any such termination). Any costs
or expenses (including those of any other party hereto) incurred in connection
with any actions to be taken by the Master Servicer or Special Servicer pursuant
to this paragraph shall be borne by the Master Servicer or Special Servicer, as
the case may be (and, in the case of the Trustee's costs and expenses, if not
paid within a reasonable time, shall be borne by the Trust out of the Collection
Account).
(c) In the event that the Master Servicer remits to the
Certificate Administrator for deposit into the Distribution Account, on or after
any Distribution Date, the full or any partial
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amount of P&I Advances required to be made in respect of such Distribution Date,
or the full or any partial amount of the Master Servicer Remittance Amount
required to be remitted for distribution on such Distribution Date, then the
Master Servicer shall in addition remit to the Certificate Administrator
interest on the late remittance at the Prime Rate from and including the
applicable P&I Advance Date or Master Servicer Remittance Date, as the case may
be, to but not including the date on which the late remittance is received.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special
Servicer resigns pursuant to the first paragraph of Section 6.04 or receives a
notice of termination pursuant to Section 7.01, the Trustee shall, subject to
Section 6.06, be the successor in all respects to the Master Servicer or the
Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Master Servicer or the Special Servicer, as the
case may be, by the terms and provisions hereof, including, if the Master
Servicer is the resigning or terminated party, the Master Servicer's obligation
to make P&I Advances; provided, however, that any failure to perform such duties
or responsibilities caused by the Master Servicer's or the Special Servicer's,
as the case may be, failure to cooperate or to provide information or monies as
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation (exclusive, if applicable,
of the Excess Servicing Fees) which the resigning or terminated party would have
been entitled to for future services rendered if the resigning or terminated
party had continued to act hereunder. Notwithstanding the above, if it is
unwilling to so act, the Trustee may (and, if it is unable to so act, or if the
Trustee is not approved as an acceptable master servicer or special servicer, as
the case may be, by each Rating Agency, or if the Holders of Certificates
entitled to a majority of all the Voting Rights so request in writing), the
Trustee shall, subject to Section 6.06 (if applicable), promptly appoint, or
petition a court of competent jurisdiction to appoint, any established and
qualified institution with a net worth of at least $10 million as the successor
to the Master Servicer or the Special Servicer, as the case may be, hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer or the Special Servicer, as the case may be, hereunder;
provided, however, that such appointment does not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency). No appointment of a successor to the
Master Servicer or the Special Servicer hereunder shall be effective until the
assumption by such successor of all its responsibilities, duties and liabilities
hereunder, and pending such appointment and assumption, the Trustee shall act in
such capacity as hereinabove provided. In connection with any such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
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If the Trustee or an Affiliate acts pursuant to this Section
7.02 as successor to the Master Servicer, it may reduce the Excess Servicing Fee
Rate to the extent that its or such Affiliate's compensation as successor Master
Servicer would otherwise be below the market rate servicing compensation. If the
Trustee elects to appoint a successor to the Master Servicer other than itself
or an Affiliate pursuant to this Section 7.02, it may reduce the Excess
Servicing Fee Rate to the extent reasonably necessary (in the sole discretion of
the Trustee) for the Trustee to appoint a qualified successor Master Servicer
that meets the requirements of this Section 7.02.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 6.02, 6.04 or 7.02
or the effectiveness of any designation of a new Special Servicer pursuant to
Section 6.06, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of (i) 60 days after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an Event of Default and (ii) five days after a
Responsible Officer of the Trustee has actual knowledge of the occurrence of
such an event, the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of
the Voting Rights allocated to each Class of Certificates affected by any Event
of Default hereunder may waive such Event of Default; provided, that an Event of
Default under clause (i), clause (ii), clause (iii), clause (xi) or clause (xii)
of Section 7.01(a) may be waived only by all of the Certificateholders; and
provided, further, that if the Trustee or the Certificate Administrator was
required to expend any monies in connection with any Event of Default, then such
Event of Default may not be waived unless and until those monies have been
reimbursed to the Trustee or the Certificate Administrator, as applicable, with
interest, by the Defaulting Party. Upon any such waiver of an Event of Default,
such Event of Default shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if registered in the name
of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as
such Event of Default shall not have been remedied, the Trustee, in addition to
the rights specified in Section 7.01, shall have the right (exercisable subject
to Section 8.01(a)), in its own name and as trustee of an express trust, to take
all actions now or hereafter existing at law, in equity or by statute to enforce
its rights
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and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
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ARTICLE VIII
THE TRUSTEE, CERTIFICATE ADMINISTRATOR AND TAX ADMINISTRATOR
SECTION 8.01. Duties of Trustee, the Certificate Administrator
and the Tax Administrator.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiver of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default occurs and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs. Any permissive right of the Trustee contained in
this Agreement shall not be construed as a duty. The Certificate Administrator
and the Tax Administrator shall be liable in accordance herewith only to the
extent of the respective obligations specifically imposed upon and undertaken by
the Certificate Administrator and the Tax Administrator.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee, the Certificate Administrator or the Tax Administrator, as applicable,
which are specifically required to be furnished pursuant to any provision of
this Agreement (other than the Mortgage Files, the review of which is
specifically governed by the terms of Article II), the Trustee, the Certificate
Administrator or the Tax Administrator, as applicable, shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee, the Certificate Administrator or the Tax
Administrator, as applicable, shall take such action as it deems appropriate to
have the instrument corrected. The Trustee, the Certificate Administrator or the
Tax Administrator, as applicable, shall not be responsible or liable for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer, the Special Servicer, any actual or prospective Certificateholder or
Certificate Owner or either Rating Agency, and accepted by the Trustee, the
Certificate Administrator or the Tax Administrator in good faith, pursuant to
this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee or the Certificate Administrator from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing or waiver of all Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee.
(ii) In the absence of bad faith on the part of the Trustee,
the Certificate Administrator or the Tax Administrator, the Trustee,
the Certificate Administrator or the
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Tax Administrator, as applicable, may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee,
the Certificate Administrator or the Tax Administrator, as applicable,
and conforming to the requirements of this Agreement.
(iii) The Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
(iv) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by the Trustee, in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% (or, as to any particular matter, any higher
percentage as may be specifically provided for hereunder) of the Voting
Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement.
(v) The Trustee shall not be required to take action with
respect to, or be deemed to have notice or knowledge of, any default or
Event of Default or the Master Servicer's failure to deliver any
monies, including P&I Advances, or to provide any report, certificate
or statement, to the Trustee, the Certificate Administrator or the Tax
Administrator, as applicable, when required pursuant to this Agreement)
unless a Responsible Officer of the Trustee shall have received written
notice or otherwise have actual knowledge thereof. Otherwise, the
Trustee may conclusively assume that there is no such default or Event
of Default.
(vi) Subject to the other provisions of this Agreement, and
without limiting the generality of this Section 8.01, none of the
Trustee, the Certificate Administrator or the Tax Administrator shall
have any duty, except, in the case of the Trustee, as expressly
provided in Section 2.01(c) or Section 2.01(e) or in its capacity as
successor Master Servicer or successor Special Servicer, (A) to cause
any recording, filing, or depositing of this Agreement or any agreement
referred to herein or any financing statement or continuation statement
evidencing a security interest, or to cause the maintenance of any such
recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, (B) to cause the maintenance of any
insurance, (C) to confirm or verify the truth, accuracy or contents of
any reports or certificates of the Master Servicer, the Special
Servicer, any actual or prospective or any Certificateholder or
Certificate Owner or either Rating Agency, delivered to the Trustee,
the Certificate Administrator or the Tax Administrator pursuant to this
Agreement reasonably believed by the Trustee, the Certificate
Administrator or the Tax Administrator, as applicable, to be genuine
and without error and to have been signed or presented by the proper
party or parties, (D) subject to Section 10.01(f), to see to the
payment or discharge of any tax levied against any part of the Trust
Fund other than from funds available in the Collection Account or the
Distribution Account, and (E) to see to the payment of any assessment
or other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Collection Account or
Distribution Account (provided that such assessment, charge, lien or
encumbrance did not arise out of the Trustee's, the Certificate
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Administrator's or the Tax Administrator's, as applicable, willful
misfeasance, bad faith or negligence).
(vii) For as long as the Person that serves as the Trustee,
the Certificate Administrator or the Tax Administrator hereunder also
serves as Custodian and/or Certificate Registrar, the protections,
immunities and indemnities afforded to that Person in its capacity as
Trustee, Certificate Administrator or Tax Administrator, as applicable,
hereunder shall also be afforded to such Person in its capacity as
Custodian and/or Certificate Registrar, as the case may be.
(viii) If the same Person is acting in two or more of the
following capacities - Trustee, Certificate Administrator, Tax
Administrator, Custodian or Certificate Registrar, then any notices
required to be given by such Person in one such capacity shall be
deemed to have been timely given to itself in any other such capacity.
SECTION 8.02. Certain Matters Affecting the Trustee, the
Certificate Administrator and the Tax
Administrator.
Except as otherwise provided in Section 8.01:
(i) the Trustee, the Certificate Administrator and the Tax
Administrator, may each rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and without error and to have been signed or presented by
the proper party or parties;
(ii) the Trustee, the Certificate Administrator and the Tax
Administrator may each consult with counsel and any written advice or
opinion of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, unless such
Certificateholders shall have provided to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby satisfactory to the Trustee, in its
reasonable discretion; none of the Trustee, the Certificate
Administrator or the Tax Administrator shall be required to expend or
risk its own funds (except to pay expenses that could reasonably be
expected to be incurred in connection with the performance of its
normal duties) or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it; provided,
however, that nothing contained herein shall relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not
been waived or cured, to exercise such of the rights and powers vested
in it by this
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Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs;
(iv) none of the Trustee, any Fiscal Agent appointed thereby,
the Certificate Administrator or the Tax Administrator shall be
personally liable for any action reasonably taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default and after
the waiver or curing of all Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so
by Holders of Certificates entitled to at least 25% of the Voting
Rights; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
an indemnity satisfactory to the Trustee, in its reasonable discretion,
against such expense or liability as a condition to taking any such
action;
(vi) except as contemplated by Section 8.06 and, with respect
to the Trustee alone, Section 8.14, none of the Trustee, the
Certificate Administrator or the Tax Administrator shall be required to
give any bond or surety in respect of the execution of the trusts
created hereby or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers
vested in it by this Agreement, the Certificate Administrator and the
Tax Administrator may each perform any of their respective duties
hereunder, either directly or by or through agents or
attorneys-in-fact, provided that the use of agents or attorneys-in-fact
shall not be deemed to relieve the Trustee, the Certificate
Administrator or the Tax Administrator, as applicable, of any of its
duties and obligations hereunder (except as expressly set forth
herein);
(viii) none of the Trustee, any Fiscal Agent appointed
thereby, the Certificate Administrator or the Tax Administrator shall
be responsible for any act or omission of the Master Servicer or the
Special Servicer (unless, in the case of the Trustee, it is acting as
Master Servicer or Special Servicer, as the case may be) or of the
Depositor.
(ix) neither the Trustee nor the Certificate Registrar shall
have any obligation or duty to monitor, determine or inquire as to
compliance with any restriction on transfer imposed under Article V
under this Agreement or under applicable law with respect to any
transfer of any Certificate or any interest therein, other than to
require delivery of the certification(s) and/or Opinions of Counsel
described in said Article applicable with respect to changes in
registration or record ownership of Certificates in the Certificate
Register and to examine the same to determine substantial compliance
with the express requirements of this Agreement; and the Trustee and
the Certificate Registrar shall have no liability for transfers,
including transfers made through the book-entry facilities of the
Depository or between or among Depository Participants or beneficial
owners of the Certificates, made in
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violation of applicable restrictions except for its failure to perform
its express duties in connection with changes in registration or record
ownership in the Certificate Register.
SECTION 8.03. Trustee, the Fiscal Agent, the Certificate
Administrator and the Tax Administrator not
Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other
than the statements attributed to, and the representations and warranties of,
the Trustee, any Fiscal Agent, the Certificate Administrator and/or the Tax
Administrator in Article II, and the signature of the Certificate Registrar set
forth on each outstanding Certificate) shall not be taken as the statements of
the Trustee, any Fiscal Agent, the Certificate Administrator or the Tax
Administrator, and none of the Trustee, any Fiscal Agent, the Certificate
Administrator or the Tax Administrator assumes any responsibility for their
correctness. None of the Trustee, any Fiscal Agent, the Certificate
Administrator or the Tax Administrator makes any representation as to the
validity or sufficiency of this Agreement (except as regards the enforceability
of this Agreement against it) or of any Certificate (other than as to the
signature of the Trustee set forth thereon) or of any Mortgage Loan or related
document. None of the Trustee, any Fiscal Agent, the Certificate Administrator
or the Tax Administrator shall be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust, or any funds
deposited in or withdrawn from the Collection Account or any other account by or
on behalf of the Depositor, the Master Servicer or the Special Servicer (unless,
in the case of the Trustee, it is acting in such capacity). None of the Trustee,
any Fiscal Agent, the Certificate Administrator or the Tax Administrator shall
be responsible for the legality or validity of this Agreement (other than
insofar as it relates to the obligations of the Trustee, such Fiscal Agent, the
Certificate Administrator or the Tax Administrator, as the case may be,
hereunder) or the validity, priority, perfection or sufficiency of any security,
lien or security interest granted to it hereunder or the filing of any financing
statements or continuation statements, except to the extent set forth in Section
2.01(c) and Section 2.01(e) or to the extent the Trustee is acting as Master
Servicer or Special Servicer and the Master Servicer or Special Servicer, as the
case may be, would be so responsible hereunder. None of the Trustee, the
Certificate Administrator or the Tax Administrator shall be required to record
this Agreement.
SECTION 8.04. Trustee, Fiscal Agent, Certificate Administrator
and Tax Administrator May Own Certificates.
The Trustee (in its individual or any other capacity), any
Fiscal Agent, the Certificate Administrator or the Tax Administrator or any of
their respective Affiliates may become the owner or pledgee of Certificates with
(except as otherwise provided in the definition of "Certificateholder") the same
rights it would have if it were not the Trustee, such Fiscal Agent, the
Certificate Administrator or the Tax Administrator or one of their Affiliates,
as the case may be.
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SECTION 8.05. Fees and Expenses of Trustee, the Certificate
Administrator and the Tax Administrator;
Indemnification of and by Trustee, the
Certificate Administrator, the Tax Administrator
and Fiscal Agent.
(a) On each Distribution Date, the Certificate Administrator
shall withdraw from the Distribution Account, out of general collections on the
Mortgage Loans and REO Properties on deposit therein, prior to any distributions
to be made therefrom to Certificateholders on such date, and pay to the Trustee
all Trustee's Fees, and to itself all Certificate Administrator's Fees, in each
case earned in respect of the Mortgage Loans and any REO Mortgage Loans through
the end of the then most recently ended calendar month as compensation for all
services rendered by the Trustee and the Certificate Administrator,
respectively, hereunder. As to each Mortgage Loan and REO Mortgage Loan, the
Trustee's Fee and the Certificate Administrator's Fee shall accrue during each
calendar month, commencing with December 2000, at the Trustee's Fee Rate and the
Certificate Administrator's Fee Rate, respectively, on a principal amount equal
to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as
the case may be, immediately following the Distribution Date in such calendar
month (or, in the case of December 2000, on a principal amount equal to the
Cut-off Date Principal Balance of the particular Mortgage Loan). With respect to
each Mortgage Loan and REO Mortgage Loan, the Trustee's Fee shall be calculated
on the same Interest Accrual Basis as is applicable to the accrual or deemed
accrual of interest on such Mortgage Loan or REO Mortgage Loan, as the case may
be. The Trustee's Fees (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and the Certificate
Administrator's Fees shall constitute the sole compensation of the Trustee and
the Certificate Administrator, respectively, for such services to be rendered by
it. The Certificate Administrator shall be responsible for the fees of the Tax
Administrator.
(b) The Trustee, the Certificate Administrator and the Tax
Administrator and any of their respective directors, officers, employees or
agents are entitled to be indemnified and held harmless out of Trust Fund for
and against any loss, liability, claim or expense (including costs and expenses
of litigation, and of investigation, counsel fees, damages, judgments and
amounts paid in settlement) arising out of, or incurred in connection with, this
Agreement, the Certificates, the Mortgage Loans (unless, in the case of the
Trustee, it incurs any such expense or liability in the capacity of successor
Master Servicer or Special Servicer, in which case such expense or liability
will be reimbursable thereto in the same manner as it would be for any other
Master Servicer or Special Servicer, as the case may be) or any act or omission
of the Trustee, the Certificate Administrator or the Tax Administrator relating
to the exercise and performance of any of the rights and duties of the Trustee,
the Certificate Administrator or the Tax Administrator hereunder; provided,
however, that none of the Trustee, the Certificate Administrator, the Tax
Administrator or any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (1) allocable overhead,
such as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
(2) any cost or expense that could reasonably be expected to be incurred by the
Trustee, the Certificate Administrator or the Tax Administrator in connection
with the performance of its normal duties, (3) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or (4)
any loss, liability, claim or expense incurred by reason of any breach on the
part of the Trustee, the Certificate Administrator or the Tax Administrator of
any of their respective representations, warranties or covenants contained
herein or any willful misfeasance, bad faith or
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negligence in the performance of, or reckless disregard of, the Trustee's, the
Certificate Administrator's or the Tax Administrator's obligations and duties
hereunder.
(c) Each of the Master Servicer and the Special Servicer shall
indemnify the Trustee, the Certificate Administrator, the Tax Administrator and
any Fiscal Agent for and hold each of them harmless against any loss, liability,
claim or expense that is a result of the Master Servicer's or the Special
Servicer's, as the case may be, negligent acts or omissions in connection with
this Agreement, including the negligent use by the Master Servicer or the
Special Servicer, as the case may be, of any powers of attorney delivered to it
by the Trustee pursuant to the provisions hereof and the Mortgage Loans serviced
by the Master Servicer or the Special Servicer, as the case may be; provided,
however, that, if the Trustee, the Certificate Administrator or the Tax
Administrator has been reimbursed for such loss, liability, claim or expense
pursuant to Section 8.05(b), or any Fiscal Agent has been reimbursed for such
loss, liability, claim or expense pursuant to Section 8.13, then the indemnity
in favor of such Person provided for in this Section 8.05(c) with respect to
such loss, liability, claim or expense shall be for the benefit of the Trust.
(d) Each of the Trustee, the Certificate Administrator, the
Tax Administrator and any Fiscal Agent shall indemnify the Master Servicer and
the Special Servicer for and hold each of them harmless against any loss,
liability, claim or expense that is a result of the Trustee's, the Certificate
Administrator's, the Tax Administrator's or such Fiscal Agent's, as the case may
be, negligent acts or omissions in connection with this Agreement; provided,
however, that if the Master Servicer or the Special Servicer has been reimbursed
for such loss, liability, claim or expense pursuant to Section 6.03, then the
indemnity in favor of such Person provided for in this Section 8.05(d) with
respect to such loss, liability, claim or expense shall be for the benefit of
the Trust.
(e) This Section 8.05 shall survive the termination of this
Agreement or the resignation or removal of the Trustee, the Certificate
Administrator, the Tax Administrator, any Fiscal Agent, the Master Servicer or
the Special Servicer as regards rights and obligations prior to such
termination, resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee,
Certificate Administrator and Tax Administrator.
The Trustee, the Certificate Administrator and the Tax
Administrator hereunder each shall at all times be a corporation, bank, trust
company or association that: (i) is organized and doing business under the laws
of the United States of America or any State thereof or the District of Columbia
and, in the case of the Trustee, authorized under such laws to exercise trust
powers; (ii) has a combined capital and surplus of at least $50,000,000; and
(iii) is subject to supervision or examination by federal or state authority. If
such corporation, bank, trust company or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation, bank, trust
company or association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In addition: (i)
the Trustee shall at all times meet the requirements of Section 26(a)(1) of the
Investment Company Act; and (ii) neither the Certificate Administrator nor the
Tax Administrator may have any affiliations or act in any other capacity with
respect to the transactions contemplated
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hereby that would cause the Underwriter Exemption to be unavailable with respect
to any Class of Certificates that it would otherwise be available in respect of.
Furthermore, the Trustee, the Certificate Administrator and the Tax
Administrator shall at all times maintain a long-term unsecured debt rating of
no less than "Aa3" from Moody's and "AA-" from S&P (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee, the Certificate Administrator, the Tax Administrator and the Depositor
by such Rating Agency)); provided that the Trustee shall not cease to be
eligible to serve as such based on a failure to satisfy such rating requirements
so long as either: (i) the Trustee maintains a long-term unsecured debt rating
of no less than "Baa2" from Moody's and "BBB" from S&P (or, in the case of
either Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee and the Depositor by such Rating Agency)) and a Fiscal Agent
meeting the requirements of Section 8.13 has been appointed by the Trustee and
is then currently serving in such capacity; or (ii) the Trustee maintains a
long-term unsecured debt rating of no less than "A1" from Moody's and "A" from
S&P (or, in the case of either Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee and the Depositor by such
Rating Agency)) and an Advance Security Arrangement meeting the requirements of
Section 8.14 has been established by the Trustee and is then currently being
maintained. In case at any time the Trustee, the Certificate Administrator or
the Tax Administrator shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee, the Certificate Administrator or
the Tax Administrator, as applicable, shall resign immediately in the manner and
with the effect specified in Section 8.07. The corporation, bank, trust company
or association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer and their respective Affiliates; provided,
however, that none of (i) the Depositor, (ii) any Person involved in the
organization or operation of the Depositor or the Trust, (iii) any Mortgage Loan
Seller or (iv) any Affiliate of any of them, may be the Trustee hereunder.
SECTION 8.07. Resignation and Removal of Trustee, Certificate
Administrator and Tax Administrator.
(a) The Trustee, the Certificate Administrator and the Tax
Administrator each may at any time resign and be discharged from their
respective obligations created hereunder by giving written notice thereof to the
other such parties, the Depositor, the Master Servicer, the Special Servicer and
all the Certificateholders. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor trustee, certificate administrator
or tax administrator, as the case may be, meeting the eligibility requirements
of Section 8.06 by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee, Certificate Administrator or Tax
Administrator, as the case may be, and to the successor trustee, certificate
administrator or tax administrator, as the case may be. A copy of such
instrument shall be delivered to other parties hereto and to the
Certificateholders by the Depositor. If no successor trustee, certificate
administrator or tax administrator, as the case may be, shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee, Certificate Administrator or Tax
Administrator, as the case may be, may petition any court of competent
jurisdiction for the appointment of a successor trustee.
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(b) If at any time the Trustee, the Certificate Administrator
or the Tax Administrator shall cease to be eligible in accordance with the
provisions of Section 8.06 and shall fail to resign after written request
therefor by the Depositor or the Master Servicer, or if at any time the Trustee,
the Certificate Administrator or the Tax Administrator shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee, the Certificate Administrator or the Tax Administrator or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee, the Certificate Administrator or the Tax Administrator or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's, Certificate Administrator's or Tax
Administrator's continuing to act in such capacity would (as confirmed in
writing to the Depositor by either Rating Agency) result in an Adverse Rating
Event with respect to any Class of Rated Certificates), then the Depositor may
remove the Trustee, the Certificate Administrator or the Tax Administrator, as
the case may be, and appoint a successor trustee, certificate administrator or
tax administrator, as the case may be, by written instrument, in duplicate,
which instrument shall be delivered to the Trustee, the Certificate
Administrator or the Tax Administrator, as the case may be, so removed and to
the successor trustee, certificate administrator or tax administrator, as the
case may be. A copy of such instrument shall be delivered to the other parties
hereto and to the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of
the Voting Rights may at any time remove the Trustee, Certificate Administrator
or Tax Administrator and appoint a successor trustee, certificate administrator
or tax administrator, as the case may be, by written instrument or instruments,
in triplicate, signed by such Holders or their attorneys-in-fact duly
authorized, one complete set of which instruments shall be delivered to the
Depositor, one complete set to the Trustee, Certificate Administrator or Tax
Administrator, as the case may be, so removed, and one complete set to the
successor so appointed. All expenses incurred by the Trustee in connection with
its transfer of the Mortgages Files to a successor trustee following the removal
of the Trustee without cause pursuant to this Section 8.07(c), shall be
reimbursed to the removed Trustee within 30 days of demand therefor, such
reimbursement to be made by the Certificateholders that terminated the Trustee.
A copy of such instrument shall be delivered to the other parties hereto and to
the remaining Certificateholders by the successor so appointed.
(d) The Trustee may terminate the Certificate Administrator or
the Tax Administrator if it believes such action to be in the best interests of
the Certificateholders.
(e) Any resignation or removal of the Trustee, the Certificate
Administrator or the Tax Administrator and appointment of a successor trustee,
certificate administrator or tax administrator, as the case may be, pursuant to
any of the provisions of this Section 8.07 shall not become effective until (i)
acceptance of appointment by the successor trustee, certificate administrator or
tax administrator, as the case may be, as provided in Section 8.08 and (ii) if
none of the successor trustee, certificate administrator or tax administrator,
as the case may be, has a long-term unsecured debt rating of at least "Aa3" from
Moody's and "AA" from S&P, the Trustee and the Depositor have received written
confirmation from each Rating Agency that has not so assigned such a rating, to
the effect that the appointment of such successor trustee, certificate
administrator or tax administrator, as the case may be, shall not result in an
Adverse Rating Event with respect to any Class of Rated Certificates.
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SECTION 8.08. Successor Trustee, Certificate Administrator and
Tax Administrator.
(a) Any successor trustee, certificate administrator or tax
administrator appointed as provided in Section 8.07 shall execute, acknowledge
and deliver to the Depositor, the Master Servicer, the Special Servicer and its
predecessor trustee, certificate administrator or tax administrator, as the case
may be, an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee, certificate administrator or
tax administrator, as the case may be, shall become effective and such successor
trustee, certificate administrator or tax administrator, as the case may be,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee, certificate administrator or
tax administrator herein. If the Trustee is being replaced, the predecessor
trustee shall deliver to the successor trustee all Mortgage Files and related
documents and statements held by it hereunder (other than any Mortgage Files at
the time held on its behalf by a Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Master Servicer, the
Special Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee, certificate administrator or tax
administrator shall accept appointment as provided in this Section 8.08 unless
at the time of such acceptance such successor trustee, certificate administrator
or tax administrator, as the case may be, shall be eligible under the provisions
of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee,
certificate administrator or tax administrator as provided in this Section 8.08,
such successor trustee, certificate administrator or tax administrator, as the
case may be, shall mail notice of the succession of such trustee hereunder to
the Depositor and the Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee, Certificate
Administrator or Tax Administrator.
Any entity into which the Trustee, Certificate Administrator
or Tax Administrator may be merged or converted or with which it may be
consolidated or any entity resulting from any merger, conversion or
consolidation to which the Trustee, Certificate Administrator or Tax
Administrator shall be a party, or any entity succeeding to the corporate trust
business of the Trustee, Certificate Administrator or Tax Administrator, shall
be the successor of the Trustee, Certificate Administrator or Tax Administrator,
as the case may be, hereunder, provided such entity shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
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SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06, and no notice to Holders of Certificates
of the appointment of co-trustee(s) or separate trustee(s) shall be required
under Section 8.08.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or when acting as Master Servicer, Special Servicer, Certificate
Administrator or Tax Administrator hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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(e) The appointment of a co-trustee or separate trustee under
this Section 8.10 shall not relieve the Trustee of its duties and
responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's own expense one or
more Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee; provided that the Trustee shall inform the other parties hereto of such
appointment. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File, shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller, and shall have in place a fidelity bond and errors and omissions policy,
each in such form and amount as is customarily required of custodians acting on
behalf of Freddie Mac or Fannie Mae. Each Custodian shall be subject to the same
obligations, standard of care, protection and indemnities as would be imposed
on, or would protect, the Trustee hereunder in connection with the retention of
Mortgage Files directly by the Trustee, and the provisions of Sections 8.01,
8.02, 8.03, 8.04, 8.05(b), 8.05(c), 8.05(d) and 8.05(e) shall apply to the
Custodian to the same extent as such Sections apply to the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee and the Certificate Administrator shall each
afford to the Depositor, the Underwriters, the Master Servicer, the Special
Servicer, the Controlling Class Representative and each Rating Agency and to the
OTS, the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, access to
any documentation regarding the Mortgage Loans or the other assets of the Trust
Fund that are in its possession or within its control. Such access shall be
afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Trustee or the Certificate
Administrator, as the case may be, designated by it.
(b) Certificate Administrator (or, in the case of the items
referenced in clause (ix) below, the Trustee) shall maintain at its offices or
the offices of a Custodian and, upon reasonable prior written request and during
normal business hours, shall make available, or cause to be made available, for
review by the Depositor, the Rating Agencies, the Controlling Class
Representative and, subject to the succeeding paragraph, any Certificateholder,
Certificate Owner or Person identified to the Certificate Administrator (or, in
the case of the items referenced in clause (ix) below, the Trustee) as a
prospective Transferee of a Certificate or an interest therein, originals and/or
copies of the following items (to the extent such items were prepared by or
delivered to the Certificate Administrator (or, in the case of the items
referenced in clause (ix) below, the Trustee)): (i) the Prospectus, the
Memorandum and any other disclosure document relating to the Certificates, in
the form most recently provided to the Certificate Administrator by the
Depositor or by any Person designated by the Depositor; (ii) this Agreement,
each Sub-Servicing Agreement delivered to the Certificate Administrator since
the Closing Date and any amendments and exhibits hereto or thereto; (iii) all
Distribution Date Statements and any files and reports comprising the CMSA
Investor Reporting Package actually delivered or otherwise made available to
Certificateholders
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pursuant to Section 4.02(a) since the Closing Date; (iv) all Annual Performance
Certifications delivered by the Master Servicer and the Special Servicer,
respectively, to the Certificate Administrator since the Closing Date; (v) all
Annual Accountants' Reports caused to be delivered by the Master Servicer and
the Special Servicer, respectively, to the Certificate Administrator since the
Closing Date; (vi) the most recent inspection report prepared by the Master
Servicer or the Special Servicer and delivered to the Certificate Administrator
in respect of each Mortgaged Property pursuant to Section 3.12(a); (vii) any and
all notices and reports delivered to the Certificate Administrator with respect
to any Mortgaged Property as to which the environmental testing contemplated by
Section 3.09(c) revealed that neither of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof was satisfied; (viii) all files and
reports comprising the CMSA Investor Reporting Package delivered to the
Certificate Administrator since the Closing Date pursuant to Section 4.02(b);
(ix) each of the Mortgage Files, including any and all modifications, waivers
and amendments of the terms of a Mortgage Loan entered into or consented to by
the Special Servicer and delivered to the Trustee or any Custodian pursuant to
Section 3.20; (x) any and all Officer's Certificates and other evidence
delivered to or by the Trustee to support its, the Master Servicer's, the
Special Servicer's or any Fiscal Agent's, as the case may be, determination that
any Advance was (or, if made, would be) a Nonrecoverable Advance; and (xi) any
other information that may be necessary to satisfy the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act. The Certificate
Administrator (or, in the case of the items referenced in clause (ix) of the
prior sentence, the Trustee) shall provide, or cause to be provided, copies of
any and all of the foregoing items upon request of any of the parties set forth
in the previous sentence; however, except in the case of the Rating Agencies,
the Certificate Administrator (or, in the case of the items referenced in clause
(ix) of the prior sentence, the Trustee) or any Custodian shall be permitted to
require payment of a sum sufficient to cover the reasonable costs and expenses
of providing such copies.
In connection with providing, or causing to be provided,
access to or copies of the items described in the preceding paragraph pursuant
to this Section 8.12(b), the Certificate Administrator or the Trustee, as the
case may be, shall require: (a) in the case of Certificate Owners, a written
confirmation executed by the requesting Person substantially in the form of
Exhibit L-1 hereto (or such other form as may be reasonably acceptable to the
Certificate Administrator or the Trustee, as the case may be) generally to the
effect that such Person is a beneficial holder of Book-Entry Certificates and,
subject to the last sentence of this paragraph, will keep such information
confidential (except that such Certificate Owner may provide such information to
its auditors, legal counsel and regulators and to any other Person that holds or
is contemplating the purchase of any Certificate or interest therein (provided
that such other Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep such information
confidential)); and (b) in the case of a prospective purchaser of a Certificate
or an interest therein, confirmation executed by the requesting Person
substantially in the form of Exhibit L-2 hereto (or such other form as may be
reasonably acceptable to the Certificate Administrator or the Trustee, as the
case may be) generally to the effect that such Person is a prospective purchaser
of a Certificate or an interest therein, is requesting the information for use
in evaluating a possible investment in Certificates and, subject to the last
sentence of this paragraph, will otherwise keep such information confidential.
The Holders of the Certificates, by their acceptance thereof, will be deemed to
have agreed, subject to the last sentence of this paragraph, to keep such
information confidential (except that any Holder may provide any such
information obtained by it to its auditors, legal counsel and regulators and to
any other Person that holds or is contemplating the purchase of
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any Certificate or interest therein (provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential)). Notwithstanding the foregoing, no
Certificateholder, Certificate Owner or prospective Certificateholder or
Certificate Owner need keep confidential any information received from the
Certificate Administrator or the Trustee, as the case may be, pursuant to this
Section 8.12(b) that has previously been filed with the Commission, and the
Certificate Administrator or the Trustee, as the case may be, shall not require
either of the certifications contemplated by the second preceding sentence in
connection with providing any information pursuant to this Section 8.12(b) that
has previously been filed with the Commission.
(c) None of the Trustee or the Certificate Administrator shall
be liable for providing or disseminating information in accordance with the
terms of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the
rating requirements of Section 8.06, the Trustee may appoint, at the Trustee's
own expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Moody's and "AA" from S&P (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)). Any Person so appointed by the Trustee pursuant to this
Section 8.13(a) shall become the Fiscal Agent on the date as of which the
Trustee and the Depositor have received: (i) if the long-term unsecured debt of
the designated Person is not rated as least "Aa3" from Moody's and "AA" from
S&P, written confirmation from each Rating Agency that the appointment of such
designated Person will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates; (ii) a written agreement whereby the designated
Person is appointed as, and agrees to assume and perform the duties of, Fiscal
Agent hereunder, executed by such designated Person and the Trustee (such
agreement, the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which
shall be paid for by the designated Person or the Trustee) substantially to the
effect that (A) the appointment of the designated Person to serve as Fiscal
Agent is in compliance with this Section 8.13, (B) the designated Person is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (C) the related Fiscal Agent Agreement has
been duly authorized, executed and delivered by the designated Person and (D)
upon execution and delivery of the related Fiscal Agent Agreement, the
designated Person shall be bound by the terms of this Agreement and, subject to
customary bankruptcy and insolvency exceptions and customary equity exceptions,
that this Agreement shall be enforceable against the designated Person in
accordance with its terms. Any Person that acts as Fiscal Agent shall, for so
long as it so acts, be deemed a party to this Agreement for all purposes hereof.
Pursuant to the related Fiscal Agent Agreement, each Fiscal Agent, if any, shall
make representations and warranties with respect to itself that are comparable
to those made by the Trustee pursuant to Section 2.07. Notwithstanding anything
contained in this Agreement to the contrary, any Fiscal Agent shall be entitled
to all limitations on liability, rights of reimbursement and indemnities to
which the Trustee is entitled hereunder (including pursuant to Sections 8.05(b)
and 8.05(c)) as if it were the Trustee.
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(b) To the extent that the Trustee is required, pursuant to
the terms of this Agreement, to make any Advance, whether as successor Master
Servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent (if any) shall make such Advance when and as required
by the terms of this Agreement on behalf the Trustee as if such Fiscal Agent
were the Trustee hereunder. To the extent that the Fiscal Agent (if any) makes
an Advance pursuant to this Section 8.13 or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to
the contrary, any Fiscal Agent shall be entitled to all limitations on
liability, rights of reimbursement and indemnities to which the Trustee is
entitled hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it
were the Trustee, except that all fees and expenses of any Fiscal Agent (other
than interest owed to such Fiscal Agent in respect of unreimbursed Advances)
incurred by such Fiscal Agent in connection with the transactions contemplated
by this Agreement shall be borne by the Trustee, and neither the Trustee nor
such Fiscal Agent shall be entitled to reimbursement therefor from any of the
Trust, the Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this
Section 8.13 or otherwise pursuant to this Agreement shall exist only for so
long as the Trustee that appointed it shall act as Trustee hereunder. Any Fiscal
Agent may resign or be removed by the Trustee only if and when the existence of
such Fiscal Agent is no longer necessary for such Trustee to satisfy the
eligibility requirements of Section 8.06; provided that any Fiscal Agent shall
be deemed to have resigned at such time as the Trustee that appointed it resigns
or is removed as Trustee hereunder (in which case the responsibility for
appointing a successor Fiscal Agent in accordance with this Section 8.13(a)
shall belong to the successor Trustee insofar as such appointment is necessary
for such successor Trustee to satisfy the eligibility requirements of Section
8.06).
(e) The Trustee shall promptly notify the other parties hereto
and the Certificateholders in writing of the appointment, resignation or removal
of any Fiscal Agent.
SECTION 8.14. Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may, at is own expense with the
approval of the Depositor, arrange for the pledging of collateral, the
establishment of a reserve fund or the delivery of a letter of credit, surety
bond or other comparable instrument or for any other security or financial
arrangement (any or all of the foregoing, individually and collectively, an
"Advance Security Arrangement") for purposes of supporting its back-up advancing
obligations hereunder; provided that any Advance Security Arrangement shall be
in such form and amount, and shall be maintained in such manner, as (i) would
permit the Trustee to act in such capacity without an Adverse Rating Event in
respect of any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by each Rating Agency) and (ii) would not result in an
Adverse REMIC Event (as evidenced by an Opinion of Counsel addressed and
delivered to the Trustee, the Depositor and the Tax Administrator). The Trustee
may terminate any Advance Security Arrangement established by it only if and
when (i) the existence of such Advance Security Arrangement is no longer
necessary for the Trustee to satisfy the eligibility requirements of Section
8.06 or (ii) when such Trustee resigns or is removed as Trustee hereunder.
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SECTION 8.15. Filings with the Securities and Exchange Commission.
(a) With respect to the Trust's fiscal year 2000 (and, if as
of the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository), the Certificate
Administrator shall:
(i) on each Distribution Date during such fiscal year, in
accordance with the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission,
prepare for filing, execute and properly file with the Commission
monthly, with respect to the Trust, a Current Report on Form 8-K with
copies of the Distribution Date Statement and the Unrestricted Servicer
Reports disseminated by the Trustee on such Distribution Date attached
as exhibits;
(ii) during such fiscal year, (A) monitor for and promptly
notify the Depositor of the occurrence or existence of any of the
matters identified in Section 11.09(a) and/or Section 8.15(b) (in each
case to the extent that a Responsible Officer of the Certificate
Administrator has actual knowledge thereof), (B) cooperate with the
Depositor in obtaining all necessary information in order to enable the
Depositor to prepare a Current Report on Form 8-K reporting any such
matter in accordance with the Exchange Act, the rules and regulations
promulgated thereunder and applicable "no-action letters" issued by the
Commission, and (C) execute and promptly file with the Commission any
such Current Report on Form 8-K prepared by or on behalf of the
Depositor and delivered to the Trustee; and
(iii) within 90 days following the end of such fiscal year,
prepare, execute and properly file with the Commission, with respect to
the Trust, an Annual Report on Form 10-K which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission;
provided that (x) the Certificate Administrator shall not have any
responsibility to file any items (other than those generated by it) that have
not been received in a format suitable for (or readily convertible to a format
suitable for) electronic filing via the EDGAR system (including "ASCII,"
"Microsoft Word," "Microsoft Excel," or another format reasonably acceptable to
the Certificate Administrator) and shall not have any responsibility to convert
any such items (other than those generated by it) to such format and (y) the
Depositor shall be responsible for preparing, executing and filing (via the
EDGAR system within 15 days following the Closing Date) a Current Report on Form
8-K reporting the establishment of the Trust and whereby this Agreement is filed
as an exhibit. Each of the other parties to this Agreement shall deliver to the
Certificate Administrator in the format required for (or readily convertible to
a format suitable for) electronic filing via the EDGAR system (including
"ASCII," "Microsoft Word," "Microsoft Excel," or another format reasonably
acceptable to the Certificate Administrator) any and all items (including, in
the case of the Master Servicer and the Special Servicer, Unrestricted Servicer
Reports) contemplated to be filed with the Commission pursuant to this Section
8.15(a).
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(b) At all times during the Trust's fiscal year 2000 (and, if
as of the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, at all times during
such other fiscal year), the Certificate Administrator shall monitor for and
promptly notify the Depositor of the occurrence or existence of any of the
following matters of which a Responsible Officer of the Certificate
Administrator has actual knowledge:
(i) any failure of the Certificate Administrator to make any
monthly distributions to the Holders of any Class of Certificates,
which failure is not otherwise reflected in the Certificateholder
Reports filed with the Commission or has not otherwise been reported to
the Depositor pursuant to any other Section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage
Loan or an REO Property, which acquisition or disposition has not
otherwise been reflected in the Certificateholder Reports filed with
the Commission or has not otherwise been reported to the Depositor
pursuant to any other Section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments,
Mortgage Loans and REO Properties), other than in the normal course of
business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary
routine litigation incidental to the business of the Trust, to which
the Trust (or any party to this Agreement on behalf of the Trust) is a
party or of which any property included in the Trust Fund is subject,
or any threat by a governmental authority to bring any such legal
proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar proceedings in
respect of or pertaining to the Trust or any party to this Agreement,
or any actions by or on behalf of the Trust or any party to this
Agreement indicating its bankruptcy, insolvency or inability to pay its
obligations; and
(vii) any change in the rating or ratings assigned to any
Class of Certificates not otherwise reflected in the Certificateholder
Reports filed with the Commission;
provided that (x) the actual knowledge of a Responsible Officer of either the
Trustee or the Certificate Administrator of any material legal proceedings of
which property included in the Trust Fund is subject or of any material legal
proceedings threatened by a governmental authority is limited to circumstances
where it would be reasonable for the Certificate Administrator to identify such
property as an asset of, or as securing an asset of, the Trust or such
threatened proceedings as concerning the Trust and (y) no Responsible Officer of
the Trustee or the Certificate Administrator shall be deemed to have actual
knowledge of the matters described in clauses (vi) and (vii) of this Section
8.15(b) unless such Responsible Officer was notified in writing.
(c) If as of the beginning of any fiscal year for the Trust
(other than fiscal year 2000), the Registered Certificates are held (directly
or, in the case of Registered Certificates held in
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book-entry form, through the Depository) by less than 300 Holders and/or
Depository Participants having accounts with the Depository, the Certificate
Administrator shall, in accordance with the Exchange Act and the rules and
regulations promulgated thereunder, timely file a Form 15 with respect to the
Trust.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans.
Subject to Section 9.02, the Trust and the respective
obligations and responsibilities under this Agreement of the parties hereto
(other than the obligations of the Certificate Administrator to provide for and
make payments to Certificateholders as hereafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by or on behalf of the Certificate Administrator and required hereunder to be so
paid on the Distribution Date following the earlier to occur of: (i) the
purchase by the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders of all
Mortgage Loans and each REO Property remaining in the Trust Fund at a price (the
"Termination Price") equal to (A) the aggregate Purchase Price of all the
Mortgage Loans remaining in the Trust Fund (exclusive of any REO Mortgage
Loan(s)), plus (B) the appraised value of each REO Property, if any, included in
the Trust Fund, such appraisal to be conducted by a Qualified Appraiser selected
by the Special Servicer and approved by the Trustee and the Master Servicer,
minus (C) if the purchaser is the Master Servicer or the Special Servicer, the
aggregate amount of unreimbursed Advances made by such Person, together with any
unpaid Advance Interest in respect of such unreimbursed Advances and any unpaid
servicing compensation payable to such Person (which items shall be deemed to
have been paid or reimbursed to the Master Servicer or the Special Servicer, as
the case may be, in connection with such purchase); provided however, that any
such purchase shall be subject to the rights of any affected Designated
Sub-Servicer to continue to primary service (or to perform select servicing
duties with respect to) the Mortgage Loans covered by the applicable Designated
Sub-Servicer Agreement, (ii) the exchange by the Sole Certificateholder of all
the Certificates for all the Mortgage Loans and each REO Property remaining in
the Trust Fund, and (iii) the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; provided, however, that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the Court of St. James, living on the date hereof.
The Master Servicer, the Special Servicer or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders, in that order of preference, may at its option elect to
purchase all the Mortgage Loans and each REO Property remaining in the Trust
Fund as contemplated by clause (i) of the preceding paragraph by giving written
notice to the other parties hereto (and, in the case of an election by the
Master Servicer or Special Servicer, to the Holders of the Controlling Class) no
later than 60 days prior to the anticipated date of purchase; provided, however,
that the aggregate Stated Principal Balance of the Mortgage Pool at the time of
such election is less than 1.0% of the Initial Pool Balance; and provided,
further, that within 30 days after written notice of such election is so given,
no Person with a higher right of priority to make such an election does so; and
provided, further, that if more than one Controlling Class Certificateholder or
group of Controlling Class Certificateholders desire to purchase all of the
Mortgage Loans and any REO Properties, preference shall be given to the
Controlling Class
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Certificateholder or group of Controlling Class Certificateholders with the
largest Percentage Interest in the Controlling Class. If the Trust is to be
terminated in connection with the purchase of all the Mortgage Loans and each
REO Property remaining in the Trust Fund by the Master Servicer, the Special
Servicer or any Controlling Class Certificateholder(s), such Person(s) shall
deliver to the Master Servicer for deposit (or, if the Master Servicer is the
purchaser, it shall deposit) in the Collection Account (after the Determination
Date, and prior to the Master Servicer Remittance Date, relating to the
anticipated Final Distribution Date) an amount in immediately available funds
equal to the Termination Price and shall reimburse all of the parties hereto
(other than itself, if applicable) for all reasonable out-of-pocket costs and
expenses incurred by such parties in connection with such purchase. On the
Master Servicer Remittance Date for the Final Distribution Date, the Master
Servicer shall transfer to the Distribution Account all amounts required to be
transferred thereto on such Master Servicer Remittance Date from the Collection
Account pursuant to the first paragraph of Section 3.04(b), together with any
other amounts on deposit in the Collection Account that would otherwise be held
for future distribution. Upon confirmation that the deposit of the Termination
Price has been made to the Collection Account and the reimbursement contemplated
by the second preceding sentence has been made to the parties hereto, the
Trustee shall release or cause to be released to the purchasing party (or its
designee) the Mortgage Files for the remaining Mortgage Loans and shall execute
all assignments, endorsements and other instruments furnished to it by the
purchasing party as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties to the purchasing party (or its designee).
The Sole Certificateholder shall have the right to exchange
all of the Certificates for all of the Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (ii) of the second
preceding paragraph by giving written notice to all the parties hereto no later
than 60 days prior to the anticipated date of exchange. In the event that the
Sole Certificateholder elects to exchange all of the Certificates for all of the
Mortgage Loans and each REO Property remaining in REMIC I in accordance with the
preceding sentence, the Sole Certificateholder, not later than the Master
Servicer Remittance Date relating to the Distribution Date on which the final
distribution on the Certificates is to occur, shall deposit in the Collection
Account an amount in immediately available funds equal to all amounts then due
and owing to the Master Servicer, the Special Servicer, any Fiscal Agent, the
Certificate Administrator and/or the Tax Administrator hereunder that may be
withdrawn from the Collection Account pursuant to Section 3.05(a) or that may be
withdrawn from the Distribution Account pursuant to Section 3.05(b). In
addition, the Master Servicer shall transfer all amounts required to be
transferred to the Distribution Account on such Master Servicer Remittance Date
from the Collection Account pursuant to the first paragraph of Section 3.04(b).
Upon confirmation that such final deposits have been made and following the
surrender of all the Certificates on the Final Distribution Date, the Trustee
shall release or cause to be released to the Sole Certificateholder or its
designee, the Mortgage Files for the remaining Mortgage Loans and shall execute
all assignments, endorsements and other instruments furnished to it by the Sole
Certificateholder, as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in the Trust Fund. Such transfer shall be
subject to any rights of the Designated Sub-Servicers to primary service (or to
perform select servicing functions with respect to) the Mortgage Loans.
Notice of any termination shall be given promptly by the
Certificate Administrator by letter to Certificateholders mailed (x) if such
notice is given in connection with the purchase of all the Mortgage Loans and
each REO Property remaining in the Trust Fund by the Master Servicer,
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the Special Servicer or any Controlling Class Certificateholder(s), not earlier
than the 15th day and not later than the 25th day of the month next preceding
the month of the final distribution on the Certificates and (y) otherwise during
the month of such final distribution on or before the Master Servicer Remittance
Date in such month, in any event specifying (i) the Distribution Date upon which
the Trust Fund will terminate and final payment on the Certificates will be
made, (ii) the amount of any such final payment in respect of each Class of
Certificates and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office or agency of the Certificate
Administrator therein designated. The Certificate Administrator shall give such
notice to the parties hereto at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Certificate Administrator
shall distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts on deposit in the Distribution Account that is allocable to payments on
the relevant Class in accordance with Section 4.01.
Any funds not distributed to any Holder or Holders of
Certificates of any Class on the Final Distribution Date because of the failure
of such Holder or Holders to tender their Certificates shall, on such date, be
set aside and held uninvested in trust and credited to the account or accounts
of the appropriate non-tendering Holder or Holders. If any Certificates as to
which notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Certificate Administrator shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Certificate Administrator, directly or
through an agent, shall take such reasonable steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders following the first anniversary
of the delivery of such second notice to the non-tendering Certificateholders
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust hereunder. If by the second
anniversary of the delivery of such second notice, all of the Certificates shall
not have been surrendered for cancellation, then, subject to applicable escheat
laws, the Certificate Administrator shall distribute to the Class R
Certificateholders all unclaimed funds and other assets which remain subject
hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or a
Controlling Class Certificateholder purchases, or the Sole Certificateholder
exchanges all the Certificates for, all the Mortgage Loans and each REO Property
remaining in the Trust Fund as provided in Section 9.01, the Trust and each
REMIC Pool shall be terminated in accordance with the following additional
requirements, unless the purchasing party obtains at its own expense and
delivers to the Trustee and the Tax Administrator an Opinion of Counsel,
addressed to the Trustee and the Tax Administrator, to the effect that the
failure of the Trust to comply with the requirements of this Section 9.02 will
not result in an Adverse REMIC Event with respect to any REMIC Pool:
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(i) the Tax Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each REMIC Pool, pursuant to Treasury regulation Section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder (as
evidenced by an Opinion of Counsel to such effect delivered on behalf
and at the expense of the purchasing party);
(ii) during such 90-day liquidation period and at or prior to
the time of making the final payment on the Certificates, the Trustee
shall sell/transfer all the Mortgage Loans and each REO Property to the
Master Servicer, the Special Servicer, the applicable Controlling Class
Certificateholder(s) or the Sole Certificateholder, as the case may be,
in exchange for cash and/or Certificates in accordance with Section
9.01; and
(iii) immediately following the making of the final payment on
the Certificates, the Certificate Administrator shall distribute or
credit, or cause to be distributed or credited, to the Holders of the
Class R Certificates all remaining cash on hand (other than cash
retained to meet claims), and each REMIC Pool shall terminate at that
time.
(b) By their acceptance of Certificates, the Holders hereby
authorize the Tax Administrator to prepare and adopt, on behalf of the Trust, a
plan of complete liquidation of each REMIC Pool in accordance with the terms and
conditions of this Agreement, which authorization shall be binding upon all
successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool
as a REMIC under the Code and, if necessary, under applicable state law. Each
such election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state Tax Returns for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued.
(b) The Plurality Class R Certificateholder is hereby
designated as the Tax Matters Person of each REMIC Pool and, in such capacity,
shall be responsible to act on behalf of such REMIC Pool in relation to any tax
matter or controversy, to represent such REMIC Pool in any administrative or
judicial proceeding relating to an examination or audit by any governmental
taxing authority, to request an administrative adjustment as to any taxable year
of such REMIC Pool, to enter into settlement agreements with any governmental
taxing agency with respect to such REMIC Pool, to extend any statute of
limitations relating to any tax item of such REMIC Pool and otherwise to act on
behalf of such REMIC Pool in relation to any tax matter or controversy involving
such REMIC Pool; provided that the Tax Administrator is hereby irrevocably
appointed and agrees to act (in consultation with the Tax Matters Person for
each REMIC Pool) as agent and attorney-in-fact for the Tax Matters Person for
each REMIC Pool in the performance of its duties as such. The legal expenses and
costs of any action described in this Section 10.01(b) and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust
payable out of amounts on deposit in the Distribution Account as provided by
Section 3.05(b) unless such legal expenses and costs are incurred by reason of a
Tax Matters Person's or the Tax Administrator's misfeasance, bad faith or
negligence in the performance of, or such Person's reckless disregard of, its
obligations or are expressly provided by this Agreement to be borne by any party
hereto.
(c) The Tax Administrator shall prepare or cause to be
prepared and file, and the Trustee shall sign, all of the Tax Returns in respect
of each REMIC Pool and all of the applicable income tax and other information
returns for each Grantor Trust Pool. The expenses of preparing and filing such
returns shall be borne by the Tax Administrator without any right of
reimbursement therefor.
(d) The Tax Administrator shall perform on behalf of each
REMIC Pool all reporting and other tax compliance duties that are the
responsibility of such REMIC Pool under the Code, the REMIC Provisions or other
compliance guidance issued by the IRS or any state or local taxing authority.
Included among such duties, the Tax Administrator shall provide: (i) to any
Transferor of a Class R Certificate, such information as is necessary for the
application of any tax relating to the transfer of a Class R Certificate to any
Person who is not a Permitted Transferee; (ii) to the Certificateholders, such
information or reports as are required by the Code or the REMIC Provisions,
including reports relating to interest, original issue discount and market
discount or premium (using the Prepayment Assumption as required); and (iii) to
the IRS, the name, title, address and telephone number of the Person who will
serve as the representative of each REMIC Pool.
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(e) The Tax Administrator shall take such action and shall
cause each REMIC Pool to take such action as shall be necessary to create or
maintain the status thereof as a REMIC under the REMIC Provisions (and the other
parties hereto shall assist it, to the extent reasonably requested by the Tax
Administrator), to the extent that the Tax Administrator has actual knowledge
that any particular action is required; provided that the Tax Administrator
shall be deemed to have knowledge of relevant tax laws. Except as contemplated
by Section 3.17(a), the Tax Administrator shall not knowingly take or fail to
take any action, or cause any REMIC Pool to take or fail to take any action,
that under the REMIC Provisions, if taken or not taken, as the case may be,
could result in an Adverse REMIC Event in respect of any REMIC Pool, unless the
Tax Administrator has received an Opinion of Counsel (at the expense of the
person requesting such action or non-action) to the effect that the contemplated
action or non-action, as the case may be, will not result in an Adverse REMIC
Event. Except as contemplated by Section 3.17(a), none of the other parties
hereto shall take or fail to take any action (whether or not authorized
hereunder) as to which the Tax Administrator has advised it in writing that it
has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action. In addition, prior to taking any action
with respect to any REMIC Pool or the assets thereof, or causing any REMIC Pool
to take any action, which is not contemplated by the terms of this Agreement,
each of the other parties hereto will consult with the Tax Administrator, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur, and no such other party shall take any such action or cause any REMIC
Pool to take any such action as to which the Tax Administrator has advised it in
writing that an Adverse REMIC Event could occur. The Tax Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement.
(f) If any tax is imposed on any REMIC Pool, including
"prohibited transactions" taxes as defined in Section 860F(a)(2) of the Code,
any tax on "net income from foreclosure property" as defined in Section 860G(c)
of the Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer on behalf of the Trust pursuant
to Section 3.17(a)), such tax, together with all incidental costs and expenses
(including penalties and reasonable attorneys' fees), shall be charged to and
paid by: (i) the Trustee, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under, Article VIII (which breach
constitutes negligence, bad faith or willful misconduct); (ii) the Certificate
Administrator, if such tax arises out of or results from a breach by the
Certificate Administrator of any of its obligations under Article IV, Article
VIII or this Article X (which breach constitutes negligence, bad faith or
willful misconduct); (iii) the Tax Administrator, if such tax arises out of or
results from a breach by the Tax Administrator of any of its obligations under
Article IV, Article VIII or this Article X (which breach constitutes negligence,
bad faith or willful misconduct); (iv) any Fiscal Agent, if such tax arises out
of or results from a breach by such Fiscal Agent of any of its obligations under
Article IV or this Article X (which breach constitutes negligence, bad faith or
willful misconduct); (v) the Master Servicer, if such tax arises out of or
results from a breach by the Master Servicer of any of its obligations under
Article III or this Article X (which breach constitutes negligence, bad faith or
willful misconduct); (vi) the Special Servicer, if such tax arises out of or
results from a breach by the Special Servicer of any of its obligations under
Article III or this Article X (which breach constitutes negligence, bad faith or
willful misconduct); or (vii) the Trust, out of the Trust Fund (exclusive of
Grantor Trust Pools), in all other instances. If any tax is imposed on either
Grantor
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Trust Pool, such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the Tax Administrator, if such tax arises out of
or results from a breach by the Tax Administrator of any of its obligations
under this Article X (which breach constitutes negligence, bad faith or willful
misconduct); (ii) the Special Servicer, if such tax arises out of or results
from a breach by the Special Servicer of any of its obligations under Article
III or this Article X (which breach constitutes negligence, bad faith or willful
misconduct); (iii) the Master Servicer, if such tax arises out of or results
from a breach by the Master Servicer of any of its obligations under Article III
or this Article X (which breach constitutes negligence, bad faith or willful
misconduct); (iv) the Trustee, if such tax arises out of or results from a
breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Article X (which breach constitutes negligence, bad faith or willful
misconduct); (v) the Certificate Administrator, if such tax arises out of or
results from a breach by the Certificate Administrator of any of its obligations
under Article IV, Article VIII or this Article X (which breach constitutes
negligence, bad faith or willful misconduct); or (vi) the Trust, out of the
portion of the Trust Fund constituting such Grantor Trust Pool, in all other
instances. Any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a) shall be charged to and paid by the Trust. Any such amounts
payable by the Trust in respect of taxes shall be paid by the Trustee at the
direction of the Tax Administrator out of amounts on deposit in the Distribution
Account.
(g) The Tax Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each REMIC Pool and each Grantor Trust Pool on a
calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee
shall not (except as contemplated by Section 3.06) accept any contributions of
assets to any REMIC Pool unless it shall have received an Opinion of Counsel (at
the expense of the party seeking to cause such contribution) to the effect that
the inclusion of such assets in such REMIC Pool will not result in an Adverse
REMIC Event in respect of such REMIC Pool.
(i) None of the Tax Administrator, the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent shall consent to or, to the
extent it is within the control of such Person, permit: (i) the sale or
disposition of any Mortgage Loan (except in connection with (A) a breach of any
representation or warranty regarding any Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase Agreement, (B) the foreclosure,
default or reasonably foreseeable material default of a Mortgage Loan, including
the sale or other disposition of a Mortgaged Property acquired by foreclosure,
deed in lieu of foreclosure or otherwise, (C) the bankruptcy of any REMIC Pool,
or (D) the termination of the Trust pursuant to Article IX of this Agreement);
(ii) the sale or disposition of any investments in the Collection Account or the
REO Account for gain; or (iii) the acquisition of any assets for the Trust
(other than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan, other than
Permitted Investments acquired in connection with the investment of funds in the
Collection Account or the REO Account); in any event unless it has received an
Opinion of Counsel (at the expense of the party seeking to cause such sale,
disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not result in an Adverse REMIC Event in respect of any REMIC
Pool.
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(j) Except as otherwise permitted by Section 3.17(a), none of
the Tax Administrator, the Certificate Administrator, the Master Servicer, the
Special Servicer or the Trustee shall enter into any arrangement by which any
REMIC Pool will receive a fee or other compensation for services or, to the
extent it is within the control of such Person, permit any REMIC Pool to receive
any income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code. At all times as may be required by the Code, each of the
respective parties hereto (to the extent it is within its control) shall ensure
that substantially all of the assets of each REMIC Pool will consist of
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Within 30 days after the related Startup Day, the Tax
Administrator shall prepare and file with the IRS, with respect to each REMIC
Pool, Form 8811 "Information Return for Real Estate Mortgage Investment Conduits
(REMICs) and Issuers of Collateralized Debt Obligations".
(l) On or before April 15 of each calendar year, commencing
April 15, 2001, unless the Tax Administrator and the Trustee are the same
Person, the Tax Administrator shall deliver to the Trustee an Officer's
Certificate from a Responsible Officer of the Tax Administrator confirming the
Tax Administrator's compliance with its obligations under this Agreement during
the prior calendar year.
(m) The parties intend that the portion of the Trust Fund
consisting of Post-ARD Additional Interest on the ARD Loans and the Class Y
Sub-Account shall constitute, and that the affairs of such portion of the Trust
Fund shall be conducted so as to qualify as, a Grantor Trust, and the provisions
hereof shall be interpreted consistently with this intention. In addition, the
parties intend that the portion of the Trust Fund consisting of the REMIC I
Residual Interest, the REMIC II Residual Interest, the REMIC III Residual
Interest and the Loan REMIC Residual Interests shall constitute, and the affairs
of such portion of the Trust Fund shall be conducted so as to qualify as, a
Grantor Trust, and the provisions hereof shall be interpreted consistently with
this intention. The Tax Administrator shall perform on behalf of each Grantor
Trust Pool all reporting and other tax compliance duties that are the
responsibility of such Grantor Trust Pool under the Code or any compliance
guidance issued by the IRS or any state or local taxing authorities. The
expenses of preparing and filing such returns shall be borne by the Tax
Administrator.
(n) The Trustee, the Tax Administrator and the Certificate
Administrator shall comply with the terms of each Loan REMIC Declaration to the
extent that such Loan REMIC Declaration is not inconsistent with the provisions
of this Agreement.
SECTION 10.02. Depositor, Master Servicer, Special Servicer,
Trustee and Fiscal Agent to Cooperate with Tax
Administrator.
(a) The Depositor shall provide or cause to be provided to the
Tax Administrator, within 10 days after the Closing Date, all information or
data that the Tax Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including
the price, yield, prepayment assumption and projected cash flow of the
Certificates.
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(b) Each of the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent shall furnish such reports, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Certificates or the Trust Fund and as shall be
reasonably requested by the Tax Administrator in order to enable it to perform
its duties hereunder.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the
mutual agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add any other provisions with respect to matters or
questions arising hereunder which shall not be inconsistent with the already
existing provisions hereof, (iv) as evidenced by an Opinion of Counsel delivered
to the Trustee and the Tax Administrator, either (A) to comply with any
requirements imposed by the Code or any successor or amendatory statute or any
temporary or final regulation, revenue ruling, revenue procedure or other
written official announcement or interpretation relating to federal income tax
laws or any such proposed action which, if made effective, would apply
retroactively to any REMIC Pool or either Grantor Trust Pool at least from the
effective date of such amendment, or (B) to avoid the occurrence of a prohibited
transaction or to reduce the incidence of any tax that would arise from any
actions taken with respect to the operation of any REMIC Pool or either Grantor
Trust Pool, (v) as provided in Section 5.02(d)(iv), to modify, add to or
eliminate any of the provisions of Section 5.02(d)(i), (ii) or (iii), or (vi) to
otherwise modify or delete existing provisions of this Agreement; provided that
such amendment (other than any amendment for any of the specific purposes
described in clauses (iv) and (v) above) shall not adversely affect in any
material respect the interests of any Certificateholder, as evidenced by an
Opinion of Counsel delivered to the Trustee and Certificate Administrator to
such effect.
(b) This Agreement may also be amended from time to time by
the mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to not less than 51% of the Voting Rights allocated to all
of the affected Classes, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments received or advanced on Mortgage Loans and/or REO
Properties which are required to be distributed on any Certificate, without the
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (i) above, without the consent of the Holders
of all Certificates of such Class, or (iii) modify the provisions of this
Section 11.01 or the definition of "Servicing Standard", without the consent of
the Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to the matters described above as they would if
registered in the name of any other Person.
(c) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the Tax Administrator shall consent to any amendment to
this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that neither such amendment nor the exercise of
any power granted to any party hereto in accordance with such
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amendment will result in an Adverse REMIC Event with respect to any REMIC Pool
or an Adverse Grantor Trust Event with respect to either Grantor Trust Pool. In
addition, prior to the execution of any amendment to this Agreement, the Trustee
and Certificate Administrator shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement.
(d) Promptly after the execution and delivery of any amendment
by all parties thereto, the Trustee shall send a copy thereof to each
Certificateholder and to each Rating Agency.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee and Certificate Administrator may but shall
not be obligated to enter into any amendment pursuant to this Section 11.01 that
affects its rights, duties and immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered
pursuant to Section 11.01(a) or (c) shall be borne by the Person seeking the
related amendment, except that if the Trustee requests any amendment of this
Agreement that it reasonably believes protects or is in furtherance of the
rights and interests of Certificateholders, the cost of any Opinion of Counsel
required in connection therewith pursuant to Section 11.01(a) or (c) shall be
payable out of the Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Depositor at the expense of the Trust (payable out of the
Collection Account), but only upon written direction of the Depositor
accompanied by an Opinion of Counsel (the cost of which may be paid out of the
Collection Account) to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of
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the Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except
as expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of any other Holders of Certificates (except as expressly
permitted by this Agreement), or to obtain or seek to obtain priority over or
preference to any other such Holder (which priority or preference is not
otherwise provided for herein), or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in
accordance with the substantive laws of the State of New York applicable to
agreements made and to be performed entirely in said State, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws. The parties hereto intend that the provisions of Section 5-1401
of the New York General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall
be in writing (including by telecopy) and, unless otherwise expressly provided
herein, shall be deemed to have been duly given when delivered to or, in the
case of telecopy notice, when received: (i) in the case of the Depositor,
Salomon Brothers Mortgage Securities VII, Inc., 388 Greenwich Street, New
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York, New York 10013, Attention: Angela Hutzel, telecopy number: (212) 816-8306;
(ii) in the case of the Master Servicer, Midland Loan Services, Inc., 210 West
10th Street, 6th Floor, Kansas City, Missouri 64105, Attention: Chief Executive
Officer, telecopy number: (816) 435-2327; (iii) in the case of the Special
Servicer, Lennar Partners, Inc., 760 N.W. 107th Avenue, Suite 400, Miami,
Florida 33172, Attention: Ronald Schrager, telecopy number: (305) 226-3428; (iv)
in the case of the Trustee, Wells Fargo Bank Minnesota, N.A., 11000 Broken Land
Parkway, Columbia, Maryland 21044-3562, Attention: Corporate Trust
Administration (CMBS), Salomon Brothers Mortgage Securities VII, Inc., Series
2000-C3, telecopy number: (410) 884-2360; (v) in the case of the Rating
Agencies, (A) Moody's Investors Service, Inc., 99 Church Street, New York, New
York 10007, Attention: Commercial MBS Monitoring Department, telecopy number:
(212) 553-0300; and (B) Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., 55 Water Street, New York, New York 10041,
Attention: CMBS Surveillance Manager, telecopy number: (212) 438-2662; (vi) in
the case of any Mortgage Loan Seller, the address for notices to it under the
related Mortgage Loan Purchase Agreement; and (vi) in the case of the
Certificate Administrator, the Tax Administrator and the Certificate Registrar,
LaSalle Bank National Association, 135 South LaSalle Street, Suite 1625,
Chicago, Illinois 60603, Attention: Asset-Backed Securities Trust Services Group
"Salomon Brothers Mortgage Securities VII, Series 2000-C3, telecopy number:
(312) 904-2084; or as to each such Person such other address and/or telecopy
number as may hereafter be furnished by such Person to the parties hereto in
writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenant(s), agreement(s), provision(s) or term(s) shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective successors and
assigns and, as third party beneficiaries (with all right to enforce the
obligations hereunder intended for their benefit as if a party hereto), the
Underwriters and the non-parties referred to in Sections 6.03, 8.05 and 3.22(g),
and all such provisions shall inure to the benefit of the Certificateholders. No
other person, including any Borrower, shall be entitled to any benefit or
equitable right, remedy or claim under this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
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SECTION 11.09. Notices to and from the Rating Agencies and the
Depositor.
(a) The Trustee (or, with respect to items (v) and (vii)
below, the Certificate Administrator) shall promptly provide notice to each
Rating Agency and the Depositor with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation, termination, merger or consolidation of
the Master Servicer, the Special Servicer or the Tax Administrator and
the appointment of a successor;
(iv) the appointment, resignation or removal of a Fiscal
Agent;
(v) any change in the location of the Distribution Account,
the Interest Reserve Account or the Gain on Sale Reserve Fund;
(vi) any repurchase of a Mortgage Loan by a Mortgage Loan
Seller as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency and the Depositor with respect to each of the following of which
it has actual knowledge:
(i) the resignation or removal of the Trustee and the
appointment of a successor; and
(ii) any change in the location of the Collection Account.
(c) Each of the Master Servicer and the Special Servicer, as
the case may be, shall furnish each Rating Agency such information with respect
to the Mortgage Loans as such Rating Agency shall reasonably request and which
the Master Servicer or the Special Servicer, as the case may be, can reasonably
provide to the extent consistent with applicable law and the related Mortgage
Loan documents. In any event, the Master Servicer and the Special Servicer shall
notify each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) any change in the lien priority of the Mortgage securing
any Mortgage Loan;
(ii) any change in the identity of the anchor tenant (i.e., a
tenant representing more than 20% of the total net rentable square feet
of space) at any Mortgaged Property used for retail purposes or any
change in the term of the lease for an anchor tenant at any such
Mortgaged Property; and
(iii) any assumption of, or release or substitution of
collateral for, a Mortgage Loan that represents greater than 2% of the
then aggregate Stated Principal Balance of the Mortgage Pool; and
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<PAGE> 222
(iv) any defeasance of or material damage to a Mortgaged
Property.
(d) Each of the Master Servicer and the Special Servicer, as
the case may be, shall promptly furnish to each Rating Agency copies of the
following items (in each case, at or about the same time that it delivers or
causes the delivery of such item to the Trustee):
(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) upon request, to the extent not already delivered,
through hard copy format or electronic format, each report prepared
pursuant to Section 3.09(e).
(e) The Certificate Administrator shall promptly deliver to
each Rating Agency (in hard copy format or through use of the Certificate
Administrator's Internet Website for Moody's) a copy of each Distribution Date
Statement, Unrestricted Servicer Report and Restricted Servicer Report forwarded
to the Holders of the Certificates (in each case, at or about the same time that
it delivers such Certificateholder Report to such Holders). Any Restricted
Servicer Reports delivered electronically as aforesaid shall be accessible on
the Certificate Administrator 's Internet Website only with the use of a
password, which shall be provided by the Certificate Administrator to each
Rating Agency.
(f) The parties intend that each Rating Agency provide to the
Trustee and Certificate Administrator, upon request, a listing of the
then-current rating (if any) assigned by such Rating Agency to each Class of
Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
Upon request, including a one-time standby request, the
Trustee, Certificate Administrator, the Master Servicer or the Special Servicer,
as the case may be, shall deliver to the Controlling Class Representative a copy
of each notice or other item of information such Person is required to deliver
to the Rating Agencies pursuant to Section 11.09, in each case simultaneously
with the delivery thereof to the Rating Agencies. The Controlling Class
Representative must compensate such Person for any costs involved in such
delivery to the Controlling Class Representative.
SECTION 11.11. Complete Agreement.
This Agreement embodies the complete agreement among the
parties and may not be varied or terminated except by a written agreement
conforming to the provisions of Section 11.01. All prior negotiations or
representations of the parties are merged into this Agreement and shall have no
force or effect unless expressly stated herein.
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<PAGE> 223
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
as Depositor
By: ____________________________________
Name:
Title:
MIDLAND LOAN SERVICES, INC.
as Master Servicer
By: ____________________________________
Name:
Title:
LENNAR PARTNERS, INC.
as Special Servicer
By: ____________________________________
Name:
Title:
WELLS FARGO BANK MINNESOTA, N.A.
Solely in its capacity as Trustee
By: ____________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
as Certificate Administrator and as
Tax Administrator
By: ____________________________________
Name:
Title:
216
<PAGE> 224
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of December 2000, before me, a notary public
in and for said State, personally appeared ___________________, personally known
to me to be a _______________________________ of SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC., one of the entities that executed the within instrument,
and also known to me to be the person who executed it on behalf of such entity,
and acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
________________________________________
Notary Public
[Notarial Seal]
217
<PAGE> 225
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the ______ day of December 2000, before me, a notary public
in and for said State, personally appeared _____________________________, known
to me to be a _______________________ of MIDLAND LOAN SERVICES, INC., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________________
Notary Public
[Notarial Seal]
218
<PAGE> 226
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the ______ day of December 2000, before me, a notary public
in and for said State, personally appeared _____________________________, known
to me to be a _______________________ of LENNAR PARTNERS, INC., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________________
Notary Public
[Notarial Seal]
219
<PAGE> 227
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the ______ day of December 2000, before me, a notary public
in and for said State, personally appeared ____________________________, known
to me to be a ________________________ of WELLS FARGO BANK MINNESOTA, N.A., one
of the entities that executed the within instrument, and also known to me to be
the person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
______________________________________
Notary Public
[Notarial Seal]
220
<PAGE> 228
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the ______ day of December 2000, before me, a notary public
in and for said State, personally appeared _____________________________, known
to me to be a _______________________ of LASALLE BANK NATIONAL ASSOCIATION, one
of the entities that executed the within instrument, and also known to me to be
the person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________________
Notary Public
[Notarial Seal]
221
<PAGE> 229
EXHIBIT A-1
FORM OF CLASS X CERTIFICATES
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
Pass-Through Rate: Class Notional Amount of the Class X
Variable Certificates as of the Closing Date:
$____________________________
Closing Date: December 19, 2000 Initial Certificate Notional Amount of
this Certificate as of the Closing Date:
$____________________________
First Distribution Date: Aggregate Stated Principal Balance of the
January 18, 2001 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $914,661,061
Master Servicer: Trustee:
Midland Loan Services, Inc. Wells Fargo Bank Minnesota, N.A.
Special Servicer: Certificate Administrator and Tax
Lennar Partners, Inc. Administrator: LaSalle
Bank National Association
Certificate No. X-___ CUSIP No.: ________________
<PAGE> 230
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
ADMINISTRATOR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., LENNAR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN
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SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional amount of this Certificate (its "Certificate Notional Amount") as of
the Closing Date by the aggregate notional amount of all the Class X
Certificates (their "Class Notional Amount") as of the Closing Date) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class X Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of December 1,
2000 (the "Agreement"), among Salomon Brothers Mortgage Securities VII, Inc. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc. as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), Lennar
Partners, Inc. as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), Wells Fargo Bank Minnesota, N.A. as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and LaSalle Bank National Association as certificate administrator
(in such capacity, the "Certificate Administrator", which term includes any
successor entity under the Agreement) and as tax administrator (in such
capacity, the "Tax Administrator", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, capitalized terms used
herein have the respective meanings assigned thereto in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date"), to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class X Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Certificate Administrator by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Certificate Administrator with wiring instructions no later
than the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the
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<PAGE> 232
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or
any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit F-2A or as
Exhibit F-2B to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. If a transfer of an interest in this
Certificate, while it constitutes a Book-Entry Certificate, is to be made
without registration under the Securities Act (other than in connection with the
initial issuance of the Certificates or a transfer of this Certificate by the
Depositor or an Affiliate of the Depositor), then the Certificate Owner desiring
to effect such transfer must obtain either: (i) a certificate from the
prospective Transferee substantially in the form attached either as Exhibit F-2C
or as Exhibit F-2D to the Agreement; or (ii) an Opinion of Counsel to the effect
that such transfer may be made without registration under the Securities Act.
Any Certificateholder or Certificate Owner desiring to effect a transfer, sale,
pledge or other disposition of this Certificate or any interest herein shall,
and does hereby agree to, indemnify the Depositor, Salomon Smith Barney Inc.
("SSBI"), Greenwich Capital Markets Inc., the Trustee, any Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Administrator, the Tax
Administrator and the Certificate Registrar against any liability that may
result if such transfer, sale, pledge or other disposition is not exempt from
the registration and/or
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<PAGE> 233
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in this Certificate), unless it has received from the prospective Transferee
either (i) a certification to the effect that such prospective Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406(a) and (b) and 407 of ERISA and the excise taxes on such
prohibited transactions imposed under Section 4975 of the Code, under Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) if this
Certificate is being acquired by, on behalf of or with assets of a Plan in
reliance upon Prohibited Transaction Exemption 91-23, a certification to the
effect that such Plan (X) is an accredited investor as defined in Rule 501(a)(1)
of Regulation D of the Securities Act, (Y) is not sponsored (within the meaning
of Section 3(16)(B) of ERISA) by the Trustee, the Certificate Administrator, the
Tax Administrator, the Depositor, any Mortgage Loan Seller, the Master Servicer,
the Special Servicer, any Sub-Servicer or any Borrower with respect to Mortgage
Loans constituting 5% of the aggregate unamortized principal of all the Mortgage
Loans determined as of the Closing Date, or by an Affiliate of any such Person,
and (Z) agrees that it will obtain from each of its Transferees a written
representation that such Transferee, if a Plan, satisfies the requirements of
the immediately preceding clauses (iii)(X) and (iii)(Y), together with a written
agreement that such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y); or (iv)
a certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Certificate Registrar (or, if applicable, the
Certificate Owner effecting the transfer) that such transfer will not result in
a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Registrar to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as described in the two preceding paragraphs.
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<PAGE> 234
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of this Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator, any Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Administrator, the Tax Administrator, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund, and (iii) the exchange by any Sole
Certificateholder of all the Certificates for all the Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer,
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<PAGE> 235
the Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator and any Fiscal Agent and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator and any Fiscal Agent with the consent of the Holders of
Certificates entitled to not less than 51% of the Voting Rights allocated to all
of the affected Classes. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive
laws of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
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<PAGE> 236
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on its behalf by the Certificate Registrar.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but solely
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated:
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
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<PAGE> 237
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:_____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
__________________________________________ for the account of
_______________________________________.
Distributions made by check (such check to be made payable to
___________________) and all applicable statements and notices should be mailed
to __________. This information is provided by ________________________, the
Assignee named above, or ____________________, as its agent.
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<PAGE> 238
EXHIBIT A-2
FORM OF CLASS A-1 AND A-2 CERTIFICATES
CLASS [A-1] [A-2] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
Pass-Through Rate: Class Principal Balance of the
___% per annum Class [A-1] [A-2] Certificates
as of the Closing Date:
$_________________________
Closing Date: December 19, 2000 Initial Certificate Principal
Balance of this Certificate as
of the Closing Date:
$_________________________
First Distribution Date: Aggregate Stated Principal
January 18, 2001 Balance of the Mortgage Loans as
of the Closing Date ("Initial
Pool Balance"): $914,661,061
Master Servicer: Trustee:
Midland Loan Services, Inc. Wells Fargo Bank Minnesota, N.A.
Special Servicer: Certificate Administrator and
Lennar Partners, Inc. Tax Administrator: LaSalle Bank
National Association
Certificate No. [A-1] [A-2]-___ CUSIP No.:________________
<PAGE> 239
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
ADMINISTRATOR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN BY THE PROSPECTIVE TRANSFEREE WOULD RESULT IN A VIOLATION OF SECTION 406
OR 407 OF ERISA OR SECTION 4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF
AN EXCISE TAX UNDER SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., LENNAR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its
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<PAGE> 240
"Certificate Principal Balance") as of the Closing Date by the aggregate
principal amount of all the Class [A-1] [A-2] Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest in the Trust Fund evidenced by all the Class [A-1] [A-2] Certificates.
The Trust Fund was created and the Certificates were issued pursuant to a
Pooling and Servicing Agreement, dated as of December 1, 2000 (the "Agreement"),
among Salomon Brothers Mortgage Securities VII, Inc., as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
Midland Loan Services, Inc. as master servicer (the "Master Servicer", which
term includes any successor entity under the Agreement), Lennar Partners, Inc.
as the special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), Wells Fargo Bank Minnesota, N.A. as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and LaSalle Bank National Association as certificate administrator
(in such capacity, the "Certificate Administrator", which term includes any
successor entity under the Agreement) and as tax administrator (in such
capacity, the "Tax Administrator", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, capitalized terms used
herein have the respective meanings assigned thereto in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date") to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class [A-1] [A-2] Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on this
Certificate will be made by the Certificate Administrator by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Certificate Administrator with wiring
instructions no later than the related Record Date (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any portion of an Unfunded Principal
Balance Reduction in respect of this Certificate) will be made in like manner,
but only upon presentation and surrender of this Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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<PAGE> 241
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of this Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
any Fiscal Agent, the Certificate Administrator, the Tax Administrator, the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, any Fiscal Agent, the Certificate Administrator
the Tax Administrator or the Certificate Registrar may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate
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<PAGE> 242
Administrator, the Tax Administrator, any Fiscal Agent, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund, and (iii) the exchange by any Sole
Certificateholder of all the Certificates for all the Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 51% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive
laws of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
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<PAGE> 243
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but solely
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] Certificates referred to in the
within-mentioned Agreement.
Dated:
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
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<PAGE> 244
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________ for the
account of ________________________________________.
Distributions made by check (such check to be made payable to
___________________________________________) and all applicable statements and
notices should be mailed to ____________________________________________.
This information is provided by _____________________________, the
Assignee named above, or ____________________, as its agent.
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<PAGE> 245
EXHIBIT A-3
FORM OF CLASS B, C, D, E AND F CERTIFICATES
CLASS [B] [C] [D] [E] [F] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
Pass-Through Rate: Variable Class Principal Balance of the
Class [B] [C] [D] [E] [F]
Certificates as of the Closing
Date: $_____________________
Closing Date: December 19, 2000 Initial Certificate Principal
Balance of this Certificate as
of the Closing Date:
$___________________
First Distribution Date: Aggregate Stated Principal
January 18, 2001 Balance of the Mortgage Loans as
of the Closing Date ("Initial
Pool Balance"): $914,661,061
Master Servicer: Trustee:
Midland Loan Services, Inc. Wells Fargo Bank Minnesota, N.A.
Special Servicer: Certificate Administrator and
Lennar Partners, Inc. Tax Administrator: LaSalle Bank
National Association
Certificate No. [B] [C] [D] [E] [F]-_______ CUSIP No.: _________________
<PAGE> 246
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
ADMINISTRATOR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN BY THE PROSPECTIVE TRANSFEREE WOULD RESULT IN A VIOLATION OF SECTION 406
OR 407 OF ERISA OR SECTION 4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF
AN EXCISE TAX UNDER SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., LENNAR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
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<PAGE> 247
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [B] [C] [D]
[E] [F] Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class [B] [C] [D] [E] [F] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of December 1, 2000 (the "Agreement"), among Salomon Brothers Mortgage
Securities VII, Inc., as depositor (the "Depositor", which term includes any
successor entity under the Agreement), Midland Loan Services, Inc. as master
servicer (the "Master Servicer", which term includes any successor entity under
the Agreement), Lennar Partners, Inc. as special servicer (the "Special
Servicer", which term includes any successor entity under the Agreement), Wells
Fargo Bank Minnesota, N.A. as trustee (the "Trustee", which term includes any
successor entity under the Agreement) and LaSalle Bank National Association as
certificate administrator (in such capacity, the "Certificate Administrator",
which term includes any successor entity under the Agreement) and as tax
administrator (in such capacity, the "Tax Administrator", which term includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned thereto in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month, or if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date"), to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class [B] [C] [D] [E] [F] Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
this Certificate will be made by the Certificate Administrator by wire transfer
of immediately available funds to the account of the Person entitled thereto at
a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Certificate Administrator with wiring
instructions no later than the related Record Date (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any portion of an Unfunded Principal
Balance Reduction in respect of this Certificate) will be made in like manner,
but only upon presentation and surrender of this Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such
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<PAGE> 248
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of this Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator, any Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
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<PAGE> 249
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Administrator, the Tax Administrator, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund, and (iii) the exchange by any Sole
Certificateholder of all the Certificates for all the Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 51% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive
laws of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
5
<PAGE> 250
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but solely
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B] [C] [D] [E] [F] Certificates
referred to in the within-mentioned Agreement.
Dated:
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar
By:
---------------------------------------
Authorized Officer
6
<PAGE> 251
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of __________________________________.
Distributions made by check (such check to be made payable to
_____________) and all applicable statements and notices should be mailed to
__________________________.
This information is provided by ______________________________________,
the Assignee named above, or ____________________, as its agent.
7
<PAGE> 252
EXHIBIT A-4
FORM OF CLASS G CERTIFICATES
CLASS G COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
Pass-Through Rate: Variable Class Principal Balance of the
Class G Certificates as of the
Closing Date:
$__________________
Closing Date: December 19, 2000 Initial Certificate Principal
Balance of this Certificate as
of the Closing Date: $__________
First Distribution Date: Aggregate Stated Principal
January 18, 2001 Balance of the Mortgage Loans as
of the Closing Date ("Initial
Pool Balance"): $914,661,061
Master Servicer: Trustee:
Midland Loan Services, Inc. Wells Fargo Bank Minnesota, N.A.
Special Servicer: Certificate Administrator and
Lennar Partners, Inc. Tax Administrator: LaSalle Bank
National Association
Certificate No. G-____ CUSIP No.: ___________
<PAGE> 253
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
ADMINISTRATOR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE 7 CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., LENNAR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
2
<PAGE> 254
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
amount of this Certificate (its "Certificate Principal Balance") as of the
Closing Date by the aggregate principal amount of all the Class G Certificates
(their "Class Principal Balance") as of the Closing Date) in that certain
beneficial ownership interest in the Trust Fund evidenced by all the Class G
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of December 1, 2000 (the
"Agreement"), among Salomon Brothers Mortgage Securities VII, Inc., as depositor
(the "Depositor", which term includes any successor entity under the Agreement),
Midland Loan Services, Inc. as master servicer (the "Master Servicer", which
term includes any successor entity under the Agreement), Lennar Partners, Inc.
as special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), Wells Fargo Bank Minnesota, N.A. as trustee (the
"Trustee", which term includes any successor entity under the Agreement) and
LaSalle Bank National Association as certificate administrator (in such
capacity, the "Certificate Administrator", which term includes any successor
entity under the Agreement) and as tax administrator (in such capacity, the "Tax
Administrator", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein have the
respective meanings assigned thereto in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date"), to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class G Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Certificate Administrator by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Certificate Administrator with wiring instructions no later
than the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any portion of an Unfunded Principal Balance Reduction in respect of this
Certificate) will be made in like manner, but only upon
3
<PAGE> 255
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to the Holder hereof of
such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or
any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit F-2A or as
Exhibit F-2B to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. If a transfer of an interest in this
Certificate, while it constitutes a Book-Entry Certificate, is to be made
without registration under the Securities Act (other than in connection with the
initial issuance of the Certificates or a transfer of this Certificate by the
Depositor or an Affiliate of the Depositor), then the Certificate Owner desiring
to effect such transfer must obtain either: (i) a certificate from the
prospective Transferee substantially in the form attached either as Exhibit F-2C
or as Exhibit F-2D to the Agreement; or (ii) an Opinion of Counsel to the effect
that such transfer may be made without registration under the Securities Act.
Any Certificateholder or Certificate Owner desiring to effect a transfer, sale,
pledge or
4
<PAGE> 256
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Salomon Smith Barney Inc. ("SSBI"),
Greenwich Capital Markets Inc., the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the Certificate Administrator, the Tax
Administrator and the Certificate Registrar against any liability that may
result if such transfer, sale, pledge or other disposition is not exempt from
the registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in this Certificate), unless it has received from the prospective Transferee
either (i) a certification to the effect that such prospective Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406(a) and (b) and 407 of ERISA and the excise taxes on such
prohibited transactions imposed under Section 4975 of the Code, under Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) if this
Certificate is being acquired by, on behalf of or with assets of a Plan in
reliance upon Prohibited Transaction Exemption 91-23, a certification to the
effect that such Plan (X) is an accredited investor as defined in Rule 501(a)(1)
of Regulation D of the Securities Act, (Y) is not sponsored (within the meaning
of Section 3(16)(B) of ERISA) by the Trustee, the Certificate Administrator, the
Tax Administrator, the Depositor, any Mortgage Loan Seller, the Master Servicer,
the Special Servicer, any Sub-Servicer or any Borrower with respect to Mortgage
Loans constituting 5% of the aggregate unamortized principal of all the Mortgage
Loans determined as of the Closing Date, or by an Affiliate of any such Person,
and (Z) agrees that it will obtain from each of its Transferees a written
representation that such Transferee, if a Plan, satisfies the requirements of
the immediately preceding clauses (iii)(X) and (iii)(Y), together with a written
agreement that such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y); or (iv)
a certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Certificate Registrar (or, if applicable, the
Certificate Owner effecting the transfer) that such transfer will not result in
a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for
one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the
5
<PAGE> 257
effect that, and such other evidence as may be reasonably required by the
Certificate Registrar to confirm that, it has (i) sole investment discretion
with respect to each such account and (ii) full power to make the foregoing
acknowledgments, representations, warranties, certifications and/or agreements
with respect to each such account as described in the three preceding
paragraphs.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of this Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator, any Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Administrator, the Tax Administrator, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund, and (iii) the exchange by any Sole
Certificateholder of all the Certificates for all the Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
6
<PAGE> 258
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 51% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive
laws of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
7
<PAGE> 259
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated:
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar
By:
-----------------------------------------
Authorized Officer
8
<PAGE> 260
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_____________) and all applicable statements and notices should be mailed to
_____________________________.
This information is provided by ____________________________, the
Assignee named above, or ____________________, as its agent.
9
<PAGE> 261
EXHIBIT A-5
FORM OF CLASS H, J, K, L, M, N AND P CERTIFICATES
CLASS [H] [J] [K] [L] [M] [N] [P] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
Pass-Through Rate: Class Principal Balance of the
___% per annum Class [H] [J] [K] [K] [L] [M]
[N] [P] Certificates as of the
Closing Date:
$__________________
Closing Date: December 19, 2000 Initial Certificate Principal
Balance of this Certificate as
of the Closing Date: $__________
First Distribution Date: Aggregate Stated Principal
January 18, 2001 Balance of the Mortgage Loans as
of the Closing Date ("Initial
Pool Balance"): $914,661,061
Master Servicer: Trustee:
Midland Loan Services, Inc. Wells Fargo Bank Minnesota, N.A.
Special Servicer: Certificate Administrator and
Lennar Partners, Inc. Tax Administrator: LaSalle
Bank National Association
Certificate No. [H] [J] [K] [L] [M] [N]
[P]-____ CUSIP No.: ___________
<PAGE> 262
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., LENNAR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
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<PAGE> 263
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [H] [J] [K]
[L] [M] [N] [P] Certificates (their "Class Principal Balance") as of the Closing
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Class [H] [J] [K] [L] [M] [N] [P] Certificates. The Trust Fund was
created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as of December 1, 2000 (the "Agreement"), among Salomon
Brothers Mortgage Securities VII, Inc., as depositor (the "Depositor", which
term includes any successor entity under the Agreement), Midland Loan Services,
Inc. as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), Wells Fargo Bank Minnesota, N.A. as trustee (the "Trustee", which
term includes any successor entity under the Agreement) and LaSalle Bank
National Association as certificate administrator (in such capacity, the
"Certificate Administrator", which term includes any successor entity under the
Agreement) and as tax administrator (in such capacity, the "Tax Administrator",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein have the respective
meanings assigned thereto in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date"), to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class [H] [J] [K] [L] [M] [N] [P] Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Certificate will be made by the Certificate Administrator by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Certificate
Administrator with wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of an Unfunded Principal Balance Reduction in respect of this Certificate) will
be made in like
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<PAGE> 264
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or
any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit F-2A or as
Exhibit F-2B to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. Any Certificateholder desiring to effect
a transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall, and does hereby agree to, indemnify the Depositor,
Salomon Smith Barney Inc., Greenwich Capital Markets Inc., the Trustee, the
Certificate Administrator, the Tax Administrator, any Fiscal Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar against any
liability that may result if such transfer, sale, pledge or other disposition is
not exempt from the registration and/or
4
<PAGE> 265
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification, substantially in the form attached as Annex 1 or Annex 2 to
Exhibit F-2A to the Agreement, to the effect that such prospective Transferee is
a Qualified Institutional Buyer or a certification from the prospective
Transferee to the effect that such prospective Transferee is an Institutional
Accredited Investor.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Sections 406(a) and (b) and 407 of ERISA and the excise taxes on such prohibited
transactions imposed under Section 4975 of the Code, under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Certificate Registrar that such transfer will not result in
a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for
one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Registrar to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as described in the three preceding paragraphs.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations
5
<PAGE> 266
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of this Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator, any Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Administrator, the Tax Administrator, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund, and (iii) the exchange by any Sole
Certificateholder of all the Certificates for all the Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 51% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
6
<PAGE> 267
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive
laws of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
7
<PAGE> 268
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [H] [J] [K] [L] [M] [N] [P] Certificates
referred to in the within-mentioned Agreement.
Dated:
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar
By:
---------------------------------------
Authorized Officer
8
<PAGE> 269
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of ___________________________________.
Distributions made by check (such check to be made payable to
_____________) and all applicable statements and notices should be mailed to
_____________________________.
This information is provided by ____________________________, the
Assignee named above, or ____________________, as its agent.
9
<PAGE> 270
EXHIBIT A-6
FORM OF CLASS Y CERTIFICATES
CLASS Y COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
Closing Date: December 19, 2000 Percentage Interest evidenced by
this Class Y Certificate:
______%
First Distribution Date: Aggregate Stated Principal
January 18, 2001 Balance of the Mortgage Loans as
of the Closing Date ("Initial
Pool Balance"): $914,661,061
Master Servicer: Trustee:
Midland Loan Services, Inc. Wells Fargo Bank Minnesota, N.A.
Special Servicer: Certificate Administrator and
Lennar Partners, Inc. Tax Administrator: LaSalle
Bank National Association
Certificate No. Y-___ CUSIP No.: ________________
<PAGE> 271
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., LENNAR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
2
<PAGE> 272
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class Y Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of December 1,
2000 (the "Agreement"), among Salomon Brothers Mortgage Securities VII, Inc., as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc. as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), Lennar
Partners, Inc. as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), Wells Fargo Bank Minnesota, N.A, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and LaSalle Bank National Association as certificate administrator
(in such capacity, the "Certificate Administrator," which term includes any
successor entity under the Agreement) and as tax administrator (in such
capacity, the "Tax Administrator", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, capitalized terms used
herein have the respective meanings assigned thereto in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on the 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date"), to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class Y Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Certificate Administrator by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Certificate Administrator with wiring instructions no later
than the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
3
<PAGE> 273
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or
any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit F-2A or as
Exhibit F-2B to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. Any Certificateholder desiring to effect
a transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall, and does hereby agree to, indemnify the Depositor,
Salomon Smith Barney Inc., Greenwich Capital Markets Inc., the Trustee, the
Certificate Administrator, the Tax Administrator, any Fiscal Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar against any
liability that may result if such transfer, sale, pledge or other disposition is
not exempt from the registration and/or qualification requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification, substantially in the form attached as Annex 1 or Annex 2 to
Exhibit F-2A to the Agreement, to the effect that such prospective Transferee is
a Qualified Institutional Buyer or a certification from the prospective
Transferee to the effect that such prospective Transferee is an Institutional
Accredited Investor.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this
4
<PAGE> 274
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code.
Except in limited circumstances, the Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) a certification to the effect that the
purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406(a) and (b) and
407 of ERISA and the excise taxes on such prohibited transactions imposed under
Section 4975 of the Code, under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the
Certificate Registrar that such transfer will not result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for
one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Registrar to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as described in the three preceding paragraphs.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of this Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator, any Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Administrator, the Tax Administrator, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
5
<PAGE> 275
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund, and (iii) the exchange by any Sole
Certificateholder of all the Certificates for all the Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 51% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive
laws of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
6
<PAGE> 276
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class Y Certificates referred to in the
within-mentioned Agreement.
Dated:
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as
as Certificate Registrar
By:
--------------------------------------------
Authorized Officer
7
<PAGE> 277
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Dated:
__________________________________________
Signature by or on behalf of Assignor
__________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_________________________________________ for the account of
____________________________________.
Distributions made by check (such check to be made payable to
____________) and all applicable statements and notices should be mailed to
_____________________________.
This information is provided by ______________________, the Assignee
named above, or ____________________, as its agent.
8
<PAGE> 278
EXHIBIT A-7
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
Closing Date: December 19, 2000 Percentage Interest evidenced by
this Class R Certificate: ___%
First Distribution Date: Aggregate Stated Principal
January 18, 2001 Balance of the Mortgage Loans as
of the Closing Date ("Initial
Pool Balance"): $914,661,061
Master Servicer: Trustee:
Midland Loan Services, Inc. Wells Fargo Bank Minnesota, N.A
Special Servicer: Certificate Administrator and
Lennar Partners, Inc. Tax Administrator: LaSalle Bank
National Association
Certificate No. R-__ CUSIP No.: _______________
<PAGE> 279
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., LENNAR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT
2
<PAGE> 280
TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY
PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH
TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE
OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS, IF ANY, ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class R Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of December 1,
2000 (the "Agreement"), among Salomon Brothers Mortgage Securities VII, Inc., as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc. as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), Lennar
Partners, Inc. as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), Wells Fargo Bank Minnesota, N.A, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and LaSalle Bank National Association as certificate administrator
(in such capacity, the "Certificate Administrator", which term includes any
successor entity under the Agreement) and as tax administrator (in such
capacity, the "Tax Administrator", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, capitalized terms used
herein have the respective meanings assigned thereto in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on 18th day of
each month or, if such 18th day is not a Business Day, the Business Day
immediately following (each a "Distribution Date") to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class R Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Certificate Administrator by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Certificate Administrator with wiring instructions no later
than the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
3
<PAGE> 281
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or
any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit F-2A to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Salomon Smith Barney Inc., Greenwich
Capital Markets Inc., the Trustee, the Certificate Administrator, the Tax
Administrator, any Fiscal Agent, the Master Servicer, the Special Servicer and
the Certificate Registrar against any liability that may result if such
transfer, sale, pledge or other disposition is not exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
except to a Qualified Institutional Buyer. The Certificate Registrar shall
refuse to register the transfer of this Certificate unless it has received from
the prospective Transferee a certification, substantially in the form attached
as Annex 1 or Annex 2 to Exhibit F-2A to the Agreement, to the effect that such
prospective Transferee is a Qualified Institutional Buyer.
4
<PAGE> 282
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Sections 406(a) and (b) and 407 of ERISA and the excise taxes on such prohibited
transactions imposed under Section 4975 of the Code, under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Certificate Registrar that such transfer will not result in
a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Certificate Administrator (i) to deliver payments to
a Person other than such Person and (ii) to negotiate the terms of any mandatory
disposition, to execute all instruments of Transfer and to do all other things
necessary in connection with any such disposition. Each Person holding or
acquiring any Ownership Interest in this Certificate must be a Permitted
Transferee and shall promptly notify the Certificate Administrator and the Tax
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit H-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed Transferee,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in this
Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership Interest in
this Certificate, it will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of either the
Certificate Registrar or Certificate Administrator has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership
Interest in this Certificate to such proposed Transferee shall be effected. In
connection therewith, the Certificate Registrar shall not register the transfer
of an
5
<PAGE> 283
Ownership Interest in this Certificate to any entity classified as a partnership
under the Code unless at the time of transfer, all of its beneficial owners are
United States Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Certificate Administrator and
the Tax Administrator written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
If a Person is acquiring this Certificate as a fiduciary or agent for
one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Registrar to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as described in the five preceding paragraphs.
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Administrator and the Tax Administrator the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates; and (b) an Opinion
of Counsel, in form and substance satisfactory to the Certificate Administrator
and the Tax Administrator, to the effect that such modification of, addition to
or elimination of such provisions will not cause any REMIC Pool to cease to
qualify as a REMIC or be subject to an entity-level tax caused by the Transfer
of a Class R Certificate to a Person that is not a Permitted Transferee, or
cause a Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Class R Certificate to a Person
that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" and a "Non-United States Person". In addition, if such Transferee
is classified as a partnership under the Code, such Transferee can only be a
"Permitted Transferee" if all of its beneficial owners are United States
Persons.
A "Disqualified Organization" is any of (i) the United States or a
possession thereof, any State or political subdivision thereof or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for
Freddie Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by
6
<PAGE> 284
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the Certificate Administrator and the Tax
Administrator based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class R Certificate by such Person may cause the Trust or any
Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class R Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of this Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator, any Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, any Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Administrator, the Tax Administrator, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and
7
<PAGE> 285
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, (ii) the purchase by the Master Servicer, the Special Servicer or
any single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund, and (iii)
the exchange by any Sole Certificateholder of all the Certificates for all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Master Servicer, the Special Servicer or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 51% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive
laws of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
8
<PAGE> 286
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but solely
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
Dated:
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
9
<PAGE> 287
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:_____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________for the
account of _______________________________________________.
Distributions made by check (such check to be made payable to
____________) and all applicable statements and notices should be mailed to
_____________________________.
This information is provided by ______________________________, the
Assignee named above, or ____________________________________, as its agent.
10
<PAGE> 288
EXHIBIT B-1A
SCHEDULE OF SBRC MORTGAGE LOANS
[See Attached Schedule]
B-1A-1
<PAGE> 289
<TABLE>
<CAPTION>
CROSS
COLLATER-
PROPERTY ALIZED
LOAN / SIZE (MORTGAGE
CONTROL LOAN ORIGI- PROPERTY PROPERTY ZIP PROPERTY UNIT LOAN
NUMBER NUMBER NATOR NAME ADDRESS CITY STATE CODE SIZE TYPE GROUP)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One 440 South LaSalle Chicago IL 60605 1,019,325 SF No
Financial Street
Place
106 6603559 SBRC 149 New 149 New Montgomery San Francisco CA 94105 79,750 SF No
Montgomery Street
Street
113 6603432 SBRC Seatac 1800 S. 320th Street Federal Way WA 98003 164,326 SF No
Village
Shopping
Center
117 6604370 SBRC Amerix 8930 Stanford Columbia MD 21045 154,400 SF No
Building Boulevard
118 6604594 SBRC 85 83-89 Devonshire Boston MA 02109 91,283 SF No
Devonshire Street;
Street/258-262 258-260 Washington
Washington Street;
Street 262-268 Washington
Street
119 6602060 SBRC Centro De State Road No. 869, Catano PR 00919 326,014 SF No
Distribucion Palmas
del Ward
Norte
126 6603313 SBRC US Storage 23711 Crenshaw Torrance CA 90505 92,925 SF No
Centers Boulevard
131 6604816 SBRC 601-609 601 - 609 Mission San Francisco CA 94105 44,870 SF No
Mission Street
Street
145 6603550 SBRC Arlington 8655 Arlington Avenue Riverside CA 92503 176 Units No
Heights
Apartments
149 6604949 SBRC Villa de 5055 East Charleston Las Vegas NV 89104 160 Units No
Mission Boulevard
East
156 6605190 SBRC Town Green 101 Old Ridgefield Wilton CT 06897 34,410 SF No
at Road and
Wilton Center 15 Hubbard Road
158 6603687 SBRC Tivoli 1010 East Arkansas Arlington TX 76014 200 Units No
Gardens Lane
Apartments
159 6603102 SBRC 155 155 Washington Avenue Albany NY 12210 67,768 SF No
Washington
Ave
160 6605043 SBRC 370 370 Convention Way Redwood City CA 94063 21,000 SF No
Convention
Way
163 6604565 SBRC Franklinton 3364-3382 US Highway Franklinton NC 27525 65,366 SF No
Square 1
Shopping
Center
169 6603484 SBRC The Cascades 1515 East Silver Ocala FL 34470 86,951 SF No
Springs
Boulevard
193 6604021 SBRC K-Mart 2460 Mission Street Salem OR 97302 116,866 SF No
Shopping SE
Center
- Salem
205 6604917 SBRC K-Mart 4600 South 900 East Murray UT 84117 106,880 SF No
Shopping Street
Center
- Salt Lake
City
207 6605277 SBRC Broadway 30 East 300 South Salt Lake UT 84111 23,440 SF No
Plaza City
Building
208 6605130 SBRC 225 Long 225 Long Avenue Hillside NJ 07205 157,000 SF No
Avenue
229 6605203 SBRC Mini-City 6321 Spencer Highway Pasadena TX 77505 91,521 SF No
Self
Storage
</TABLE>
<TABLE>
<CAPTION>
CROSS
COLLATER-
ALIZED
MORTGAGE
LOAN GROUP
AGGREGATE
LOAN / CUT-OFF INTEREST
CONTROL LOAN ORIGI- PROPERTY DATE OWNERSHIP ORIGINAL MORT- RATE ACCRUAL LOAN
NUMBER NUMBER NATOR NAME BALANCE INTEREST BALANCE GAGE RATE TYPE METHOD TYPE
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One 119,577,993 Fee Simple 120,000,000 7.8900% Fixed Actual/360 ARD
Financial
Place
106 6603559 SBRC 149 New 18,809,602 Fee Simple 18,900,000 8.8800% Fixed Actual/360 Balloon
Montgomery
Street
113 6603432 SBRC Seatac 16,087,967 Fee Simple 16,250,000 7.5600% Fixed Actual/360 ARD
Village
Shopping
Center
117 6604370 SBRC Amerix 14,401,991 Fee Simple 14,500,000 8.6600% Fixed Actual/360 Balloon
Building
118 6604594 SBRC 85 13,650,000 Fee Simple 13,650,000 8.8200% Fixed Actual/360 Balloon
Devonshire
Street/258-262
Washington
Street
119 6602060 SBRC Centro De 11,197,298 Fee Simple 11,500,000 8.5400% Fixed Actual/360 Balloon
Distribucion
del
Norte
126 6603313 SBRC US Storage 8,365,375 Fee Simple 8,500,000 8.2900% Fixed Actual/360 Balloon
Centers
131 6604816 SBRC 601-609 7,372,989 Fee Simple 7,400,000 8.2200% Fixed Actual/360 Balloon
Mission
Street
145 6603550 SBRC Arlington 5,541,084 Fee Simple 5,600,000 7.5700% Fixed Actual/360 Balloon
Heights
Apartments
149 6604949 SBRC Villa de 5,178,496 Fee Simple 5,200,000 7.7700% Fixed Actual/360 Balloon
Mission
East
156 6605190 SBRC Town Green 4,907,937 Leasehold 4,920,000 8.3600% Fixed Actual/360 Balloon
at
Wilton Center
158 6603687 SBRC Tivoli 4,369,641 Fee Simple 4,400,000 8.0400% Fixed Actual/360 Balloon
Gardens
Apartments
159 6603102 SBRC 155 4,342,309 Fee Simple 4,400,000 8.2500% Fixed Actual/360 Balloon
Washington
Ave
160 6605043 SBRC 370 4,270,597 Fee Simple 4,281,000 9.1900% Fixed Actual/360 Balloon
Convention
Way
163 6604565 SBRC Franklinton 4,183,600 Fee Simple 4,200,000 7.9800% Fixed Actual/360 Balloon
Square
Shopping
Center
169 6603484 SBRC The Cascades 3,963,920 Fee Simple 4,000,000 7.9600% Fixed Actual/360 Balloon
193 6604021 SBRC K-Mart 2,791,494 Fee Simple 2,816,000 8.7500% Fixed Actual/360 Balloon
Shopping
Center
- Salem
205 6604917 SBRC K-Mart 2,423,568 Fee Simple 2,445,000 8.7000% Fixed Actual/360 Full Amort
Shopping
Center
- Salt Lake
City
207 6605277 SBRC Broadway 2,394,274 Fee Simple 2,400,000 8.4510% Fixed Actual/360 Balloon
Plaza
Building
208 6605130 SBRC 225 Long 2,391,798 Fee Simple 2,400,000 8.5300% Fixed Actual/360 Balloon
Avenue
229 6605203 SBRC Mini-City 1,664,339 Fee Simple 1,670,000 8.5700% Fixed Actual/360 Balloon
Self
Storage
</TABLE>
<TABLE>
<CAPTION>
ANTICI- ORIGINAL
PATED SCHED- TERM TO
LOAN / REPAY- ULED MONTHLY MATURITY
CONTROL LOAN ORIGI- PROPERTY CONTROL LOAN MENT MATURITY DEBT SERVICE / ARD
NUMBER NUMBER NATOR NAME NOTE DATE NUMBER NUMBER DATE DATE PAYMENT (MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One 05/02/00 101 6605225 06/01/10 06/01/30 871,332.98 120
Financial
Place
106 6603559 SBRC 149 New 01/14/00 106 6603559 NAP 02/01/10 150,444.64 120
Montgomery
Street
113 6603432 SBRC Seatac 08/24/99 113 6603432 09/01/09 09/01/29 114,290.74 120
Village
Shopping
Center
117 6604370 SBRC Amerix 03/02/00 117 6604370 NAP 04/01/10 118,325.48 120
Building
118 6604594 SBRC 85 03/10/00 118 6604594 NAP 04/01/05 108,067.76 (a) 60
Devonshire
Street/258-262
Washington
Street
119 6602060 SBRC Centro De 06/15/99 119 6602060 NAP 07/01/09 100,091.00 120
Distribucion
del
Norte
126 6603313 SBRC US Storage 06/29/99 126 6603313 NAP 07/01/09 67,245.62 120
Centers
131 6604816 SBRC 601-609 04/28/00 131 6604816 NAP 05/01/10 55,437.74 120
Mission
Street
145 6603550 SBRC Arlington 07/26/99 145 6603550 NAP 08/01/09 39,424.78 120
Heights
Apartments
149 6604949 SBRC Villa de 04/13/00 149 6604949 NAP 05/01/10 37,325.33 120
Mission
East
156 6605190 SBRC Town Green 06/14/00 156 6605190 NAP 07/01/10 37,343.47 120
at
Wilton Center
158 6603687 SBRC Tivoli 11/19/99 158 6603687 NAP 12/01/09 32,408.42 120
Gardens
Apartments
159 6603102 SBRC 155 09/24/99 159 6603102 NAP 10/01/09 34,691.81 120
Washington
Ave
160 6605043 SBRC 370 05/30/00 160 6605043 NAP 06/01/07 35,032.75 84
Convention
Way
163 6604565 SBRC Franklinton 04/11/00 163 6604565 NAP 05/01/10 30,759.57 120
Square
Shopping
Center
169 6603484 SBRC The Cascades 08/30/99 169 6603484 NAP 09/01/09 29,239.12 120
193 6604021 SBRC K-Mart 05/10/00 193 6604021 NAP 06/01/10 24,885.29 120
Shopping
Center
- Salem
205 6604917 SBRC K-Mart 05/10/00 205 6604917 NAP 06/01/20 21,528.79 240
Shopping
Center
- Salt Lake
City
207 6605277 SBRC Broadway 06/30/00 207 6605277 NAP 07/01/10 18,370.64 120
Plaza
Building
208 6605130 SBRC 225 Long 07/21/00 208 6605130 NAP 08/01/10 19,373.99 120
Avenue
229 6605203 SBRC Mini-City 07/21/00 229 6605203 NAP 08/01/10 13,526.16 120
Self
Storage
</TABLE>
<TABLE>
<CAPTION>
STATED REMAIN- STATED
ORIGINAL ING TERM REMAINING
AMORT- TO AMORT- LOAN
LOAN / IZATION SEASON- MATURITY IZATION BALANCE AT
CONTROL LOAN ORIGI- PROPERTY TERM ING / ARD TERM CUT-OFF DATE MATURITY /
NUMBER NUMBER NATOR NAME (MONTHS) (MONTHS) (MONTHS) (MONTHS) BALANCE ARD
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One 360 6 114 354 119,577,992.90 107,023,577.63
Financial
Place
106 6603559 SBRC 149 New 360 10 110 350 18,809,602.27 17,241,569.01
Montgomery
Street
113 6603432 SBRC Seatac 360 15 105 345 16,087,967.31 14,379,170.94
Village
Shopping
Center
117 6604370 SBRC Amerix 300 8 112 292 14,401,990.84 12,174,183.42
Building
118 6604594 SBRC 85 360 8 52 360 13,650,000.00 13,393,160.23
Devonshire
Street/258-262
Washington
Street
119 6602060 SBRC Centro De 240 17 103 223 11,197,297.78 8,267,091.48
Distribucion
del
Norte
126 6603313 SBRC US Storage 300 17 103 283 8,365,375.11 7,068,356.30
Centers
131 6604816 SBRC 601-609 360 7 113 353 7,372,988.89 6,652,916.02
Mission
Street
145 6603550 SBRC Arlington 360 16 104 344 5,541,084.10 4,957,351.70
Heights
Apartments
149 6604949 SBRC Villa de 360 7 113 353 5,178,495.88 4,625,029.92
Mission
East
156 6605190 SBRC Town Green 360 5 115 355 4,907,937.15 4,437,450.57
at
Wilton Center
158 6603687 SBRC Tivoli 360 12 108 348 4,369,641.03 3,939,681.02
Gardens
Apartments
159 6603102 SBRC 155 300 14 106 286 4,342,309.01 3,653,778.88
Washington
Ave
160 6605043 SBRC 370 360 6 78 354 4,270,597.44 4,071,564.28
Convention
Way
163 6604565 SBRC Franklinton 360 7 113 353 4,183,599.97 3,754,628.03
Square
Shopping
Center
169 6603484 SBRC The Cascades 360 15 105 345 3,963,919.71 3,574,308.22
193 6604021 SBRC K-Mart 240 6 114 234 2,791,494.14 2,036,820.22
Shopping
Center
- Salem
205 6604917 SBRC K-Mart 240 6 234 234 2,423,568.25 128,965.76
Shopping
Center
- Salt Lake
City
207 6605277 SBRC Broadway 360 5 115 355 2,394,273.84 2,169,121.33
Plaza
Building
208 6605130 SBRC 225 Long 300 4 116 296 2,391,797.50 2,007,631.81
Avenue
229 6605203 SBRC Mini-City 300 4 116 296 1,664,338.67 1,398,516.89
Self
Storage
</TABLE>
<TABLE>
<CAPTION>
YIELD YIELD
MAINTEN- MAINTEN- PREPAY- PREPAY-
LOAN / DEFEASE ANCE ANCE MENT MENT
CONTROL LOAN ORIGI- PROPERTY START DEFEASE PERIOD PERIOD PENALTY PENALTY
NUMBER NUMBER NATOR NAME DATE END DATE START DATE END DATE START DATE END DATE
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One 01/01/03 03/31/10 NAP NAP NAP NAP
Financial
Place
106 6603559 SBRC 149 New 01/01/03 12/31/09 NAP NAP NAP NAP
Montgomery
Street
113 6603432 SBRC Seatac 01/01/03 07/31/09 NAP NAP NAP NAP
Village
Shopping
Center
117 6604370 SBRC Amerix 01/01/03 01/31/10 NAP NAP NAP NAP
Building
118 6604594 SBRC 85 01/01/03 12/31/04 NAP NAP NAP NAP
Devonshire
Street/258-262
Washington
Street
119 6602060 SBRC Centro De 01/01/03 04/30/09 NAP NAP NAP NAP
Distribucion
del
Norte
126 6603313 SBRC US Storage 01/01/03 03/31/09 NAP NAP NAP NAP
Centers
131 6604816 SBRC 601-609 01/01/03 02/28/10 NAP NAP NAP NAP
Mission
Street
145 6603550 SBRC Arlington 01/01/03 05/31/09 NAP NAP NAP NAP
Heights
Apartments
149 6604949 SBRC Villa de 01/01/03 02/28/10 NAP NAP NAP NAP
Mission
East
156 6605190 SBRC Town Green 01/01/03 04/30/10 NAP NAP NAP NAP
at
Wilton Center
158 6603687 SBRC Tivoli 01/01/03 09/30/09 NAP NAP NAP NAP
Gardens
Apartments
159 6603102 SBRC 155 01/01/03 07/31/09 NAP NAP NAP NAP
Washington
Ave
160 6605043 SBRC 370 01/01/03 03/31/07 NAP NAP NAP NAP
Convention
Way
163 6604565 SBRC Franklinton 01/01/03 02/28/10 NAP NAP NAP NAP
Square
Shopping
Center
169 6603484 SBRC The Cascades 01/01/03 06/30/09 NAP NAP NAP NAP
193 6604021 SBRC K-Mart 01/01/03 03/31/10 NAP NAP NAP NAP
Shopping
Center
- Salem
205 6604917 SBRC K-Mart 01/01/03 03/31/20 NAP NAP NAP NAP
Shopping
Center
- Salt Lake
City
207 6605277 SBRC Broadway 01/01/03 04/30/10 NAP NAP NAP NAP
Plaza
Building
208 6605130 SBRC 225 Long 01/01/03 06/30/10 NAP NAP NAP NAP
Avenue
229 6605203 SBRC Mini-City 01/01/03 05/31/10 NAP NAP NAP NAP
Self
Storage
</TABLE>
<TABLE>
<CAPTION>
YIELD YIELD
LOAN / MAINTENANCE MAINTENANCE MASTER
CONTROL LOAN ORIGI- PROPERTY CALCULATION INTEREST SERVICING
NUMBER NUMBER NATOR NAME METHOD RATE FEE RATE
---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One NAP NAP 0.0200%
Financial
Place
106 6603559 SBRC 149 New NAP NAP 0.0200%
Montgomery
Street
113 6603432 SBRC Seatac NAP NAP 0.0200%
Village
Shopping
Center
117 6604370 SBRC Amerix NAP NAP 0.0200%
Building
118 6604594 SBRC 85 NAP NAP 0.0200%
Devonshire
Street/258-262
Washington
Street
119 6602060 SBRC Centro De NAP NAP 0.0200%
Distribucion
del
Norte
126 6603313 SBRC US Storage NAP NAP 0.0200%
Centers
131 6604816 SBRC 601-609 NAP NAP 0.0200%
Mission
Street
145 6603550 SBRC Arlington NAP NAP 0.0200%
Heights
Apartments
149 6604949 SBRC Villa de NAP NAP 0.0200%
Mission
East
156 6605190 SBRC Town Green NAP NAP 0.0200%
at
Wilton Center
158 6603687 SBRC Tivoli NAP NAP 0.0200%
Gardens
Apartments
159 6603102 SBRC 155 NAP NAP 0.0200%
Washington
Ave
160 6605043 SBRC 370 NAP NAP 0.0200%
Convention
Way
163 6604565 SBRC Franklinton NAP NAP 0.0200%
Square
Shopping
Center
169 6603484 SBRC The Cascades NAP NAP 0.0200%
193 6604021 SBRC K-Mart NAP NAP 0.0200%
Shopping
Center
- Salem
205 6604917 SBRC K-Mart NAP NAP 0.0200%
Shopping
Center
- Salt Lake
City
207 6605277 SBRC Broadway NAP NAP 0.0200%
Plaza
Building
208 6605130 SBRC 225 Long NAP NAP 0.0200%
Avenue
229 6605203 SBRC Mini-City NAP NAP 0.0200%
Self
Storage
</TABLE>
B-1A-1
<PAGE> 290
EXHIBIT B-1B
SCHEDULE OF GCFP MORTGAGE LOANS
[See Attached Schedule]
B-1B-1
<PAGE> 291
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY ZIP PROPERTY
NUMBER NUMBER NATOR PROPERTY NAME ADDRESS CITY STATE CODE SIZE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows 30600 Van Born Road Westland MI 48186 774
105 03-0810413 GCM Stonegate One 15050 Conference Chantilly VA 20151 142,477
Center Drive
111 03-0810092 GCM Granite State 1328 Hooksett Road Hooksett NH 03106 249,621
Marketplace
112 11483 GCM Pacific Plaza 1375 Sutter Street San Francisco CA 94109 81,551
116 03-0812601 GCM Webster Building 51 N Street, N.E. Washington DC 20002 136,270
120 03-0810405 GCM 801 Boylston 801 Boylston Street Boston MA 02164 26,834
Street
------------------------------------------------------------------------------------------------------------------------------------
122 03-0810402 GCM Simchik Four 93,250
Property Portfolio
122a 03-0810402a GCM 100 Market Street 100 Market Street Portsmouth NH 03801 50,674
122b 03-0810402b GCM 9 Executive Park 9 Executive Park Merrimack NH 03054 27,325
Drive Drive
122c 03-0810402c GCM 1255 South 1255 South Willow Manchester NH 03103 7,820
Willow Street
Street
122d 03-0810402d GCM 135 Daniel 135 Daniel Webster Manchester NH 03104 7,431
Webster Highway
Highway
------------------------------------------------------------------------------------------------------------------------------------
123 03-0810401 GCM Four Points 426 Main Avenue Norwalk CT 06851 127
Hotel
by Sheraton
129 11312 GCM Burlington Self 35 Ray Avenue Burlington MA 01803 88,430
Storage
130 11358 GCM Boynton Plaza 133 North Congress Boynton Beach FL 33426 97,524
Avenue
132 10511 GCM Garden Ridge 6103 Landmark Greensboro NC 27407 122,400
Center
Boulevard
133 2010092 GCM 300 West Pratt 300 West Pratt Baltimore MD 21201 60,323
Street Street
134 2010093 GCM The GTE Building 200 West Ocean Long Beach CA 90802 107,920
Boulevard
135 2010096 GCM Hamlin Court 930 & 940 Hamlin Sunnyvale CA 94089 42,868
Court
138 03-0810219 GCM Michael's Plaza 10303-10351,10355 Riverside CA 92505 67,788
& 10357 Magnolia
Avenue
------------------------------------------------------------------------------------------------------------------------
139 03-0810404 GCM Mountain Vista 348
Apartments &
Cibola Village
139a 03-0810404a GCM Mountain Vista 13110 Constitution Albuquerque NM 87111 220
Apartments Boulevard and 1501
Tramway Boulevard
N.E.
139b 03-0810404b GCM Cibola Village 12400 Montgomery Albuquerque NM 87112 128
Boulevard, N.E.
------------------------------------------------------------------------------------------------------------------------
141 03-0812040 GCM 300 West Hubbard 300 West Hubbard Chicago IL 60610 26,054
Street Building Street
142 03-0812041 GCM 445 North Wells 445 North Wells Chicago IL 60610 31,226
Street Building Street
143 03-0810224 GCM Miracle Mile 1310 West Miracle Tucson AZ 85705 116,391
Business Center Mile
144 03-0810256 GCM Folsom Self- 600 Nesmith Court Folsom CA 95630 117,200
Storage
147 03-0810259 GCM Northpointe 4230-4354 Redondo Torrance CA 90504 51,621
Shopping Center Beach Boulevard &
17204-17270
Hawthorne Boulevard
148 03-0810406 GCM 2 Willow Street 2 Willow Street Southborough MA 01745 39,984
150 9.911E+09 GCM Calaveras 30057-81 Union City CA 94358 64,956
Landing Industrial
Shopping Center Parkway SW
151 1010091 GCM Healtheon 4600 Patrick Henry Santa Clara CA 95054 49,837
Drive
152 03-0812028 GCM 444 North Wells 444 North Wells Chicago IL 60610 58,451
Street Building Street
153 03-0810239 GCM 1600 Corporate 1600 Corporate Monterey Park CA 91754 47,787
Center Drive Center Drive
154 03-0810417 GCM Little Creek 496 Bending Creek Gates NY 14624 199
Apartments Road
155 03-0810177 GCM 271 - 285 East 271 - 285 East Bronx NY 10458 18,000
Fordham Road Fordham Road
157 03-0810247 GCM El Dorado Plaza 1602, 1702, 1730, El Centro CA 92243 62,767
1750, 1790 and
1802 N. Imperial
Avenue
</TABLE>
<TABLE>
<CAPTION>
CROSS
COLLATER-
ALIZED
CROSS MORTGAGE
COLLATER- LOAN GROUP
ALIZED AGGREGATE
PROPERTY (MORTGAGE CUT-OFF
CONTROL LOAN ORIGI- LOAN / SIZE UNIT LOAN DATE OWNERSHIP ORIGINAL
NUMBER NUMBER NATOR PROPERTY NAME TYPE GROUP) BALANCE INTEREST BALANCE
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows Pads No 22,714,214 Fee Simple #######
105 03-0810413 GCM Stonegate One SF No 20,985,981 Fee Simple #######
111 03-0810092 GCM Granite State SF No 18,205,497 Fee Simple #######
Marketplace
112 11483 GCM Pacific Plaza SF No 16,426,642 Fee Simple #######
116 03-0812601 GCM Webster Building SF No 15,933,791 Fee Simple #######
120 03-0810405 GCM 801 Boylston SF No 11,010,038 Fee Simple #######
Street
---------------------------------------------------------------------------------------------------------------------------
122 03-0810402 GCM Simchik Four SF No 9,975,377 #######
Property Portfolio
122a 03-0810402a GCM 100 Market Street SF Fee Simple
122b 03-0810402b GCM 9 Executive Park SF Fee Simple
Drive
122c 03-0810402c GCM 1255 South SF Fee Simple
Willow
Street
122d 03-0810402d GCM 135 Daniel SF Fee Simple
Webster
Highway
---------------------------------------------------------------------------------------------------------------------------
123 03-0810401 GCM Four Points Rooms No 9,550,083 Leasehold #######
Hotel
by Sheraton
129 11312 GCM Burlington Self SF No 7,984,459 Fee Simple #######
Storage
130 11358 GCM Boynton Plaza SF No 7,679,220 Fee Simple #######
132 10511 GCM Garden Ridge SF No 7,095,636 Fee Simple #######
133 2010092 GCM 300 West Pratt SF No 7,018,345 Part Fee #######
Street Simple &
Part
Leasehold
134 2010093 GCM The GTE Building SF No 6,877,665 Fee Simple #######
135 2010096 GCM Hamlin Court SF No 6,810,393 Fee Simple #######
138 03-0810219 GCM Michael's Plaza SF No 6,247,050 Fee Simple #######
---------------------------------------------------------------------------------------------------------------
139 03-0810404 GCM Mountain Vista Units No 5,982,627 #######
Apartments &
Cibola Village
139a 03-0810404a GCM Mountain Vista Units Fee Simple
Apartments
139b 03-0810404b GCM Cibola Village Units Fee Simple
---------------------------------------------------------------------------------------------------------------
141 03-0812040 GCM 300 West Hubbard SF Yes (G1) 5,742,051 Fee Simple #######
Street Building
142 03-0812041 GCM 445 North Wells SF Yes (G1) 5,742,051 Fee Simple #######
Street Building
143 03-0810224 GCM Miracle Mile SF No 5,679,549 Fee Simple #######
Business Center
144 03-0810256 GCM Folsom Self- SF No 5,591,013 Fee Simple #######
Storage
147 03-0810259 GCM Northpointe SF No 5,194,650 Fee Simple #######
Shopping Center
148 03-0810406 GCM 2 Willow Street SF No 5,191,447 Fee Simple #######
150 9.911E+09 GCM Calaveras SF No 5,173,542 Fee Simple #######
Landing
Shopping Center
151 1010091 GCM Healtheon SF No 5,145,165 Part Fee #######
Simple &
Part
Leasehold
152 03-0812028 GCM 444 North Wells SF No 5,124,646 Fee Simple #######
Street Building
153 03-0810239 GCM 1600 Corporate SF No 5,055,905 Fee Simple #######
Center Drive
154 03-0810417 GCM Little Creek Units No 5,044,068 Fee Simple #######
Apartments
155 03-0810177 GCM 271 - 285 East SF No 4,933,555 Fee Simple #######
Fordham Road
157 03-0810247 GCM El Dorado Plaza SF No 4,420,203 Fee Simple #######
</TABLE>
<TABLE>
<CAPTION>
INTEREST
CONTROL LOAN ORIGI- LOAN / MORTGAGE RATE ACCRUAL LOAN NOTE
NUMBER NUMBER NATOR PROPERTY NAME RATE TYPE METHOD TYPE DATE
-------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows 7.8300% Fixed Actual/360 Balloon 10/12/00
105 03-0810413 GCM Stonegate One 8.0250% Fixed Actual/360 Balloon 10/11/00
111 03-0810092 GCM Granite State 7.7350% Fixed Actual/360 Balloon 08/19/98
Marketplace
112 11483 GCM Pacific Plaza 8.4000% Fixed Actual/360 Balloon 07/21/00
116 03-0812601 GCM Webster Building 8.3800% Fixed Actual/360 Balloon 03/24/00
120 03-0810405 GCM 801 Boylston 8.1200% Fixed Actual/360 Balloon 08/24/00
Street
-------------------------------------------------------------------------------------------------------------------
122 03-0810402 GCM Simchik Four 8.4500% Fixed Actual/360 Balloon 06/29/00
Property Portfolio
122a 03-0810402a GCM 100 Market Street
122b 03-0810402b GCM 9 Executive Park
Drive
122c 03-0810402c GCM 1255 South
Willow
Street
122d 03-0810402d GCM 135 Daniel
Webster
Highway
-------------------------------------------------------------------------------------------------------------------
123 03-0810401 GCM Four Points 9.1400% Fixed Actual/360 Balloon 04/05/00
Hotel
by Sheraton
129 11312 GCM Burlington Self 8.5500% Fixed Actual/360 Balloon 07/31/00
Storage
130 11358 GCM Boynton Plaza 8.0300% Fixed Actual/360 Balloon 06/30/00
132 10511 GCM Garden Ridge 8.4300% Fixed Actual/360 Balloon 10/03/00
133 2010092 GCM 300 West Pratt 8.0800% Fixed Actual/360 Balloon 03/30/00
Street
134 2010093 GCM The GTE Building 8.2000% Fixed Actual/360 Balloon 05/09/00
135 2010096 GCM Hamlin Court 8.6300% Fixed Actual/360 Balloon 05/15/00
138 03-0810219 GCM Michael's Plaza 8.1100% Fixed Actual/360 Balloon 03/22/00
---------------------------------------------------------------------------------------------------------
139 03-0810404 GCM Mountain Vista
Apartments 8.6000% Fixed Actual/360 Balloon 05/18/00
& Cibola Village
139a 03-0810404a GCM Mountain Vista
Apartments
139b 03-0810404b GCM Cibola Village
---------------------------------------------------------------------------------------------------------
141 03-0812040 GCM 300 West 8.3900% Fixed Actual/360 Balloon 04/30/00
Hubbard
Street Building
142 03-0812041 GCM 445 North 8.3900% Fixed Actual/360 Balloon 04/30/00
Wells
Street Building
143 03-0810224 GCM Miracle Mile 8.2800% Fixed Actual/360 Balloon 04/26/00
Business Center
144 03-0810256 GCM Folsom Self- 8.4700% Fixed Actual/360 Balloon 08/02/00
Storage
147 03-0810259 GCM Northpointe 8.3200% Fixed Actual/360 Balloon 09/18/00
Shopping Center
148 03-0810406 GCM 2 Willow Street 8.3720% Fixed Actual/360 Balloon 08/16/00
150 9.911E+09 GCM Calaveras 7.9800% Fixed Actual/360 Balloon 02/23/00
Landing
Shopping Center
151 1010091 GCM Healtheon 8.0400% Fixed Actual/360 Balloon 04/28/00
152 03-0812028 GCM 444 North 8.4900% Fixed Actual/360 Balloon 04/30/00
Wells
Street Building
153 03-0810239 GCM 1600 Corporate 8.4600% Fixed Actual/360 Balloon 07/14/00
Center Drive
154 03-0810417 GCM Little Creek 7.8300% Fixed Actual/360 Balloon 09/13/00
Apartments
155 03-0810177 GCM 271 - 285 East 8.4000% Fixed Actual/360 Balloon 10/01/99
Fordham Road
157 03-0810247 GCM El Dorado Plaza 8.1300% Fixed Actual/360 Balloon 09/21/00
</TABLE>
<TABLE>
<CAPTION>
ANTICI- ORIGINAL
PATED SCHED- MONTHLY TERM TO
REPAY- ULED DEBT MATURITY /
CONTROL LOAN ORIGI- LOAN / CONTROL LOAN MENT MATURITY SERVICE ARD
NUMBER NUMBER NATOR PROPERTY NAME NUMBER NUMBER DATE DATE PAYMENT (MONTHS)
------------------------------------------------------- -------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows 104 03-0812051 NAP ####### ######### 120
105 03-0810413 GCM Stonegate One 105 03-0810413 NAP ####### ######### 120
111 03-0810092 GCM Granite State 111 03-0810092 NAP ####### ######### 120
Marketplace
112 11483 GCM Pacific Plaza 112 11483 NAP ####### ######### 120
116 03-0812601 GCM Webster Building 116 03-0812601 NAP ####### ######### 120
120 03-0810405 GCM 801 Boylston 120 03-0810405 NAP ####### 88,832.26 120
Street
------------------------------------------------------- -------------------------------------------------------------------------
122 03-0810402 GCM Simchik Four 122 03-0810402 NAP ####### 76,568.40 117
Property Portfolio
122a 03-0810402a GCM 100 Market Street 122a 03-0810402a
122b 03-0810402b GCM 9 Executive Park 122b 03-0810402b
Drive
122c 03-0810402c GCM 1255 South 122c 03-0810402c
Willow
Street
122d 03-0810402d GCM 135 Daniel 122d 03-0810402d
Webster
Highway
------------------------------------------------------- -------------------------------------------------------------------------
123 03-0810401 GCM Four Points 123 03-0810401 NAP ####### 81,485.19 120
Hotel
by Sheraton
129 11312 GCM Burlington Self 129 11312 NAP ####### 61,796.79 120
Storage
130 11358 GCM Boynton Plaza 130 11358 NAP ####### 56,660.99 120
132 10511 GCM Garden Ridge 132 10511 NAP ####### 54,241.02 120
133 2010092 GCM 300 West Pratt 133 2010092 NAP ####### 52,124.12 120
Street
134 2010093 GCM The GTE Building 134 2010093 NAP ####### 51,595.06 120
135 2010096 GCM Hamlin Court 135 2010096 NAP ####### 53,147.34 120
138 03-0810219 GCM Michael's Plaza 138 03-0810219 NAP ####### 46,525.82 120
--------------------------------------------- -------------------------------------------------------------------------
139 03-0810404 GCM Mountain Vista
Apartments 139 03-0810404 NAP ####### 46,560.70 120
& Cibola Village
139a 03-0810404a GCM Mountain Vista 139a 03-0810404a
Apartments
139b 03-0810404b GCM Cibola Village 139b 03-0810404b
--------------------------------------------- -------------------------------------------------------------------------
141 03-0812040 GCM 300 West 141 03-0812040 NAP ####### 27,020.16 120
Hubbard
Street Building
142 03-0812041 GCM 445 North 142 03-0812041 NAP ####### 16,847.64 120
Wells
Street Building
143 03-0810224 GCM Miracle Mile 143 03-0810224 NAP ####### 42,942.47 120
Business Center
144 03-0810256 GCM Folsom Self- 144 03-0810256 NAP ####### 42,940.15 120
Storage
147 03-0810259 GCM Northpointe 147 03-0810259 NAP ####### 39,322.05 120
Shopping Center
148 03-0810406 GCM 2 Willow Street 148 03-0810406 NAP ####### 39,512.75 120
150 9.911E+09 GCM Calaveras 150 9.911E+09 NAP ####### 38,083.28 120
Landing
Shopping Center
151 1010091 GCM Healtheon 151 1010091 NAP ####### 38,043.06 120
152 03-0812028 GCM 444 North 152 03-0812028 NAP ####### 39,485.73 120
Wells
Street Building
153 03-0810239 GCM 1600 Corporate 153 03-0810239 NAP ####### 38,809.64 120
Center Drive
154 03-0810417 GCM Little Creek 154 03-0810417 NAP ####### 36,458.39 120
Apartments
155 03-0810177 GCM 271 - 285 East 155 03-0810177 NAP ####### 37,848.09 120
Fordham Road
157 03-0810247 GCM El Dorado Plaza 157 03-0810247 NAP ####### 32,870.99 120
</TABLE>
<TABLE>
<CAPTION>
REMAIN- STATED
STATED ING TERM REMAINING
ORIGINAL TO AMORT- LOAN
AMORTIZATION MATURITY IZATION CUT-OFF BALANCE
CONTROL LOAN ORIGI- LOAN / TERM SEASONING / ARD TERM DATE AT MATURITY
NUMBER NUMBER NATOR PROPERTY NAME (MONTHS) (MONTHS) (MONTHS) (MONTHS) BALANCE / ARD
------------------------------------------------------- --------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows 360 1 119 359 ####### ############
105 03-0810413 GCM Stonegate One 360 1 119 359 ####### ############
111 03-0810092 GCM Granite State 360 27 93 333 ####### ############
Marketplace
112 11483 GCM Pacific Plaza 360 4 116 356 ####### ############
116 03-0812601 GCM Webster Building 360 8 112 352 ####### ############
120 03-0810405 GCM 801 Boylston 273.3404 3 117 270.3404 ####### 8,641,402.47
Street
------------------------------------------------------- --------------------------------------------------------------------------
122 03-0810402 GCM Simchik Four 357 2 115 355 ####### 9,030,561.21
Property Portfolio
122a 03-0810402a GCM 100 Market Street
122b 03-0810402b GCM 9 Executive Park
Drive
122c 03-0810402c GCM 1255 South
Willow
Street
122d 03-0810402d GCM 135 Daniel
Webster
Highway
------------------------------------------------------- --------------------------------------------------------------------------
123 03-0810401 GCM Four Points 300 7 113 293 ####### 8,166,373.14
Hotel
by Sheraton
129 11312 GCM Burlington Self 360 4 116 356 ####### 7,245,063.89
Storage
130 11358 GCM Boynton Plaza 360 5 115 355 ####### 6,891,403.27
132 10511 GCM Garden Ridge 360 1 119 359 ####### 6,410,871.89
133 2010092 GCM 300 West Pratt 360 8 112 352 ####### 6,316,486.79
Street
134 2010093 GCM The GTE Building 360 6 114 354 ####### 6,199,267.50
135 2010096 GCM Hamlin Court 360 6 114 354 ####### 6,196,874.77
138 03-0810219 GCM Michael's Plaza 360 8 112 352 ####### 5,626,103.89
--------------------------------------------- --------------------------------------------------------------------------
139 03-0810404 GCM Mountain Vista
Apartments 360 6 114 354 ####### 5,440,167.14
& Cibola Village
139a 03-0810404a GCM Mountain Vista
Apartments
139b 03-0810404b GCM Cibola Village
--------------------------------------------- --------------------------------------------------------------------------
141 03-0812040 GCM 300 West 360 8 112 352 ####### 3,203,659.77
Hubbard
Street Building
142 03-0812041 GCM 445 North 360 6 114 354 ####### 1,997,455.92
Wells
Street Building
143 03-0810224 GCM Miracle Mile 360 7 113 353 ####### 5,131,700.85
Business Center
144 03-0810256 GCM Folsom Self- 360 3 117 357 ####### 5,061,310.68
Storage
147 03-0810259 GCM Northpointe 360 2 118 358 ####### 4,684,476.44
Shopping Center
148 03-0810406 GCM 2 Willow Street 360 3 117 357 ####### 4,689,327.96
150 9.911E+09 GCM Calaveras 360 9 111 351 ####### 4,648,782.57
Landing
Shopping Center
151 1010091 GCM Healtheon 360 7 113 353 ####### 4,623,910.76
152 03-0812028 GCM 444 North 360 6 114 354 ####### 4,648,886.38
Wells
Street Building
153 03-0810239 GCM 1600 Corporate 360 4 116 356 ####### 4,578,618.92
Center Drive
154 03-0810417 GCM Little Creek 360 2 118 358 ####### 4,496,994.44
Apartments
155 03-0810177 GCM 271 - 285 East 360 13 107 347 ####### 4,485,072.55
Fordham Road
157 03-0810247 GCM El Dorado Plaza 360 2 118 358 ####### 3,968,739.20
</TABLE>
<TABLE>
<CAPTION>
YIELD YIELD
MAINTEN- MAINTEN- PREPAY- PREPAY-
ANCE ANCE MENT MENT
PERIOD PERIOD PENALTY PENALTY
CONTROL LOAN ORIGI- LOAN / DEFEASE DEFEASE START END START END
NUMBER NUMBER NATOR PROPERTY NAME START DATE END DATE DATE DATE DATE DATE
------------------------------------------------------- --------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows 01/01/03 07/31/10 NAP NAP NAP NAP
105 03-0810413 GCM Stonegate One 01/01/03 07/31/10 NAP NAP NAP NAP
111 03-0810092 GCM Granite State 01/01/03 05/31/08 NAP NAP NAP NAP
Marketplace
112 11483 GCM Pacific Plaza 01/01/03 04/30/10 NAP NAP NAP NAP
116 03-0812601 GCM Webster Building 01/01/03 12/31/09 NAP NAP NAP NAP
120 03-0810405 GCM 801 Boylston 01/01/03 05/31/10 NAP NAP NAP NAP
Street
------------------------------------------------------- --------------------------------------------------------------------------
122 03-0810402 GCM Simchik Four 01/01/04 03/31/10 NAP NAP NAP NAP
Property Portfolio
122a 03-0810402a GCM 100 Market Street
122b 03-0810402b GCM 9 Executive Park
Drive
122c 03-0810402c GCM 1255 South
Willow
Street
122d 03-0810402d GCM 135 Daniel
Webster
Highway
------------------------------------------------------- --------------------------------------------------------------------------
123 03-0810401 GCM Four Points 01/01/03 01/31/10 NAP NAP NAP NAP
Hotel
by Sheraton
129 11312 GCM Burlington Self 01/01/03 04/30/10 NAP NAP NAP NAP
Storage
130 11358 GCM Boynton Plaza 01/01/03 03/31/10 NAP NAP NAP NAP
132 10511 GCM Garden Ridge 01/01/03 07/31/10 NAP NAP NAP NAP
133 2010092 GCM 300 West Pratt 01/01/03 12/31/09 NAP NAP NAP NAP
Street
134 2010093 GCM The GTE Building 01/01/03 02/28/10 NAP NAP NAP NAP
135 2010096 GCM Hamlin Court 01/01/03 02/28/10 NAP NAP NAP NAP
138 03-0810219 GCM Michael's Plaza 01/01/03 12/31/09 NAP NAP NAP NAP
--------------------------------------------- --------------------------------------------------------------------------
139 03-0810404 GCM Mountain Vista
Apartments 01/01/03 02/28/10 NAP NAP NAP NAP
& Cibola Village
139a 03-0810404a GCM Mountain Vista
Apartments
139b 03-0810404b GCM Cibola Village
--------------------------------------------- --------------------------------------------------------------------------
141 03-0812040 GCM 300 West 01/01/03 12/31/09 NAP NAP NAP NAP
Hubbard
Street Building
142 03-0812041 GCM 445 North 01/01/03 02/28/10 NAP NAP NAP NAP
Wells
Street Building
143 03-0810224 GCM Miracle Mile NAP NAP 05/01/05 01/31/10 NAP NAP
Business Center
144 03-0810256 GCM Folsom Self- 01/01/03 05/31/10 NAP NAP NAP NAP
Storage
147 03-0810259 GCM Northpointe NAP NAP 10/01/05 06/30/10 NAP NAP
Shopping Center
148 03-0810406 GCM 2 Willow Street NAP NAP 09/01/05 06/30/10 NAP NAP
150 9.911E+09 GCM Calaveras 01/01/03 11/30/09 NAP NAP NAP NAP
Landing
Shopping Center
151 1010091 GCM Healtheon 01/01/03 01/31/10 NAP NAP NAP NAP
152 03-0812028 GCM 444 North 01/01/03 02/28/10 NAP NAP NAP NAP
Wells
Street Building
153 03-0810239 GCM 1600 Corporate 01/01/03 04/30/10 NAP NAP NAP NAP
Center Drive
154 03-0810417 GCM Little Creek 01/01/03 06/30/10 NAP NAP NAP NAP
Apartments
155 03-0810177 GCM 271 - 285 East 01/01/03 07/31/09 NAP NAP NAP NAP
Fordham Road
157 03-0810247 GCM El Dorado Plaza 01/01/03 06/30/10 NAP NAP NAP NAP
</TABLE>
<TABLE>
<CAPTION>
YIELD YIELD
MAINTENANCE MAINTENANCE MASTER
CONTROL LOAN ORIGI- LOAN / CALCULATION INTEREST SERVICING
NUMBER NUMBER NATOR PROPERTY NAME METHOD RATE FEE RATE
------------------------------------------------------- -------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows NAP NAP 0.0200%
105 03-0810413 GCM Stonegate One NAP NAP 0.0200%
111 03-0810092 GCM Granite State NAP NAP 0.0200%
Marketplace
112 11483 GCM Pacific Plaza NAP NAP 0.0200%
116 03-0812601 GCM Webster Building NAP NAP 0.0200%
120 03-0810405 GCM 801 Boylston NAP NAP 0.0200%
Street
------------------------------------------------------- -------------------------------------------
122 03-0810402 GCM Simchik Four NAP NAP 0.0200%
Property Portfolio
122a 03-0810402a GCM 100 Market Street
122b 03-0810402b GCM 9 Executive Park
Drive
122c 03-0810402c GCM 1255 South
Willow
Street
122d 03-0810402d GCM 135 Daniel
Webster
Highway
------------------------------------------------------- -------------------------------------------
123 03-0810401 GCM Four Points NAP NAP 0.0200%
Hotel
by Sheraton
129 11312 GCM Burlington Self NAP NAP 0.0200%
Storage
130 11358 GCM Boynton Plaza NAP NAP 0.0200%
132 10511 GCM Garden Ridge NAP NAP 0.0200%
133 2010092 GCM 300 West Pratt NAP NAP 0.0200%
Street
134 2010093 GCM The GTE Building NAP NAP 0.0200%
135 2010096 GCM Hamlin Court NAP NAP 0.0200%
138 03-0810219 GCM Michael's Plaza NAP NAP 0.0200%
--------------------------------------------- -------------------------------------------
139 03-0810404 GCM Mountain Vista
Apartments NAP NAP 0.0200%
& Cibola Village
139a 03-0810404a GCM Mountain Vista
Apartments
139b 03-0810404b GCM Cibola Village
--------------------------------------------- -------------------------------------------
141 03-0812040 GCM 300 West NAP NAP 0.0200%
Hubbard
Street Building
142 03-0812041 GCM 445 North NAP NAP 0.0200%
Wells
Street Building
143 03-0810224 GCM Miracle Mile Interest Treasury 0.0200%
Business Center Differential Flat-Maturity
144 03-0810256 GCM Folsom Self- NAP NAP 0.0200%
Storage
147 03-0810259 GCM Northpointe Interest Treasury 0.0200%
Shopping Center Differential Flat-Maturity
148 03-0810406 GCM 2 Willow Street Interest Treasury 0.0200%
Differential Flat-Maturity
150 9.911E+09 GCM Calaveras NAP NAP 0.0200%
Landing
Shopping Center
151 1010091 GCM Healtheon NAP NAP 0.0200%
152 03-0812028 GCM 444 North NAP NAP 0.0200%
Wells
Street Building
153 03-0810239 GCM 1600 Corporate NAP NAP 0.0200%
Center Drive
154 03-0810417 GCM Little Creek NAP NAP 0.0200%
Apartments
155 03-0810177 GCM 271 - 285 East NAP NAP 0.0200%
Fordham Road
157 03-0810247 GCM El Dorado Plaza NAP NAP 0.0200%
</TABLE>
B-1B-1
<PAGE> 292
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY ZIP PROPERTY
NUMBER NUMBER NATOR PROPERTY NAME ADDRESS CITY STATE CODE SIZE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing 30701 - 30791 Dyer Union City CA 94587 38,625
Retail Center Street
162 03-0810251 GCM Briarwood 141 Golf Club Road Pleasant Hill CA 94523 64
Apartments
164 03-0810191 GCM Conquistador 3343 South 1300 Salt Lake City UT 84106 121
Apartments East
165 11432 GCM Greenhill 1161 McDermott West Goshen PA 19380 35,225
Corporate Drive Township
Center
166 03-0812034 GCM Northridge 8114 West Britton Oklahoma City OK 73132 216
Apartments Road
167 03-0812035 GCM Red Coach 211 The Post Road Springfield OH 45503 136
Village
Apartments
170 03-0812036 GCM The Trane 7100 Madison Street Willowbrook IL 60521 50,157
Company Building
177 03-0812019 GCM Wythe Shopping 800 East Main Wytheville VA 24382 100,544
Center Street
180 03-0812029 GCM 801 West 801 West Diversey Chicago IL 60614 17,514
Diversey Parkway
Parkway
181 9.91E+09 GCM Lafayette 5151 Lafayette Santa Clara CA 95054 70,200
Business Street/2318 Calle
Park De Luna/5122 Calle
Del Sol
182 11573 GCM Arrow Business 402-446 West Arrow San Dimas CA 91773 96,101
Center Highway
185 03-0812603 GCM Crossroads 7676 New Hampshire Takoma Park MD 20783 50,745
Professional Avenue
Building
187 HHCC0064 GCM Fran Murphy 12800 U.S. Juno Beach FL 33408 45,697
Building Highway 1
188 03-0810412 GCM Walgreen's - 1580 Route 112 South Medford NY 11763 13,905
South
Medford
189 03-0810210 GCM Sav-on and 688 & 690 East Upland CA 91786 19,747
Carl's Jr. Foothill Boulevard
192 10896 GCM Weatherbridge 1771 NW Maynard Cary NC 27513 50,930
Center Buildings Road and 111 James
II and III Jackson Avenue
194 9.904E+09 GCM 1201 Sharp Street 1201 South Sharp Baltimore MD 21230 47,305
Street
197 03-0810241 GCM Redondo Tower 425 West Paseo Tucson AZ 85701 96
Apartments Redondo
203 9.906E+09 GCM Pioneer Point 2760 Mayport Road Atlantic Beach FL 32233 100
Apartments
206 2E+10 GCM 6396, 6392, 6372 6396, 6392, 6372 Las Vegas NV 89120 25,042
McLeod Drive McLeod Drive
210 03-0812016 GCM Summit/Breckenridge 1009-1125 Glen Duluth MN 55806 107
Apartments Place
211 HHCC0063 GCM Peppertree 2840 Las Vegas Fort Worth TX 76116 152
Apartments Trail
212 03-0812031 GCM Hillmount 505 Cherry Street Grand Rapids MI 49503 101
Apartments SE
216 03-0812030 GCM Oakwood Manor 547 Cherry Street, Grand Rapids MI 49503 96
Apartments SE
217 03-0812602 GCM Woodbend 2106 Waverly Opelika AL 36801 100
Apartments Parkway
221 03-0810254 GCM U-Stor Chambers 1800 South Aurora CO 80017 49,900
Self-Storage Chambers Road
222 03-0810218 GCM 9925-9929 9925-9929 Culver City CA 90232 38,764
Jefferson Jefferson
Boulevard Boulevard
226 03-0810232 GCM Oro Valley Self 10880 North Oro Valley AZ 85737 51,000
Storage Mavinee Drive
231 03-0812045a GCM Senate Place 2620 - 2720 Senate Lansing MI 48912 32
Apartments Drive Township
232 03-0812045b GCM Eastfield 1014-1216 Lansing MI 48917 32
Townhouses Eastfield Township
Road, 2705-2719
Harwick Drive
242 2.001E+10 GCM 6380 McLeod 6380 McLeod Drive Las Vegas NV 89120 20,455
Drive
250 03-0810220 GCM 6668 Owens Drive 6668 Owens Drive Pleasanton CA 94588 18,683
251 2.001E+10 GCM 6320 - 6330 6320 - 6330 McLeod Las Vegas NV 89120 15,665
McLeod Drive Drive
252 03-0810627 GCM Rite Aid - 162-19 Hillside Jamaica NY 11432 16,079
Hillside Avenue
258 03-0810237 GCM Nogales Self 1120 North Nogales AZ 85621 48,377
Storage Industrial
Park Avenue
259 03-0810238 GCM Glendale West 8049 West Glendale Glendale AZ 85303 56,280
Self Avenue
Storage
263 03-0810661 GCM Airport Business 611 Access Road Stratford CT 06615 24,596
Center
</TABLE>
<TABLE>
<CAPTION>
CROSS
COLLATER-
ALIZED
CROSS MORTGAGE
COLLATER- LOAN GROUP
ALIZED AGGREGATE
PROPERTY (MORTGAGE CUT-OFF
CONTROL LOAN ORIGI- LOAN / SIZE UNIT LOAN DATE OWNERSHIP ORIGINAL
NUMBER NUMBER NATOR PROPERTY NAME TYPE GROUP) BALANCE INTEREST BALANCE
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing SF No 4,232,425 Fee Simple #######
Retail Center
162 03-0810251 GCM Briarwood Units No 4,194,883 Fee Simple #######
Apartments
164 03-0810191 GCM Conquistador Units No 4,161,547 Fee Simple #######
Apartments
165 11432 GCM Greenhill SF No 4,089,788 Fee Simple #######
Corporate
Center
166 03-0812034 GCM Northridge Units No 4,085,920 Fee Simple #######
Apartments
167 03-0812035 GCM Red Coach Units No 4,083,990 Fee Simple #######
Village
Apartments
170 03-0812036 GCM The Trane SF No 3,894,616 Fee Simple #######
Company Building
177 03-0812019 GCM Wythe Shopping SF No 3,629,791 Fee Simple #######
Center
180 03-0812029 GCM 801 West SF No 3,391,218 Fee Simple #######
Diversey
Parkway
181 9.91E+09 GCM Lafayette SF No 3,383,355 Fee Simple #######
Business
Park
182 11573 GCM Arrow Business SF No 3,246,693 Fee Simple #######
Center
185 03-0812603 GCM Crossroads SF No 3,144,186 Fee Simple #######
Professional
Building
187 HHCC0064 GCM Fran Murphy SF No 3,044,546 Fee Simple #######
Building
188 03-0810412 GCM Walgreen's - SF No 3,006,951 Fee Simple #######
South
Medford
189 03-0810210 GCM Sav-on and SF No 2,994,591 Fee Simple #######
Carl's Jr.
192 10896 GCM Weatherbridge SF No 2,842,834 Fee Simple #######
Center Buildings
II and III
194 9.904E+09 GCM 1201 Sharp Street SF No 2,758,740 Part Fee #######
Simple &
Part
Leasehold
197 03-0810241 GCM Redondo Tower Units No 2,592,863 Fee Simple #######
Apartments
203 9.906E+09 GCM Pioneer Point Units No 2,458,055 Fee Simple #######
Apartments
206 2E+10 GCM 6396, 6392, 6372 SF No 2,415,404 Leasehold #######
McLeod Drive
210 03-0812016 GCM Summit/Breckenridge Units No 2,381,344 Fee Simple #######
Apartments
211 HHCC0063 GCM Peppertree Units No 2,363,874 Fee Simple #######
Apartments
212 03-0812031 GCM Hillmount Units No 2,349,601 Fee Simple #######
Apartments
216 03-0812030 GCM Oakwood Manor Units No 2,230,130 Fee Simple #######
Apartments
217 03-0812602 GCM Woodbend Units No 2,181,165 Fee Simple #######
Apartments
221 03-0810254 GCM U-Stor Chambers SF No 2,071,653 Fee Simple #######
Self-Storage
222 03-0810218 GCM 9925-9929 SF No 1,995,327 Fee Simple #######
Jefferson
Boulevard
226 03-0810232 GCM Oro Valley Self SF No 1,716,954 Fee Simple #######
Storage
231 03-0812045a GCM Senate Place Units Yes (G2) 1,556,107 Fee Simple 885,000
Apartments
232 03-0812045b GCM Eastfield Units Yes (G2) 1,556,107 Fee Simple 675,000
Townhouses
242 2.001E+10 GCM 6380 McLeod SF No 1,402,676 Leasehold #######
Drive
250 03-0810220 GCM 6668 Owens Drive SF No 1,245,346 Fee Simple #######
251 2.001E+10 GCM 6320 - 6330 SF No 1,239,024 Leasehold #######
McLeod Drive
252 03-0810627 GCM Rite Aid - SF No 1,152,649 Fee Simple #######
Hillside
258 03-0810237 GCM Nogales Self SF No 1,077,461 Fee Simple #######
Storage
259 03-0810238 GCM Glendale West SF No 1,047,532 Fee Simple #######
Self
Storage
263 03-0810661 GCM Airport Business SF No 988,054 Fee Simple #######
Center
</TABLE>
<TABLE>
<CAPTION>
INTEREST
CONTROL LOAN ORIGI- LOAN / MORTGAGE RATE ACCRUAL LOAN NOTE
NUMBER NUMBER NATOR PROPERTY NAME RATE TYPE METHOD TYPE DATE
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing 7.7700% Fixed Actual/360 Balloon 04/24/00
Retail Center
162 03-0810251 GCM Briarwood 7.6900% Fixed Actual/360 Balloon 09/25/00
Apartments
164 03-0810191 GCM Conquistador 8.1100% Fixed Actual/360 Balloon 07/28/99
Apartments
165 11432 GCM Greenhill 8.3200% Fixed Actual/360 Balloon 09/21/00
Corporate
Center
166 03-0812034 GCM Northridge 7.9800% Fixed Actual/360 Balloon 05/03/00
Apartments
167 03-0812035 GCM Red Coach 7.9800% Fixed Actual/360 Balloon 04/12/00
Village
Apartments
170 03-0812036 GCM The Trane 8.4400% Fixed Actual/360 Balloon 04/27/00
Company
Building
177 03-0812019 GCM Wythe Shopping 8.3500% Fixed Actual/360 Balloon 03/30/00
Center
180 03-0812029 GCM 801 West 8.9900% Fixed Actual/360 Balloon 05/18/00
Diversey
Parkway
181 9.91E+09 GCM Lafayette 8.1200% Fixed Actual/360 Balloon 02/25/00
Business
Park
182 11573 GCM Arrow Business 8.3600% Fixed Actual/360 Balloon 09/28/00
Center
185 03-0812603 GCM Crossroads 8.1100% Fixed Actual/360 Balloon 09/07/00
Professional
Building
187 HHCC0064 GCM Fran Murphy 8.2700% Fixed Actual/360 Balloon 09/18/00
Building
188 03-0810412 GCM Walgreen's - 8.2300% Fixed Actual/360 Balloon 10/02/00
South
Medford
189 03-0810210 GCM Sav-on and 8.0000% Fixed Actual/360 Balloon 08/31/00
Carl's Jr.
192 10896 GCM Weatherbridge 8.6900% Fixed Actual/360 Full Amort 07/12/00
Center
Buildings II
and III
194 9.904E+09 GCM 1201 Sharp 8.3900% Fixed Actual/360 Balloon 12/10/99
Street
197 03-0810241 GCM Redondo Tower 7.9700% Fixed Actual/360 Balloon 06/27/00
Apartments
203 9.906E+09 GCM Pioneer Point 8.4200% Fixed Actual/360 Balloon 06/24/99
Apartments
206 2E+10 GCM 6396, 6392, 8.5400% Fixed Actual/360 Balloon 03/02/00
6372
McLeod Drive
210 03-0812016 GCM Summit/Breckenridge 8.4900% Fixed Actual/360 Balloon 02/10/00
Apartments
211 HHCC0063 GCM Peppertree 8.1800% Fixed Actual/360 Balloon 06/08/00
Apartments
212 03-0812031 GCM Hillmount 8.1500% Fixed Actual/360 Balloon 03/31/00
Apartments
216 03-0812030 GCM Oakwood Manor 8.1500% Fixed Actual/360 Balloon 03/31/00
Apartments
217 03-0812602 GCM Woodbend 8.1100% Fixed Actual/360 Balloon 08/14/00
Apartments
221 03-0810254 GCM U-Stor 8.4500% Fixed Actual/360 Balloon 08/02/00
Chambers
Self-Storage
222 03-0810218 GCM 9925-9929 8.5200% Fixed Actual/360 Balloon 06/09/00
Jefferson
Boulevard
226 03-0810232 GCM Oro Valley 8.5000% Fixed Actual/360 Balloon 06/07/00
Self
Storage
231 03-0812045a GCM Senate Place 8.3000% Fixed Actual/360 Balloon 06/15/00
Apartments
232 03-0812045b GCM Eastfield 8.3000% Fixed Actual/360 Balloon 06/15/00
Townhouses
242 2.001E+10 GCM 6380 McLeod 8.3500% Fixed Actual/360 Balloon 08/07/00
Drive
250 03-0810220 GCM 6668 Owens 8.1500% Fixed Actual/360 Balloon 04/17/00
Drive
251 2.001E+10 GCM 6320 - 6330 8.7200% Fixed Actual/360 Balloon 06/01/00
McLeod Drive
252 03-0810627 GCM Rite Aid - 8.5900% Fixed Actual/360 Full Amort 05/26/99
Hillside
258 03-0810237 GCM Nogales Self 8.5000% Fixed Actual/360 Balloon 06/07/00
Storage
259 03-0810238 GCM Glendale West 8.5000% Fixed Actual/360 Balloon 06/07/00
Self
Storage
263 03-0810661 GCM Airport 8. 7200% Fixed Actual/360 Balloon 09/30/99
Business
Center
</TABLE>
<TABLE>
<CAPTION>
ANTICI- ORIGINAL
PATED SCHED- MONTHLY TERM TO
REPAY- ULED DEBT MATURITY /
CONTROL LOAN ORIGI- LOAN / CONTROL LOAN MENT MATURITY SERVICE ARD
NUMBER NUMBER NATOR PROPERTY NAME NUMBER NUMBER DATE DATE PAYMENT (MONTHS)
--------------------------------------------------------- -----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing 161 03-0810225 NAP ####### 30,506.28 120
Retail Center
162 03-0810251 GCM Briarwood 162 03-0810251 NAP ####### 29,915.36 120
Apartments
164 03-0810191 GCM Conquistador 164 03-0810191 NAP ####### 31,140.79 120
Apartments
165 11432 GCM Greenhill 165 11432 NAP ####### 30,958.56 120
Corporate
Center
166 03-0812034 GCM Northridge 166 03-0812034 NAP ####### 30,027.20 120
Apartments
167 03-0812035 GCM Red Coach 167 03-0812035 NAP ####### 30,027.20 120
Village
Apartments
170 03-0812036 GCM The Trane 170 03-0812036 NAP ####### 29,883.12 120
Company
Building
177 03-0812019 GCM Wythe Shopping 177 03-0812019 NAP ####### 27,640.34 120
Center
180 03-0812029 GCM 801 West 180 03-0812029 NAP ####### 27,332.71 120
Diversey
Parkway
181 9.91E+09 GCM Lafayette 181 9.91E+09 NAP ####### 25,233.00 120
Business
Park
182 11573 GCM Arrow Business 182 11573 NAP ####### 24,667.94 120
Center
185 03-0812603 GCM Crossroads 185 03-0812603 NAP ####### 24,542.19 120
Professional
Building
187 HHCC0064 GCM Fran Murphy 187 HHCC0064 NAP ####### 24,088.51 120
Building
188 03-0810412 GCM Walgreen's - 188 03-0810412 NAP ####### 23,692.13 120
South
Medford
189 03-0810210 GCM Sav-on and 189 03-0810210 NAP ####### 22,012.94 120
Carl's Jr.
192 10896 GCM Weatherbridge 192 10896 NAP ####### 28,612.45 180
Center
Buildings II
and III
194 9.904E+09 GCM 1201 Sharp 194 9.904E+09 NAP ####### 21,121.39 120
Street
197 03-0810241 GCM Redondo Tower 197 03-0810241 NAP ####### 19,023.53 120
Apartments
203 9.906E+09 GCM Pioneer Point 203 9.906E+09 NAP ####### 18,928.68 120
Apartments
206 2E+10 GCM 6396, 6392, 206 2E+10 NAP ####### 18,715.00 120
6372
McLeod Drive
210 03-0812016 GCM Summit/Breckenridge 210 03-0812016 NAP ####### 19,309.28 120
Apartments
211 HHCC0063 GCM Peppertree 211 HHCC0063 NAP ####### 17,688.52 120
Apartments
212 03-0812031 GCM Hillmount 212 03-0812031 NAP ####### 17,564.26 120
Apartments
216 03-0812030 GCM Oakwood Manor 216 03-0812030 NAP ####### 16,671.16 120
Apartments
217 03-0812602 GCM Woodbend 217 03-0812602 NAP ####### 16,200.62 120
Apartments
221 03-0810254 GCM U-Stor 221 03-0810254 NAP ####### 15,881.48 120
Chambers
Self-Storage
222 03-0810218 GCM 9925-9929 222 03-0810218 NAP ####### 15,406.63 120
Jefferson
Boulevard
226 03-0810232 GCM Oro Valley 226 03-0810232 NAP ####### 13,233.00 120
Self
Storage
231 03-0812045a GCM Senate Place 231 03-0812045a NAP ####### 6,679.84 120
Apartments
232 03-0812045b GCM Eastfield 232 03-0812045b NAP ####### 5,094.80 120
Townhouses
242 2.001E+10 GCM 6380 McLeod 242 2.001E+10 NAP ####### 10,654.23 120
Drive
250 03-0810220 GCM 6668 Owens 250 03-0810220 NAP ####### 9,303.10 120
Drive
251 2.001E+10 GCM 6320 - 6330 251 2.001E+10 NAP ####### 9,748.14 120
McLeod Drive
252 03-0810627 GCM Rite Aid - 252 03-0810627 NAP ####### 11,204.99 204
Hillside
258 03-0810237 GCM Nogales Self 258 03-0810237 NAP ####### 8,304.27 120
Storage
259 03-0810238 GCM Glendale West 259 03-0810238 NAP ####### 8,073.59 120
Self
Storage
263 03-0810661 GCM Airport 263 03-0810661 NAP ####### 8,201.06 120
Business
Center
</TABLE>
<TABLE>
<CAPTION>
REMAIN- STATED
STATED ING TERM REMAINING
ORIGINAL TO AMORT- LOAN
AMORTIZATION MATURITY IZATION CUT-OFF BALANCE
CONTROL LOAN ORIGI- LOAN / TERM SEASONING / ARD TERM DATE AT MATURITY
NUMBER NUMBER NATOR PROPERTY NAME (MONTHS) (MONTHS) (MONTHS) (MONTHS) BALANCE /ARD
--------------------------------------------------------- ------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing 360 7 113 353 ####### 3,780,072.41
Retail Center
162 03-0810251 GCM Briarwood 360 2 118 358 ####### 3,727,310.33
Apartments
164 03-0810191 GCM Conquistador 360 16 104 344 ####### 3,767,153.50
Apartments
165 11432 GCM Greenhill 360 2 118 358 ####### 3,688,122.92
Corporate
Center
166 03-0812034 GCM Northridge 360 6 114 354 ####### 3,664,543.96
Apartments
167 03-0812035 GCM Red Coach 360 7 113 353 ####### 3,665,231.99
Village
Apartments
170 03-0812036 GCM The Trane 360 7 113 353 ####### 3,531,334.99
Company
Building
177 03-0812019 GCM Wythe Shopping 360 8 112 352 ####### 3,286,374.38
Center
180 03-0812029 GCM 801 West 360 6 114 354 ####### 3,109,240.20
Diversey
Parkway
181 9.91E+09 GCM Lafayette 360 9 111 351 ####### 3,049,717.75
Business
Park
182 11573 GCM Arrow Business 360 2 118 358 ####### 2,930,489.34
Center
185 03-0812603 GCM Crossroads 300 2 118 298 ####### 2,604,013.03
Professional
Building
187 HHCC0064 GCM Fran Murphy 300 2 118 298 ####### 2,532,797.86
Building
188 03-0810412 GCM Walgreen's - 300 1 119 299 ####### 2,496,191.64
South
Medford
189 03-0810210 GCM Sav-on and 360 3 117 357 ####### 2,682,025.64
Carl's Jr.
192 10896 GCM Weatherbridge 180 4 176 176 ####### 79,398.11
Center
Buildings II
and III
194 9.904E+09 GCM 1201 Sharp 360 11 109 349 ####### 2,504,565.71
Street
197 03-0810241 GCM Redondo Tower 360 5 115 355 ####### 2,323,637.96
Apartments
203 9.906E+09 GCM Pioneer Point 360 17 103 343 ####### 2,240,961.00
Apartments
206 2E+10 GCM 6396, 6392, 360 8 112 352 ####### 2,195,870.09
6372
McLeod Drive
210 03-0812016 GCM Summit/Breckenridge 300 9 111 291 ####### 2,006,116.70
Apartments
211 HHCC0063 GCM Peppertree 360 5 115 355 ####### 2,128,644.62
Apartments
212 03-0812031 GCM Hillmount 360 8 112 352 ####### 2,117,943.65
Apartments
216 03-0812030 GCM Oakwood Manor 360 8 112 352 ####### 2,010,251.98
Apartments
217 03-0812602 GCM Woodbend 360 3 117 357 ####### 1,958,494.26
Apartments
221 03-0810254 GCM U-Stor 360 3 117 357 ####### 1,874,548.25
Chambers
Self-Storage
222 03-0810218 GCM 9925-9929 360 5 115 355 ####### 1,810,431.58
Jefferson
Boulevard
226 03-0810232 GCM Oro Valley 360 5 115 355 ####### 1,557,172.19
Self
Storage
231 03-0812045a GCM Senate Place 360 5 115 355 ####### 797,097.02
Apartments
232 03-0812045b GCM Eastfield 360 5 115 355 ####### 607,954.09
Townhouses
242 2.001E+10 GCM 6380 McLeod 360 3 117 357 ####### 1,266,383.15
Drive
250 03-0810220 GCM 6668 Owens 360 7 113 353 ####### 1,121,963.01
Drive
251 2.001E+10 GCM 6320 - 6330 360 6 114 354 ####### 1,129,578.61
McLeod Drive
252 03-0810627 GCM Rite Aid - 204 18 186 186 ####### 43,283.61
Hillside
258 03-0810237 GCM Nogales Self 360 5 115 355 ####### 977,190.19
Storage
259 03-0810238 GCM Glendale West 360 5 115 355 ####### 950,047.13
Self
Storage
263 03-0810661 GCM Airport 300 14 106 286 ####### 841,317.63
Business
Center
</TABLE>
<TABLE>
<CAPTION>
YIELD YIELD
MAINTEN- MAINTEN- PREPAY- PREPAY-
ANCE ANCE MENT MENT
PERIOD PERIOD PENALTY PENALTY
CONTROL LOAN ORIGI- LOAN / DEFEASE DEFEASE START END START END
NUMBER NUMBER NATOR PROPERTY NAME START DATE END DATE DATE DATE DATE DATE
--------------------------------------------------------- ------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing 01/01/03 01/31/10 NAP NAP NAP NAP
Retail Center
162 03-0810251 GCM Briarwood 01/01/03 03/31/10 NAP NAP NAP NAP
Apartments
164 03-0810191 GCM Conquistador 01/01/03 04/30/09 NAP NAP NAP NAP
Apartments
165 11432 GCM Greenhill 01/01/03 06/30/10 NAP NAP NAP NAP
Corporate
Center
166 03-0812034 GCM Northridge 01/01/03 02/28/10 NAP NAP NAP NAP
Apartments
167 03-0812035 GCM Red Coach 01/01/03 01/31/10 NAP NAP NAP NAP
Village
Apartments
170 03-0812036 GCM The Trane 01/01/03 01/31/10 NAP NAP NAP NAP
Company
Building
177 03-0812019 GCM Wythe Shopping 01/01/03 12/31/09 NAP NAP NAP NAP
Center
180 03-0812029 GCM 801 West 01/01/03 02/28/10 NAP NAP NAP NAP
Diversey
Parkway
181 9.91E+09 GCM Lafayette 01/01/03 11/30/09 NAP NAP NAP NAP
Business
Park
182 11573 GCM Arrow Business 01/01/03 06/30/10 NAP NAP NAP NAP
Center
185 03-0812603 GCM Crossroads 01/01/03 03/31/10 NAP NAP NAP NAP
Professional
Building
187 HHCC0064 GCM Fran Murphy 01/01/03 06/30/10 NAP NAP NAP NAP
Building
188 03-0810412 GCM Walgreen's - 01/01/03 07/31/10 NAP NAP NAP NAP
South
Medford
189 03-0810210 GCM Sav-on and 01/01/03 05/31/10 NAP NAP NAP NAP
Carl's Jr.
192 10896 GCM Weatherbridge 01/01/03 04/30/15 NAP NAP NAP NAP
Center
Buildings II
and III
194 9.904E+09 GCM 1201 Sharp 01/01/03 09/30/09 NAP NAP NAP NAP
Street
197 03-0810241 GCM Redondo Tower 01/01/03 03/31/10 NAP NAP NAP NAP
Apartments
203 9.906E+09 GCM Pioneer Point 01/01/03 06/30/09 NAP NAP NAP NAP
Apartments
206 2E+10 GCM 6396, 6392, 01/01/03 12/31/09 NAP NAP NAP NAP
6372
McLeod Drive
210 03-0812016 GCM Summit/Breckenridge 01/01/03 11/30/09 NAP NAP NAP NAP
Apartments
211 HHCC0063 GCM Peppertree 01/01/03 03/31/10 NAP NAP NAP NAP
Apartments
212 03-0812031 GCM Hillmount 01/01/03 12/31/09 NAP NAP NAP NAP
Apartments
216 03-0812030 GCM Oakwood Manor 01/01/03 12/31/09 NAP NAP NAP NAP
Apartments
217 03-0812602 GCM Woodbend 01/01/03 02/28/10 NAP NAP NAP NAP
Apartments
221 03-0810254 GCM U-Stor 01/01/03 05/31/10 NAP NAP NAP NAP
Chambers
Self-Storage
222 03-0810218 GCM 9925-9929 01/01/03 03/31/10 NAP NAP NAP NAP
Jefferson
Boulevard
226 03-0810232 GCM Oro Valley 01/01/03 03/31/10 NAP NAP NAP NAP
Self
Storage
231 03-0812045a GCM Senate Place 01/01/03 03/31/10 NAP NAP NAP NAP
Apartments
232 03-0812045b GCM Eastfield 01/01/03 03/31/10 NAP NAP NAP NAP
Townhouses
242 2.001E+10 GCM 6380 McLeod 01/01/03 05/31/10 NAP NAP NAP NAP
Drive
250 03-0810220 GCM 6668 Owens 01/01/03 01/31/10 NAP NAP NAP NAP
Drive
251 2.001E+10 GCM 6320 - 6330 01/01/03 02/28/10 NAP NAP NAP NAP
McLeod Drive
252 03-0810627 GCM Rite Aid - 01/01/03 02/29/16 NAP NAP NAP NAP
Hillside
258 03-0810237 GCM Nogales Self 01/01/03 03/31/10 NAP NAP NAP NAP
Storage
259 03-0810238 GCM Glendale West 01/01/03 03/31/10 NAP NAP NAP NAP
Self
Storage
263 03-0810661 GCM Airport 01/01/03 06/30/09 NAP NAP NAP NAP
Business
Center
</TABLE>
<TABLE>
<CAPTION>
YIELD YIELD
MAINTENANCE MAINTENANCE MASTER
CONTROL LOAN ORIGI- LOAN / CALCULATION INTEREST SERVICING
NUMBER NUMBER NATOR PROPERTY NAME METHOD RATE FEE RATE
--------------------------------------------------------- -----------------------------------
<S> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing NAP NAP 0.0200%
Retail Center
162 03-0810251 GCM Briarwood NAP NAP 0.0200%
Apartments
164 03-0810191 GCM Conquistador NAP NAP 0.0200%
Apartments
165 11432 GCM Greenhill NAP NAP 0.0200%
Corporate
Center
166 03-0812034 GCM Northridge NAP NAP 0.0200%
Apartments
167 03-0812035 GCM Red Coach NAP NAP 0.0200%
Village
Apartments
170 03-0812036 GCM The Trane NAP NAP 0.0200%
Company
Building
177 03-0812019 GCM Wythe Shopping NAP NAP 0.0200%
Center
180 03-0812029 GCM 801 West NAP NAP 0.0200%
Diversey
Parkway
181 9.91E+09 GCM Lafayette NAP NAP 0.0200%
Business
Park
182 11573 GCM Arrow Business NAP NAP 0.0200%
Center
185 03-0812603 GCM Crossroads NAP NAP 0.0200%
Professional
Building
187 HHCC0064 GCM Fran Murphy NAP NAP 0.0200%
Building
188 03-0810412 GCM Walgreen's - NAP NAP 0.0200%
South
Medford
189 03-0810210 GCM Sav-on and NAP NAP 0.0200%
Carl's Jr.
192 10896 GCM Weatherbridge NAP NAP 0.0200%
Center
Buildings II
and III
194 9.904E+09 GCM 1201 Sharp NAP NAP 0.0200%
Street
197 03-0810241 GCM Redondo Tower NAP NAP 0.0200%
Apartments
203 9.906E+09 GCM Pioneer Point NAP NAP 0.0200%
Apartments
206 2E+10 GCM 6396, 6392, NAP NAP 0.0200%
6372
McLeod Drive
210 03-0812016 GCM Summit/Breckenridge NAP NAP 0.0200%
Apartments
211 HHCC0063 GCM Peppertree NAP NAP 0.0200%
Apartments
212 03-0812031 GCM Hillmount NAP NAP 0.0200%
Apartments
216 03-0812030 GCM Oakwood Manor NAP NAP 0.0200%
Apartments
217 03-0812602 GCM Woodbend NAP NAP 0.0200%
Apartments
221 03-0810254 GCM U-Stor NAP NAP 0.0200%
Chambers
Self-Storage
222 03-0810218 GCM 9925-9929 NAP NAP 0.0200%
Jefferson
Boulevard
226 03-0810232 GCM Oro Valley NAP NAP 0.0200%
Self
Storage
231 03-0812045a GCM Senate Place NAP NAP 0.0200%
Apartments
232 03-0812045b GCM Eastfield NAP NAP 0.0200%
Townhouses
242 2.001E+10 GCM 6380 McLeod NAP NAP 0.0200%
Drive
250 03-0810220 GCM 6668 Owens NAP NAP 0.0200%
Drive
251 2.001E+10 GCM 6320 - 6330 NAP NAP 0.0200%
McLeod Drive
252 03-0810627 GCM Rite Aid - NAP NAP 0.0200%
Hillside
258 03-0810237 GCM Nogales Self NAP NAP 0.0200%
Storage
259 03-0810238 GCM Glendale West NAP NAP 0.0200%
Self
Storage
263 03-0810661 GCM Airport NAP NAP 0.0200%
Business
Center
</TABLE>
2
<PAGE> 293
EXHIBIT B-1C
SCHEDULE OF AMCC MORTGAGE LOANS
[See Attached Schedule]
B-1C-1
<PAGE> 294
<TABLE>
<CAPTION>
PROP-
ERTY
SIZE
CONTROL LOAN ORIGI- LOAN / PROPERTY ZIP PROPERTY UNIT
NUMBER NUMBER NATOR PROPERTY NAME ADDRESS CITY STATE CODE SIZE TYPE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex Building 12000 Portland Burnsville MN 55337 114,100 SF
Avenue South
137 020-00000065 AMCC Charnelton Place 151 West Seventh Eugene OR 97401 57,410 SF
Office Building Avenue
168 010-00000563 AMCC K-Mart Shopping 1901 East Savannah GA 31404 111,043 SF
Center - Savannah Victory Drive
172 010-00000561 AMCC K-Mart Shopping 1508 Gallatin Madison TN 37115 103,482 SF
Center - Road
Nashville
173 010-00000540 AMCC 2150 Joshua's 2150 Joshua's Hauppauge NY 11788 47,849 SF
Path Path
174 010-00000501 AMCC Ver-Sa-Til 18400 West 77th Chanhassen MN 55317 107,795 SF
Street
178 010-00000467 AMCC Pencader 110 Lake Drive Newark DE 19702 79,184 SF
Corporate Center
184 010-00000542 AMCC Cedar Marketplace 14638 & 14658 Apple MN 55124 26,887 SF
Cedar Avenue Valley
South
190 010-00000595 AMCC The Shops at 494-538 Enon Smyrna TN 37167 32,000 SF
Enon Springs Springs Road
East
191 010-00000617 AMCC Sierra Heartland 1994 Shaw Avenue Clovis CA 93611 60 Units
Senior Apartments
195 010-00000612 AMCC RPS Warehouse 95 Broderick Colonie NY 12205 63,633 SF
Street Extension
196 010-00000583 AMCC 755 & 775 Fiero 755 & 775 Fiero San Luis CA 93401 43,896 SF
Lane Lane Obispo
198 010-00000519 AMCC Plaza II Office 1200 Chesterly Yakima WA 98902 30,680 SF
Building Drive
200 010-00000393 AMCC Carriage House 4700 South Cliff Sioux Falls SD 57103 30 Units
Apartment Avenue
- Sioux Falls
201 010-00000394 AMCC Carriage House 1511 8th Street Brookings SD 57006 25 Units
Apartment South
- Brookings
202 010-00000392 AMCC Carriage House 1300 North Pierre SD 57501 25 Units
Apartment Harrison Avenue
- Pierre
204 010-00000634 AMCC CVS Harper Center 23975-24001 St. Clair MI 48080 24,662 SF
Harper Avenue Shores
213 010-00000594 AMCC 1500 Renaissance 1500 Renaissance Albuquerque NM 87107 36,435 SF
Building Boulevard N.E.
214 010-00000623 AMCC Etinuum Office 1001 East Main Yukon OK 73099 35,501 SF
Building Street
215 020-00000061 AMCC DHR Office 315 South Oregon City OR 97045 32,952 SF
Building Beavercreek Road
218 010-00000494 AMCC Warminster 318-356 Old York Warminster PA 18974 28,390 SF
Shopping Center Road
219 010-00000276 AMCC PBR II 738-746 West Costa Mesa CA 92627 28,996 SF
17th Street
220 010-00000260 AMCC PBR I 1638 Placentia Costa Mesa CA 92626 26,163 SF
Avenue
223 010-00000470 AMCC 810-812 Fiero 810-812 Fiero San Luis CA 93401 31,682 SF
Lane Lane Obispo
224 010-00000568 AMCC Lab Corp of 212 Cherry Lane New Castle DE 19720 26,800 SF
America Hundred
227 010-00000620 AMCC Hillcrest 18200 Georgia Olney MD 20832 19,233 SF
Retail/Office Avenue
Shopping Center
228 010-00000459 AMCC Cain Drive 66 to 126 Cain Brentwood NY 11717 49,600 SF
Warehouses Drive
230 010-00000442 AMCC Macy Building 145-155 North Sunnyvale CA 94086 21,410 SF
Wolfe Road
234 010-00000507 AMCC The Culver 10811 Washington Culver City CA 90232 22,849 SF
Building Boulevard
235 010-00000491 AMCC Harvard 4415 South Tulsa OK 74135 30,879 SF
Physicians Harvard Avenue
Building
236 010-00000299 AMCC Lyon Street 1620-1640 East Santa Ana CA 92702 19,035 SF
Retail 1st Street
237 010-00000360 AMCC 350 Newton 350 Newton Oakland CA 94606 42 Units
Avenue Apartments Avenue
238 010-00000522 AMCC Solar Gardens 3600 & 3610 East Sioux Falls SD 57103 60 Units
Sixth Street
239 010-00000291 AMCC Quality Suites 5251 San Antonio Albuquerque NM 87109 69 Rooms
Albuquerque Drive NE
240 010-00000603 AMCC Springville 786 West 1200 Springville UT 84663 34,500 SF
Corners North
241 010-00000325 AMCC 224-234 East 224-234 East Westfield NJ 07090 9,188 SF
Broad Street Broad Street
243 010-00000219 AMCC Black Mountain 9625 Black San Diego CA 92126 34,855 SF
Point Office Mountain Road
Building
244 010-00000627 AMCC Waste Management 8111 1st Avenue Seattle WA 98108 20,000 SF
Building South
245 010-00000551 AMCC Silver Lake Plaza 291 West Coeur ID 83814 16,584 SF
Canfield Avenue D'Alene
246 010-00000533 AMCC Checkmate 4755 & 4735 Las Vegas NV 89109 51 Units
Apartments Deckow Lane
247 010-00000626 AMCC Creekside Center 3940-3958 Nashville TN 37218 14,800 SF
Clarksville
Highway
</TABLE>
<TABLE>
<CAPTION>
CROSS
COLLATER-
ALIZED
MORTGAGE
CROSS LOAN GROUP
COLLATER- AGGREGATE
ALIZED CUT-OFF OWNER
CONTROL LOAN ORIGI- LOAN / (MORTGAGE DATE -SHIP ORIGINAL MORTGAGE
NUMBER NUMBER NATOR PROPERTY NAME LOAN GROUP) BALANCE INTEREST BALANCE RATE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex Building No 6,781,144 Fee Simple 6,800,000 8.7500%
137 020-00000065 AMCC Charnelton Place No 6,709,489 Fee Simple 6,750,000 8.3000%
Office Building
168 010-00000563 AMCC K-Mart Shopping No 4,064,239 Fee Simple 4,090,446 8.0500%
Center - Savannah
172 010-00000561 AMCC K-Mart Shopping No 3,815,939 Fee Simple 3,840,545 8.0500%
Center -
Nashville
173 010-00000540 AMCC 2150 Joshua's No 3,773,850 Fee Simple 3,800,000 8.0500%
Path
174 010-00000501 AMCC Ver-Sa-Til No 3,711,532 Fee Simple 3,750,000 7.8750%
178 010-00000467 AMCC Pencader No 3,603,874 Fee Simple 3,640,000 8.0000%
Corporate Center
184 010-00000542 AMCC Cedar Marketplace No 3,175,358 Fee Simple 3,200,000 8.0000%
190 010-00000595 AMCC The Shops at No 2,884,068 Fee Simple 2,895,000 8.1000%
Enon Springs
191 010-00000617 AMCC Sierra Heartland No 2,843,557 Fee Simple 2,850,000 8.0000%
Senior Apartments
195 010-00000612 AMCC RPS Warehouse No 2,694,185 Fee Simple 2,700,000 8.1800%
196 010-00000583 AMCC 755 & 775 Fiero No 2,688,987 Fee Simple 2,700,000 8.7500%
Lane
198 010-00000519 AMCC Plaza II Office No 2,561,222 Fee Simple 2,600,000 8.0000%
Building
200 010-00000393 AMCC Carriage House Yes (A6) 2,524,342 Fee Simple 1,100,000 7.5000%
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage House Yes (A6) 2,524,342 Fee Simple 835,000 7.5000%
Apartment
- Brookings
202 010-00000392 AMCC Carriage House Yes (A6) 2,524,342 Fee Simple 690,000 7.5000%
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper Center No 2,448,406 Fee Simple 2,450,000 8.1500%
213 010-00000594 AMCC 1500 Renaissance No 2,292,601 Fee Simple 2,300,000 8.6500%
Building
214 010-00000623 AMCC Etinuum Office No 2,273,697 Fee Simple 2,275,000 8.7700%
Building
215 020-00000061 AMCC DHR Office No 2,264,274 Fee Simple 2,300,000 8.1000%
Building
218 010-00000494 AMCC Warminster No 2,171,989 Fee Simple 2,200,000 8.4000%
Shopping Center
219 010-00000276 AMCC PBR II Yes (A7) 2,077,768 Fee Simple 1,245,000 7.3500%
220 010-00000260 AMCC PBR I Yes (A7) 2,077,768 Fee Simple 900,000 7.4500%
223 010-00000470 AMCC 810-812 Fiero No 1,967,730 Fee Simple 2,000,000 7.9000%
Lane
224 010-00000568 AMCC Lab Corp of No 1,836,081 Fee Simple 1,868,000 8.4500%
America
227 010-00000620 AMCC Hillcrest No 1,696,219 Fee Simple 1,700,000 8.6800%
Retail/Office
Shopping Center
228 010-00000459 AMCC Cain Drive No 1,674,172 Fee Simple 1,700,000 8.5000%
Warehouses
230 010-00000442 AMCC Macy Building No 1,662,578 Fee Simple 1,700,000 7.5000%
234 010-00000507 AMCC The Culver No 1,487,285 Fee Simple 1,500,000 8.2000%
Building
235 010-00000491 AMCC Harvard No 1,477,144 Fee Simple 1,500,000 8.2000%
Physicians
Building
236 010-00000299 AMCC Lyon Street No 1,455,429 Fee Simple 1,600,000 7.7500%
Retail
237 010-00000360 AMCC 350 Newton No 1,451,686 Fee Simple 1,500,000 6.7500%
Avenue Apartments
238 010-00000522 AMCC Solar Gardens No 1,446,057 Fee Simple 1,470,000 7.8500%
239 010-00000291 AMCC Quality Suites No 1,438,473 Fee Simple 1,481,366 7.8000%
Albuquerque
240 010-00000603 AMCC Springville No 1,435,710 Fee Simple 1,440,000 8.5000%
Corners
241 010-00000325 AMCC 224-234 East No 1,425,428 Fee Simple 1,500,000 7.2500%
Broad Street
243 010-00000219 AMCC Black Mountain No 1,402,110 Fee Simple 1,450,000 7.9000%
Point Office
Building
244 010-00000627 AMCC Waste Management No 1,393,577 Fee Simple 1,400,000 8.4900%
Building
245 010-00000551 AMCC Silver Lake Plaza No 1,391,114 Fee Simple 1,400,000 8.3500%
246 010-00000533 AMCC Checkmate No 1,345,548 Fee Simple 1,356,600 8.3500%
Apartments
247 010-00000626 AMCC Creekside Center No 1,273,771 Fee Simple 1,275,000 8.5500%
</TABLE>
<TABLE>
<CAPTION>
INTEREST
CONTROL LOAN ORIGI- LOAN / RATE ACCRUAL LOAN NOTE
NUMBER NUMBER NATOR PROPERTY NAME TYPE METHOD TYPE DATE
----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex Building Fixed Actual/360 Balloon 05/09/00
137 020-00000065 AMCC Charnelton Place Fixed Actual/360 Balloon 12/23/99
Office Building
168 010-00000563 AMCC K-Mart Shopping Fixed Actual/360 Balloon 12/13/99
Center - Savannah
172 010-00000561 AMCC K-Mart Shopping Fixed Actual/360 Balloon 12/13/99
Center -
Nashville
173 010-00000540 AMCC 2150 Joshua's Fixed Actual/360 Balloon 11/04/99
Path
174 010-00000501 AMCC Ver-Sa-Til Fixed Actual/360 Balloon 06/21/99
178 010-00000467 AMCC Pencader Fixed Actual/360 Balloon 06/14/99
Corporate Center
184 010-00000542 AMCC Cedar Marketplace Fixed Actual/360 Balloon 10/01/99
190 010-00000595 AMCC The Shops at Fixed Actual/360 Balloon 04/26/00
Enon Springs
191 010-00000617 AMCC Sierra Heartland Fixed Actual/360 Balloon 07/07/00
Senior Apartments
195 010-00000612 AMCC RPS Warehouse Fixed Actual/360 Balloon 07/05/00
196 010-00000583 AMCC 755 & 775 Fiero Fixed Actual/360 Balloon 02/28/00
Lane
198 010-00000519 AMCC Plaza II Office Fixed Actual/360 Balloon 08/25/99
Building
200 010-00000393 AMCC Carriage House Fixed 30/360 Full Amort 03/31/99
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage House Fixed 30/360 Full Amort 03/31/99
Apartment
- Brookings
202 010-00000392 AMCC Carriage House Fixed 30/360 Full Amort 03/31/99
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper Center Fixed Actual/360 Balloon 10/05/00
213 010-00000594 AMCC 1500 Renaissance Fixed Actual/360 Balloon 04/14/00
Building
214 010-00000623 AMCC Etinuum Office Fixed Actual/360 Balloon 10/13/00
Building
215 020-00000061 AMCC DHR Office Fixed Actual/360 Balloon 07/28/99
Building
218 010-00000494 AMCC Warminster Fixed Actual/360 Balloon 09/07/99
Shopping Center
219 010-00000276 AMCC PBR II Fixed Actual/360 Balloon 08/03/98
220 010-00000260 AMCC PBR I Fixed Actual/360 Balloon 08/03/98
223 010-00000470 AMCC 810-812 Fiero Fixed Actual/360 Balloon 07/08/99
Lane
224 010-00000568 AMCC Lab Corp of Fixed Actual/360 Balloon 12/23/99
America
227 010-00000620 AMCC Hillcrest Fixed Actual/360 Balloon 06/23/00
Retail/Office
Shopping Center
228 010-00000459 AMCC Cain Drive Fixed Actual/360 Balloon 06/21/99
Warehouses
230 010-00000442 AMCC Macy Building Fixed Actual/360 Balloon 03/26/99
234 010-00000507 AMCC The Culver Fixed Actual/360 Balloon 08/12/99
Building
235 010-00000491 AMCC Harvard Fixed Actual/360 Balloon 07/27/99
Physicians
Building
236 010-00000299 AMCC Lyon Street Fixed 30/360 Full Amort 07/09/98
Retail
237 010-00000360 AMCC 350 Newton Fixed Actual/360 Balloon 10/19/98
Avenue Apartments
238 010-00000522 AMCC Solar Gardens Fixed Actual/360 Balloon 07/23/99
239 010-00000291 AMCC Quality Suites Fixed 30/360 Full Amort 09/24/99
Albuquerque
240 010-00000603 AMCC Springville Fixed Actual/360 Balloon 05/12/00
Corners
241 010-00000325 AMCC 224-234 East Fixed Actual/360 Balloon 09/18/98
Broad Street
243 010-00000219 AMCC Black Mountain Fixed Actual/360 Balloon 04/28/98
Point Office
Building
244 010-00000627 AMCC Waste Management Fixed Actual/360 Balloon 08/04/00
Building
245 010-00000551 AMCC Silver Lake Plaza Fixed Actual/360 Balloon 10/27/99
246 010-00000533 AMCC Checkmate Fixed Actual/360 Balloon 08/06/99
Apartments
247 010-00000626 AMCC Creekside Center Fixed Actual/360 Balloon 09/28/00
</TABLE>
<TABLE>
<CAPTION>
ANTICI- ORIGINAL
PATED MONTHLY TERM TO
REPAY- SCHEDULED DEBT MATURITY /
CONTROL LOAN ORIGI- LOAN / CONTROL LOAN MENT MATURITY SERVICE ARD
NUMBER NUMBER NATOR PROPERTY NAME NUMBER NUMBER DATE DATE PAYMENT (MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex Building 136 010-0000598 NAP 06/01/10 53,495.63 120
137 020-00000065 AMCC Charnelton Place 137 020-0000065 NAP 01/01/10 50,947.96 120
Office Building
168 010-00000563 AMCC K-Mart Shopping 168 010-0000563 NAP 01/01/10 30,156.95 120
Center - Savannah
172 010-00000561 AMCC K-Mart Shopping 172 010-0000561 NAP 01/01/10 28,314.54 120
Center -
Nashville
173 010-00000540 AMCC 2150 Joshua's 173 010-0000540 NAP 12/01/09 28,015.63 120
Path
174 010-00000501 AMCC Ver-Sa-Til 174 010-0000501 NAP 07/01/09 27,190.11 120
178 010-00000467 AMCC Pencader 178 010-0000467 NAP 07/01/09 26,709.04 120
Corporate Center
184 010-00000542 AMCC Cedar Marketplace 184 010-0000542 NAP 11/01/09 23,480.47 120
190 010-00000595 AMCC The Shops at 190 010-0000595 NAP 05/01/10 21,444.65 120
Enon Springs
191 010-00000617 AMCC Sierra Heartland 191 010-0000617 NAP 08/01/10 20,912.30 120
Senior Apartments
195 010-00000612 AMCC RPS Warehouse 195 010-0000612 NAP 08/01/10 20,151.49 120
196 010-00000583 AMCC 755 & 775 Fiero 196 010-0000583 NAP 03/01/10 21,240.92 120
Lane
198 010-00000519 AMCC Plaza II Office 198 010-0000519 NAP 09/01/09 20,067.23 120
Building
200 010-00000393 AMCC Carriage House 200 010-0000393 NAP 04/01/19 8,861.53 240
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage House 201 010-0000394 NAP 04/01/19 6,726.71 240
Apartment
- Brookings
202 010-00000392 AMCC Carriage House 202 010-0000392 NAP 04/01/19 5,558.60 240
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper Center 204 010-0000634 NAP 11/01/10 18,234.08 120
213 010-00000594 AMCC 1500 Renaissance 213 010-0000594 NAP 05/01/10 17,930.10 120
Building
214 010-00000623 AMCC Etinuum Office 214 010-0000623 NAP 11/01/10 17,929.95 120
Building
215 020-00000061 AMCC DHR Office 215 020-0000061 NAP 08/01/09 17,904.41 120
Building
218 010-00000494 AMCC Warminster 218 010-0000494 NAP 10/01/09 17,566.99 120
Shopping Center
219 010-00000276 AMCC PBR II 219 010-0000276 NAP 09/01/08 9,079.32 120
220 010-00000260 AMCC PBR I 220 010-0000260 NAP 09/01/08 6,621.68 120
223 010-00000470 AMCC 810-812 Fiero 223 010-0000470 NAP 08/01/11 15,304.07 144
Lane
224 010-00000568 AMCC Lab Corp of 224 010-0000568 NAP 01/01/10 16,151.88 120
America
227 010-00000620 AMCC Hillcrest 227 010-0000620 NAP 07/01/10 13,289.01 120
Retail/Office
Shopping Center
228 010-00000459 AMCC Cain Drive 228 010-0000459 NAP 07/01/09 13,688.87 120
Warehouses
230 010-00000442 AMCC Macy Building 230 010-0000442 NAP 04/01/09 12,562.86 120
234 010-00000507 AMCC The Culver 234 010-0000507 NAP 09/01/09 11,216.32 120
Building
235 010-00000491 AMCC Harvard 235 010-0000491 NAP 08/01/09 11,776.68 120
Physicians
Building
236 010-00000299 AMCC Lyon Street 236 010-0000299 NAP 08/01/13 15,060.41 180
Retail
237 010-00000360 AMCC 350 Newton 237 010-0000360 NAP 11/01/08 10,363.68 120
Avenue Apartments
238 010-00000522 AMCC Solar Gardens 238 010-0000522 NAP 08/01/09 11,200.02 120
239 010-00000291 AMCC Quality Suites 239 010-0000291 NAP 02/01/19 12,360.55 233
Albuquerque
240 010-00000603 AMCC Springville 240 010-0000603 NAP 06/01/10 11,072.36 120
Corners
241 010-00000325 AMCC 224-234 East 241 010-0000325 NAP 10/01/09 11,855.64 132
Broad Street
243 010-00000219 AMCC Black Mountain 243 010-0000219 NAP 05/01/08 11,095.46 120
Point Office
Building
244 010-00000627 AMCC Waste Management 244 010-0000627 NAP 09/01/10 12,140.67 120
Building
245 010-00000551 AMCC Silver Lake Plaza 245 010-0000551 NAP 12/01/09 10,616.32 120
246 010-00000533 AMCC Checkmate 246 010-0000533 NAP 09/01/09 10,287.21 120
Apartments
247 010-00000626 AMCC Creekside Center 247 010-0000626 NAP 10/01/10 9,848.87 120
</TABLE>
<TABLE>
<CAPTION>
STATED REMAINING STATED
ORIGINAL TERM REMAINING
AMORT- TO AMORT-
IZATION SEASON- MATURITY IZATION CUT-OFF LOAN BALANCE
CONTROL LOAN ORIGI- LOAN / TERM ING / ARD TERM DATE AT MATURITY /
NUMBER NUMBER NATOR PROPERTY NAME (MONTHS) (MONTHS) (MONTHS) (MONTHS) BALANCE ARD
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex Building 360 6 114 354 6,781,144.09 6,186,090.30
137 020-00000065 AMCC Charnelton Place 360 11 109 349 6,709,489.20 6,079,590.97
Office Building
168 010-00000563 AMCC K-Mart Shopping 360 11 109 349 4,064,239.35 3,662,686.85
Center - Savannah
172 010-00000561 AMCC K-Mart Shopping 360 11 109 349 3,815,939.49 3,438,920.50
Center -
Nashville
173 010-00000540 AMCC 2150 Joshua's 360 12 108 348 3,773,850.13 3,403,259.26
Path
174 010-00000501 AMCC Ver-Sa-Til 360 17 103 343 3,711,531.69 3,345,270.03
178 010-00000467 AMCC Pencader 360 17 103 343 3,603,874.20 3,256,943.07
Corporate Center
184 010-00000542 AMCC Cedar Marketplace 360 13 107 347 3,175,357.80 2,862,069.39
190 010-00000595 AMCC The Shops at 360 7 113 353 2,884,067.62 2,595,404.82
Enon Springs
191 010-00000617 AMCC Sierra Heartland 360 4 116 356 2,843,556.89 2,548,408.06
Senior Apartments
195 010-00000612 AMCC RPS Warehouse 360 4 116 356 2,694,185.44 2,424,556.64
196 010-00000583 AMCC 755 & 775 Fiero 360 9 111 351 2,688,987.40 2,456,921.97
Lane
198 010-00000519 AMCC Plaza II Office 300 15 105 285 2,561,221.85 2,143,321.38
Building
200 010-00000393 AMCC Carriage House 240 20 220 220 1,057,819.54 0.00
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage House 240 20 220 220 802,981.13 0.00
Apartment
- Brookings
202 010-00000392 AMCC Carriage House 240 20 220 220 663,541.26 0.00
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper Center 360 1 119 359 2,448,405.50 2,197,976.72
213 010-00000594 AMCC 1500 Renaissance 360 7 113 353 2,292,601.00 2,088,186.15
Building
214 010-00000623 AMCC Etinuum Office 360 1 119 359 2,273,696.51 2,069,819.78
Building
215 020-00000061 AMCC DHR Office 300 16 104 284 2,264,274.12 1,901,880.11
Building
218 010-00000494 AMCC Warminster 300 14 106 286 2,171,988.57 1,834,612.98
Shopping Center
219 010-00000276 AMCC PBR II 300 27 93 273 1,205,693.31 1,006,683.84
220 010-00000260 AMCC PBR I 300 27 93 273 872,075.11 729,924.31
223 010-00000470 AMCC 810-812 Fiero 300 16 128 284 1,967,729.90 1,532,029.41
Lane
224 010-00000568 AMCC Lab Corp of 240 11 109 229 1,836,081.28 1,337,819.84
America
227 010-00000620 AMCC Hillcrest 360 5 115 355 1,696,218.89 1,544,396.30
Retail/Office
Shopping Center
228 010-00000459 AMCC Cain Drive 300 17 103 283 1,674,172.07 1,422,017.64
Warehouses
230 010-00000442 AMCC Macy Building 300 20 100 280 1,662,577.79 1,381,319.08
234 010-00000507 AMCC The Culver 360 15 105 345 1,487,285.20 1,347,998.37
Building
235 010-00000491 AMCC Harvard 300 16 104 284 1,477,144.13 1,243,900.01
Physicians
Building
236 010-00000299 AMCC Lyon Street 180 28 152 152 1,455,429.06 0.69
Retail
237 010-00000360 AMCC 350 Newton 300 25 95 275 1,451,685.83 1,190,449.05
Avenue Apartments
238 010-00000522 AMCC Solar Gardens 300 16 104 284 1,446,056.89 1,206,792.09
239 010-00000291 AMCC Quality Suites 233 15 218 218 1,438,473.02 0.00
Albuquerque
240 010-00000603 AMCC Springville 360 6 114 354 1,435,710.47 1,302,705.26
Corners
241 010-00000325 AMCC 224-234 East 240 26 106 214 1,425,427.52 961,626.42
Broad Street
243 010-00000219 AMCC Black Mountain 300 31 89 269 1,402,109.92 1,192,271.17
Point Office
Building
244 010-00000627 AMCC Waste Management 240 3 117 237 1,393,577.40 1,003,486.28
Building
245 010-00000551 AMCC Silver Lake Plaza 360 12 108 348 1,391,114.33 1,262,663.00
246 010-00000533 AMCC Checkmate 360 15 105 345 1,345,548.08 1,223,376.98
Apartments
247 010-00000626 AMCC Creekside Center 360 2 118 358 1,273,770.53 1,154,619.64
</TABLE>
<TABLE>
<CAPTION>
YIELD
MAINTEN- YIELD PREPAY-
ANCE MAINTEN- MENT
DEFEASE PERIOD ANCE PENALTY
CONTROL LOAN ORIGI- LOAN / START DEFEASE START PERIOD START
NUMBER NUMBER NATOR PROPERTY NAME DATE END DATE DATE END DATE DATE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex Building 07/01/03 02/28/10 NAP NAP NAP
137 020-00000065 AMCC Charnelton Place 02/01/05 09/30/09 NAP NAP NAP
Office Building
168 010-00000563 AMCC K-Mart Shopping 02/01/05 09/30/09 NAP NAP NAP
Center - Savannah
172 010-00000561 AMCC K-Mart Shopping 02/01/05 09/30/09 NAP NAP NAP
Center -
Nashville
173 010-00000540 AMCC 2150 Joshua's NAP NAP 12/01/04 08/31/09 NAP
Path
174 010-00000501 AMCC Ver-Sa-Til 08/01/04 03/31/09 NAP NAP NAP
178 010-00000467 AMCC Pencader NAP NAP 07/01/04 03/31/09 NAP
Corporate Center
184 010-00000542 AMCC Cedar Marketplace 01/01/03 07/31/09 NAP NAP NAP
190 010-00000595 AMCC The Shops at 06/01/05 01/31/10 NAP NAP NAP
Enon Springs
191 010-00000617 AMCC Sierra Heartland 09/01/05 04/30/10 NAP NAP NAP
Senior Apartments
195 010-00000612 AMCC RPS Warehouse 09/01/05 04/30/10 NAP NAP NAP
196 010-00000583 AMCC 755 & 775 Fiero 03/01/05 11/30/09 NAP NAP NAP
Lane
198 010-00000519 AMCC Plaza II Office 10/01/04 05/31/09 NAP NAP NAP
Building
200 010-00000393 AMCC Carriage House NAP NAP 04/01/04 12/31/18 NAP
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage House NAP NAP 04/01/04 12/31/18 NAP
Apartment
- Brookings
202 010-00000392 AMCC Carriage House NAP NAP 04/01/04 12/31/18 NAP
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper Center 12/01/05 07/31/10 NAP NAP NAP
213 010-00000594 AMCC 1500 Renaissance 05/01/05 01/31/10 NAP NAP NAP
Building
214 010-00000623 AMCC Etinuum Office 12/01/05 07/31/10 NAP NAP NAP
Building
215 020-00000061 AMCC DHR Office NAP NAP 08/01/04 04/30/09 NAP
Building
218 010-00000494 AMCC Warminster NAP NAP 10/01/04 06/30/09 NAP
Shopping Center
219 010-00000276 AMCC PBR II NAP NAP 09/01/01 02/29/08 NAP
220 010-00000260 AMCC PBR I NAP NAP 09/01/01 02/29/08 NAP
223 010-00000470 AMCC 810-812 Fiero NAP NAP 08/01/04 04/30/11 NAP
Lane
224 010-00000568 AMCC Lab Corp of NAP NAP 01/01/05 09/30/09 NAP
America
227 010-00000620 AMCC Hillcrest 08/01/05 03/31/10 NAP NAP NAP
Retail/Office
Shopping Center
228 010-00000459 AMCC Cain Drive NAP NAP 07/01/04 03/31/09 NAP
Warehouses
230 010-00000442 AMCC Macy Building NAP NAP 04/01/04 12/31/08 NAP
234 010-00000507 AMCC The Culver NAP NAP 09/01/04 05/31/09 NAP
Building
235 010-00000491 AMCC Harvard NAP NAP 08/01/04 04/30/09 NAP
Physicians
Building
236 010-00000299 AMCC Lyon Street NAP NAP NAP NAP 09/01/01
Retail
237 010-00000360 AMCC 350 Newton NAP NAP 11/01/03 05/31/08 NAP
Avenue Apartments
238 010-00000522 AMCC Solar Gardens NAP NAP 08/01/04 04/30/09 NAP
239 010-00000291 AMCC Quality Suites 03/01/04 01/31/14 NAP NAP NAP
Albuquerque
240 010-00000603 AMCC Springville NAP NAP 07/01/05 02/28/10 NAP
Corners
241 010-00000325 AMCC 224-234 East NAP NAP 10/01/03 03/31/09 NAP
Broad Street
243 010-00000219 AMCC Black Mountain NAP NAP 05/01/03 10/31/07 NAP
Point Office
Building
244 010-00000627 AMCC Waste Management NAP NAP 10/01/05 05/31/10 NAP
Building
245 010-00000551 AMCC Silver Lake Plaza NAP NAP 12/01/04 08/31/09 NAP
246 010-00000533 AMCC Checkmate 10/01/02 05/31/09 NAP NAP NAP
Apartments
247 010-00000626 AMCC Creekside Center 11/01/05 06/30/10 NAP NAP NAP
</TABLE>
<TABLE>
<CAPTION>
YIELD
PREPAY- MAINT- YIELD
MENT ENANCE MAINTEN-
PENALTY CALCUL- ANCE MASTER
CONTROL LOAN ORIGI- LOAN / END ATION INTEREST SERVICING
NUMBER NUMBER NATOR PROPERTY NAME DATE METHOD RATE FEE RATE
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex Building NAP NAP NAP 0.0200%
137 020-00000065 AMCC Charnelton Place NAP NAP NAP 0.0200%
Office Building
168 010-00000563 AMCC K-Mart Shopping NAP NAP NAP 0.0200%
Center - Savannah
172 010-00000561 AMCC K-Mart Shopping NAP NAP NAP 0.0200%
Center -
Nashville
173 010-00000540 AMCC 2150 Joshua's NAP Present Value Treasury 0.0200%
Path Flat-WAL
174 010-00000501 AMCC Ver-Sa-Til NAP NAP NAP 0.0200%
178 010-00000467 AMCC Pencader NAP Present Value Treasury 0.0200%
Corporate Center Flat-WAL
184 010-00000542 AMCC Cedar Marketplace NAP NAP NAP 0.0200%
190 010-00000595 AMCC The Shops at NAP NAP NAP 0.0200%
Enon Springs
191 010-00000617 AMCC Sierra Heartland NAP NAP NAP 0.0200%
Senior Apartments
195 010-00000612 AMCC RPS Warehouse NAP NAP NAP 0.0200%
196 010-00000583 AMCC 755 & 775 Fiero NAP NAP NAP 0.0200%
Lane
198 010-00000519 AMCC Plaza II Office NAP NAP NAP 0.0200%
Building
200 010-00000393 AMCC Carriage House NAP Present Value Treasury 0.0200%
Apartment Flat-WAL
- Sioux Falls
201 010-00000394 AMCC Carriage House NAP Present Value Treasury 0.0200%
Apartment Flat-WAL
- Brookings
202 010-00000392 AMCC Carriage House NAP Present Value Treasury 0.0200%
Apartment Flat-WAL
- Pierre
204 010-00000634 AMCC CVS Harper Center NAP NAP NAP 0.0200%
213 010-00000594 AMCC 1500 Renaissance NAP NAP NAP 0.0200%
Building
214 010-00000623 AMCC Etinuum Office NAP NAP NAP 0.0200%
Building
215 020-00000061 AMCC DHR Office NAP Present Value Treasury 0.0200%
Building Flat-WAL
218 010-00000494 AMCC Warminster NAP Present Value Treasury 0.0200%
Shopping Center Flat-WAL
219 010-00000276 AMCC PBR II NAP Present Value Treasury 0.0200%
Flat-WAL
220 010-00000260 AMCC PBR I NAP Present Value Treasury 0.0200%
Flat-WAL
223 010-00000470 AMCC 810-812 Fiero NAP Present Value Treasury 0.0200%
Lane Flat-WAL
224 010-00000568 AMCC Lab Corp of NAP Present Value Treasury 0.0200%
America Flat-WAL
227 010-00000620 AMCC Hillcrest NAP NAP NAP 0.0200%
Retail/Office
Shopping Center
228 010-00000459 AMCC Cain Drive NAP Present Value Treasury 0.0200%
Warehouses Flat-WAL
230 010-00000442 AMCC Macy Building NAP Present Value Treasury 0.0200%
Flat-WAL
234 010-00000507 AMCC The Culver NAP Present Value Treasury 0.0200%
Building Flat-WAL
235 010-00000491 AMCC Harvard NAP Present Value Treasury 0.0200%
Physicians Flat-WAL
Building
236 010-00000299 AMCC Lyon Street 07/31/13 NAP NAP 0.0200%
Retail
237 010-00000360 AMCC 350 Newton NAP Present Value Treasury 0.0200%
Avenue Apartments Flat-WAL
238 010-00000522 AMCC Solar Gardens NAP Present Value Treasury 0.0200%
Flat-WAL
239 010-00000291 AMCC Quality Suites NAP NAP NAP 0.0200%
Albuquerque
240 010-00000603 AMCC Springville NAP Present Value Treasury 0.0200%
Corners Flat-WAL
241 010-00000325 AMCC 224-234 East NAP Present Value Treasury 0.0200%
Broad Street Flat-WAL
243 010-00000219 AMCC Black Mountain NAP Present Value Treasury 0.0200%
Point Office Flat-WAL
Building
244 010-00000627 AMCC Waste Management NAP Present Value Treasury 0.0200%
Building Flat-WAL
245 010-00000551 AMCC Silver Lake Plaza NAP Present Value Treasury 0.0200%
Flat-WAL
246 010-00000533 AMCC Checkmate NAP NAP NAP 0.0200%
Apartments
247 010-00000626 AMCC Creekside Center NAP NAP NAP 0.0200%
</TABLE>
B-1C-1
<PAGE> 295
<TABLE>
<CAPTION>
PROP-
ERTY
SIZE
CONTROL LOAN ORIGI- LOAN / PROPERTY ZIP PROPERTY UNIT
NUMBER NUMBER NATOR PROPERTY NAME ADDRESS CITY STATE CODE SIZE TYPE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne Center 31722 West Carnation WA 98014 28,464 SF
Eugene Street
249 010-00000318 AMCC South Fridley 1050, 1090, 1120 Fridley MN 55421 64 Units
Apartments & 1170 52nd
Avenue NE
253 010-00000298 AMCC Howard Johnson 335 London Lake AZ 86403 47 Rooms
Lake Havasu Bridge Road Havasu City
255 010-00000480 AMCC 261 East 300 261 East 300 Salt Lake UT 84111 23,666 SF
South South City
256 010-00000316 AMCC Hyde Park 1350, 1352, New MN 55112 68 Units
Apartments 1354, 1362 7th Brighton
Street NW
257 010-00000636 AMCC Hawthorne 5893-5899 Raytown MO 64133 41,916 SF
Business Park Raytown Road
260 010-00000505 AMCC Lovell Building 9030 Red Branch Columbia MD 21045 20,388 SF
Road
261 010-00000441 AMCC Nationwide 2220 South East RI 02818 11,695 SF
Insurance Office County Trail Greenwich
Building (Route 2)
262 010-00000380 AMCC Attache Building 275 Century Louisville CO 80027 10,300 SF
Circle
264 010-00000555 AMCC Bluebonnet 100 Bluebonnet Stephenville TX 76401 80 Units
Apartments Street
265 010-00000534 AMCC 8th Street 210, 214 and 218 Las Vegas NV 89101 36 Units
Apartments South 8th Street
267 020-00000029 AMCC Ralph's Grocery 2035 4th Avenue Seattle WA 98121 10,997 SF
& Deli
268 020-00000055 AMCC Market Square 1520 24th Street Billings MT 59102 12,533 SF
West
269 010-00000334 AMCC Blockbuster 824 & 836 West Salt Lake UT 84116 7,975 SF
Video-Salt Lake North Temple City
City
270 010-00000366 AMCC Prudential 4710 Table Mesa Boulder CO 80303 8,674 SF
Wise-McIntire Drive
Office Building
271 020-00000023 AMCC Licton Springs 9242 Ashworth Seattle WA 98103 16 Units
Court Apartments Avenue North
272 010-00000212 AMCC Surgicenter of 23500 Madison Torrance CA 90505 9,330 SF
South Bay Street
273 010-00000338 AMCC West Fargo 1321 14th Avenue West Fargo ND 58078 24 Units
Living Center East
274 010-00000457 AMCC Edgewood 607 Kenwood Duluth MN 55811 24 Units
Apartments Avenue
275 010-00000321 AMCC Washington/Shepherd 4810 & 4820 Houston TX 77007 19,069 SF
Retail Center Washington
Avenue
276 010-00000020 AMCC Candlewood 123-131 Clinic New Britain CT 06051 40 Units
Apartments Drive
277 010-00000431 AMCC Bishop Lifting 1410 Harris Houston TX 77220 45,500 SF
Products Street
278 010-00000382 AMCC 188 State Street 188 State Street Portland ME 04101 14,025 SF
279 010-00000259 AMCC Woodstone 8200-8247 North Owasso OK 74055 40 Units
Properties 116th East
Avenue
280 010-00000553 AMCC East Gate Manor 1865 Wilson St. Paul MN 55119 23 Units
Apartments Avenue
</TABLE>
<TABLE>
<CAPTION>
CROSS
COLLATER-
ALIZED
MORTGAGE
CROSS LOAN GROUP
COLLATER- AGGREGATE
ALIZED CUT-OFF OWNER
CONTROL LOAN ORIGI- LOAN / (MORTGAGE DATE -SHIP ORIGINAL MORTGAGE
NUMBER NUMBER NATOR PROPERTY NAME LOAN GROUP) BALANCE INTEREST BALANCE RATE
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne Center No 1,257,846 Part Fee 1,300,000 7.4000%
Simple &
Part
Leasehold
249 010-00000318 AMCC South Fridley No 1,256,149 Fee Simple 1,325,000 7.3000%
Apartments
253 010-00000298 AMCC Howard Johnson No 1,148,370 Fee Simple 1,182,907 7.8000%
Lake Havasu
255 010-00000480 AMCC 261 East 300 No 1,128,825 Fee Simple 1,150,000 7.5000%
South
256 010-00000316 AMCC Hyde Park No 1,123,751 Fee Simple 1,180,000 7.3000%
Apartments
257 010-00000636 AMCC Hawthorne No 1,119,278 Fee Simple 1,120,000 8.2000%
Business Park
260 010-00000505 AMCC Lovell Building No 1,040,104 Fee Simple 1,050,000 8.0000%
261 010-00000441 AMCC Nationwide No 1,036,271 Fee Simple 1,075,000 7.9000%
Insurance Office
Building
262 010-00000380 AMCC Attache Building No 1,029,448 Fee Simple 1,060,000 7.4000%
264 010-00000555 AMCC Bluebonnet No 975,505 Fee Simple 985,000 8.6000%
Apartments
265 010-00000534 AMCC 8th Street No 973,008 Fee Simple 981,000 8.3500%
Apartments
267 020-00000029 AMCC Ralph's Grocery No 880,257 Fee Simple 910,000 7.5500%
& Deli
268 020-00000055 AMCC Market Square No 831,794 Fee Simple 850,000 7.9000%
269 010-00000334 AMCC Blockbuster No 823,856 Fee Simple 850,000 7.5000%
Video-Salt Lake
City
270 010-00000366 AMCC Prudential No 761,500 Fee Simple 785,000 7.4000%
Wise-McIntire
Office Building
271 020-00000023 AMCC Licton Springs No 725,049 Fee Simple 750,000 7.4500%
Court Apartments
272 010-00000212 AMCC Surgicenter of No 673,400 Fee Simple 710,000 7.6000%
South Bay
273 010-00000338 AMCC West Fargo No 665,633 Fee Simple 700,000 7.3500%
Living Center
274 010-00000457 AMCC Edgewood No 652,904 Fee Simple 675,000 7.9000%
Apartments
275 010-00000321 AMCC Washington/Shepherd No 641,874 Fee Simple 700,000 7.2500%
Retail Center
276 010-00000020 AMCC Candlewood No 602,312 Fee Simple 630,000 9.3500%
Apartments
277 010-00000431 AMCC Bishop Lifting No 574,976 Fee Simple 650,000 8.2000%
Products
278 010-00000382 AMCC 188 State Street No 508,483 Fee Simple 532,000 7.5000%
279 010-00000259 AMCC Woodstone No 499,921 Fee Simple 550,000 7.6500%
Properties
280 010-00000553 AMCC East Gate Manor No 494,988 Fee Simple 500,000 8.4000%
Apartments
</TABLE>
<TABLE>
<CAPTION>
INTEREST
CONTROL LOAN ORIGI- LOAN / RATE ACCRUAL LOAN NOTE
NUMBER NUMBER NATOR PROPERTY NAME TYPE METHOD TYPE DATE
----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne Center Fixed Actual/360 Balloon 07/30/98
249 010-00000318 AMCC South Fridley Fixed 30/360 Full Amort 09/30/98
Apartments
253 010-00000298 AMCC Howard Johnson Fixed 30/360 Full Amort 09/24/99
Lake Havasu
255 010-00000480 AMCC 261 East 300 Fixed Actual/360 Balloon 06/11/99
South
256 010-00000316 AMCC Hyde Park Fixed 30/360 Full Amort 11/23/98
Apartments
257 010-00000636 AMCC Hawthorne Fixed Actual/360 Balloon 10/31/00
Business Park
260 010-00000505 AMCC Lovell Building Fixed Actual/360 Balloon 07/15/99
261 010-00000441 AMCC Nationwide Fixed Actual/360 Balloon 02/26/99
Insurance Office
Building
262 010-00000380 AMCC Attache Building Fixed Actual/360 Balloon 10/29/98
264 010-00000555 AMCC Bluebonnet Fixed Actual/360 Balloon 12/22/99
Apartments
265 010-00000534 AMCC 8th Street Fixed Actual/360 Balloon 08/06/99
Apartments
267 020-00000029 AMCC Ralph's Grocery Fixed Actual/360 Balloon 06/30/98
& Deli
268 020-00000055 AMCC Market Square Fixed Actual/360 Balloon 02/03/99
269 010-00000334 AMCC Blockbuster Fixed Actual/360 Balloon 08/28/98
Video-Salt Lake
City
270 010-00000366 AMCC Prudential Fixed Actual/360 Balloon 10/02/98
Wise-McIntire
Office Building
271 020-00000023 AMCC Licton Springs Fixed Actual/360 Balloon 06/10/98
Court Apartments
272 010-00000212 AMCC Surgicenter of Fixed Actual/360 Balloon 07/15/98
South Bay
273 010-00000338 AMCC West Fargo Fixed Actual/360 Balloon 09/17/98
Living Center
274 010-00000457 AMCC Edgewood Fixed 30/360 Full Amort 05/05/99
Apartments
275 010-00000321 AMCC Washington/Shepherd Fixed 30/360 Full Amort 10/19/98
Retail Center
276 010-00000020 AMCC Candlewood Fixed 30/360 Balloon 03/13/97
Apartments
277 010-00000431 AMCC Bishop Lifting Fixed 30/360 Full Amort 03/23/99
Products
278 010-00000382 AMCC 188 State Street Fixed Actual/360 Balloon 11/12/98
279 010-00000259 AMCC Woodstone Fixed 30/360 Full Amort 07/23/98
Properties
280 010-00000553 AMCC East Gate Manor Fixed Actual/360 Balloon 12/06/99
Apartments
</TABLE>
<TABLE>
<CAPTION>
ANTICI- ORIGINAL
PATED MONTHLY TERM TO
REPAY- SCHEDULED DEBT MATURITY /
CONTROL LOAN ORIGI- LOAN / CONTROL LOAN MENT MATURITY SERVICE ARD
NUMBER NUMBER NATOR PROPERTY NAME NUMBER NUMBER DATE DATE PAYMENT (MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne Center 248 020-0000030 NAP 08/01/08 9,522.49 120
249 010-00000318 AMCC South Fridley 249 010-0000318 NAP 10/01/18 10,512.66 240
Apartments
253 010-00000298 AMCC Howard Johnson 253 010-0000298 NAP 01/01/19 9,888.44 232
Lake Havasu
255 010-00000480 AMCC 261 East 300 255 010-0000480 NAP 07/01/09 8,498.40 120
South
256 010-00000316 AMCC Hyde Park 256 010-0000316 NAP 12/01/18 9,362.22 240
Apartments
257 010-00000636 AMCC Hawthorne 257 010-0000636 NAP 11/01/10 8,374.85 120
Business Park
260 010-00000505 AMCC Lovell Building 260 010-0000505 NAP 08/01/09 7,704.53 120
261 010-00000441 AMCC Nationwide 261 010-0000441 NAP 03/01/09 8,924.95 120
Insurance Office
Building
262 010-00000380 AMCC Attache Building 262 010-0000380 NAP 11/01/08 7,764.49 120
264 010-00000555 AMCC Bluebonnet 264 010-0000555 NAP 01/01/10 7,997.98 120
Apartments
265 010-00000534 AMCC 8th Street 265 010-0000534 NAP 09/01/09 7,439.01 120
Apartments
267 020-00000029 AMCC Ralph's Grocery 267 020-0000029 NAP 07/01/10 6,754.45 144
& Deli
268 020-00000055 AMCC Market Square 268 020-0000055 NAP 03/01/09 6,504.23 120
269 010-00000334 AMCC Blockbuster 269 010-0000334 NAP 09/01/08 6,281.43 120
Video-Salt Lake
City
270 010-00000366 AMCC Prudential 270 010-0000366 NAP 10/01/08 5,750.12 120
Wise-McIntire
Office Building
271 020-00000023 AMCC Licton Springs 271 020-0000023 NAP 07/01/08 5,518.07 120
Court Apartments
272 010-00000212 AMCC Surgicenter of 272 010-0000212 NAP 08/01/08 5,763.21 120
South Bay
273 010-00000338 AMCC West Fargo 273 010-0000338 NAP 10/01/08 5,575.12 120
Living Center
274 010-00000457 AMCC Edgewood 274 010-0000457 NAP 06/01/19 5,604.04 240
Apartments
275 010-00000321 AMCC Washington/Shepherd 275 010-0000321 NAP 11/01/13 6,390.05 180
Retail Center
276 010-00000020 AMCC Candlewood 276 010-0000020 NAP 04/01/07 5,438.74 120
Apartments
277 010-00000431 AMCC Bishop Lifting 277 010-0000431 NAP 04/01/09 7,955.16 120
Products
278 010-00000382 AMCC 188 State Street 278 010-0000382 NAP 12/01/08 4,285.76 120
279 010-00000259 AMCC Woodstone 279 010-0000259 NAP 08/01/13 5,145.57 180
Properties
280 010-00000553 AMCC East Gate Manor 280 010-0000553 NAP 01/01/10 3,992.50 120
Apartments
</TABLE>
<TABLE>
<CAPTION>
STATED REMAINING STATED
ORIGINAL TERM REMAINING
AMORT- TO AMORT-
IZATION SEASON- MATURITY IZATION CUT-OFF LOAN BALANCE
CONTROL LOAN ORIGI- LOAN / TERM ING / ARD TERM DATE AT MATURITY /
NUMBER NUMBER NATOR PROPERTY NAME (MONTHS) (MONTHS) (MONTHS) (MONTHS) BALANCE ARD
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne Center 300 28 92 272 1,257,845.64 1,052,942.26
249 010-00000318 AMCC South Fridley 240 26 214 214 1,256,148.95 0.00
Apartments
253 010-00000298 AMCC Howard Johnson 232 15 217 217 1,148,369.52 0.00
Lake Havasu
255 010-00000480 AMCC 261 East 300 300 17 103 283 1,128,824.58 934,529.42
South
256 010-00000316 AMCC Hyde Park 240 24 216 216 1,123,751.04 0.00
Apartments
257 010-00000636 AMCC Hawthorne 360 1 119 359 1,119,278.48 1,005,961.71
Business Park
260 010-00000505 AMCC Lovell Building 360 16 104 344 1,040,104.09 939,328.74
261 010-00000441 AMCC Nationwide 240 21 99 219 1,036,270.65 756,091.01
Insurance Office
Building
262 010-00000380 AMCC Attache Building 300 25 95 275 1,029,447.80 858,360.20
264 010-00000555 AMCC Bluebonnet 300 11 109 289 975,505.19 825,729.94
Apartments
265 010-00000534 AMCC 8th Street 360 15 105 345 973,007.92 884,661.16
Apartments
267 020-00000029 AMCC Ralph's Grocery 300 29 115 271 880,257.05 688,075.01
& Deli
268 020-00000055 AMCC Market Square 300 21 99 279 831,794.32 699,023.22
269 010-00000334 AMCC Blockbuster 300 27 93 273 823,855.65 690,407.74
Video-Salt Lake
City
270 010-00000366 AMCC Prudential 300 26 94 274 761,499.87 635,789.65
Wise-McIntire
Office Building
271 020-00000023 AMCC Licton Springs 300 29 91 271 725,049.40 608,496.61
Court Apartments
272 010-00000212 AMCC Surgicenter of 240 28 92 212 673,400.49 493,894.85
South Bay
273 010-00000338 AMCC West Fargo 240 26 94 214 665,632.63 482,602.19
Living Center
274 010-00000457 AMCC Edgewood 240 18 222 222 652,904.01 0.00
Apartments
275 010-00000321 AMCC Washington/Shepherd 180 25 155 155 641,873.72 0.00
Retail Center
276 010-00000020 AMCC Candlewood 300 44 76 256 602,311.53 525,385.10
Apartments
277 010-00000431 AMCC Bishop Lifting 120 20 100 100 574,975.87 0.00
Products
278 010-00000382 AMCC 188 State Street 240 24 96 216 508,483.10 368,725.08
279 010-00000259 AMCC Woodstone 180 28 152 152 499,921.46 0.00
Properties
280 010-00000553 AMCC East Gate Manor 300 11 109 289 494,988.34 416,838.44
Apartments
</TABLE>
<TABLE>
<CAPTION>
YIELD
MAINTEN- YIELD PREPAY-
ANCE MAINTEN- MENT
DEFEASE PERIOD ANCE PENALTY
CONTROL LOAN ORIGI- LOAN / START DEFEASE START PERIOD START
NUMBER NUMBER NATOR PROPERTY NAME DATE END DATE DATE END DATE DATE
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne Center NAP NAP 08/01/00 01/31/08 NAP
249 010-00000318 AMCC South Fridley NAP NAP 10/01/03 06/30/18 NAP
Apartments
253 010-00000298 AMCC Howard Johnson 02/01/04 12/31/13 NAP NAP NAP
Lake Havasu
255 010-00000480 AMCC 261 East 300 NAP NAP 07/01/04 03/31/09 NAP
South
256 010-00000316 AMCC Hyde Park NAP NAP 12/01/03 08/31/18 NAP
Apartments
257 010-00000636 AMCC Hawthorne 12/01/05 07/31/10 NAP NAP NAP
Business Park
260 010-00000505 AMCC Lovell Building NAP NAP 08/01/04 04/30/09 NAP
261 010-00000441 AMCC Nationwide NAP NAP 03/01/04 11/30/08 NAP
Insurance Office
Building
262 010-00000380 AMCC Attache Building NAP NAP 11/01/03 07/31/08 NAP
264 010-00000555 AMCC Bluebonnet NAP NAP 01/01/05 09/30/09 NAP
Apartments
265 010-00000534 AMCC 8th Street 10/01/02 05/31/09 NAP NAP NAP
Apartments
267 020-00000029 AMCC Ralph's Grocery NAP NAP 07/01/03 12/31/09 NAP
& Deli
268 020-00000055 AMCC Market Square NAP NAP 04/01/04 11/30/08 NAP
269 010-00000334 AMCC Blockbuster NAP NAP 09/01/03 05/31/08 NAP
Video-Salt Lake
City
270 010-00000366 AMCC Prudential NAP NAP 11/01/03 06/30/08 NAP
Wise-McIntire
Office Building
271 020-00000023 AMCC Licton Springs NAP NAP 07/01/03 03/31/08 NAP
Court Apartments
272 010-00000212 AMCC Surgicenter of NAP NAP 08/01/03 02/29/08 NAP
South Bay
273 010-00000338 AMCC West Fargo NAP NAP 10/01/03 03/31/08 NAP
Living Center
274 010-00000457 AMCC Edgewood NAP NAP 06/01/04 02/28/19 NAP
Apartments
275 010-00000321 AMCC Washington/Shepherd NAP NAP 11/01/03 07/31/13 NAP
Retail Center
276 010-00000020 AMCC Candlewood NAP NAP 04/01/02 03/31/07 NAP
Apartments
277 010-00000431 AMCC Bishop Lifting NAP NAP 04/01/04 12/31/08 NAP
Products
278 010-00000382 AMCC 188 State Street NAP NAP 12/01/03 08/31/08 NAP
279 010-00000259 AMCC Woodstone NAP NAP 08/01/01 01/31/13 NAP
Properties
280 010-00000553 AMCC East Gate Manor 02/01/03 09/30/09 NAP NAP NAP
Apartments
</TABLE>
<TABLE>
<CAPTION>
YIELD
PREPAY- MAINT- YIELD
MENT ENANCE MAINTEN-
PENALTY CALCUL- ANCE MASTER
CONTROL LOAN ORIGI- LOAN / END ATION INTEREST SERVICING
NUMBER NUMBER NATOR PROPERTY NAME DATE METHOD RATE FEE RATE
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne Center NAP Present Value Treasury 0.0200%
Flat-WAL
249 010-00000318 AMCC South Fridley NAP Present Value Treasury 0.0200%
Apartments Flat-WAL
253 010-00000298 AMCC Howard Johnson NAP NAP NAP 0.0200%
Lake Havasu
255 010-00000480 AMCC 261 East 300 NAP Present Value Treasury 0.0200%
South Flat-WAL
256 010-00000316 AMCC Hyde Park NAP Present Value Treasury 0.0200%
Apartments Flat-WAL
257 010-00000636 AMCC Hawthorne NAP NAP NAP 0.0200%
Business Park
260 010-00000505 AMCC Lovell Building NAP Present Value Treasury 0.0200%
Flat-WAL
261 010-00000441 AMCC Nationwide NAP Present Value Treasury 0.0200%
Insurance Office Flat-WAL
Building
262 010-00000380 AMCC Attache Building NAP Present Value Treasury 0.0200%
Flat-WAL
264 010-00000555 AMCC Bluebonnet NAP Present Value Treasury 0.0200%
Apartments Flat-WAL
265 010-00000534 AMCC 8th Street NAP NAP NAP 0.0200%
Apartments
267 020-00000029 AMCC Ralph's Grocery NAP Present Value Treasury 0.0200%
& Deli Flat-WAL
268 020-00000055 AMCC Market Square NAP Present Value Treasury 0.0200%
Flat-WAL
269 010-00000334 AMCC Blockbuster NAP Present Value Treasury 0.0200%
Video-Salt Lake Flat-WAL
City
270 010-00000366 AMCC Prudential NAP Present Value Treasury 0.0200%
Wise-McIntire Flat-WAL
Office Building
271 020-00000023 AMCC Licton Springs NAP Present Value Treasury 0.0200%
Court Apartments Flat-WAL
272 010-00000212 AMCC Surgicenter of NAP Present Value Treasury 0.0200%
South Bay Flat-WAL
273 010-00000338 AMCC West Fargo NAP Present Value Treasury 0.0200%
Living Center Flat-WAL
274 010-00000457 AMCC Edgewood NAP Present Value Treasury 0.0200%
Apartments Flat-WAL
275 010-00000321 AMCC Washington/Shepherd NAP Present Value Treasury 0.0200%
Retail Center Flat-WAL
276 010-00000020 AMCC Candlewood NAP Present Value Treasury+0.50% 0.0200%
Apartments
277 010-00000431 AMCC Bishop Lifting NAP Present Value Treasury 0.0200%
Products Flat-WAL
278 010-00000382 AMCC 188 State Street NAP Present Value Treasury 0.0200%
Flat-WAL
279 010-00000259 AMCC Woodstone NAP Present Value Treasury 0.0200%
Properties Flat-WAL
280 010-00000553 AMCC East Gate Manor NAP NAP NAP 0.0200%
Apartments
</TABLE>
2
<PAGE> 296
EXHIBIT B-1D
SCHEDULE OF LASALLE MORTGAGE LOANS
[See Attached Schedule]
B-1D-1
<PAGE> 297
<TABLE>
<CAPTION>
CROSS
COLLATER-
ALIZED
LOAN / PROPERTY (MORTGAGE
CONTROL LOAN ORIGI- PROPERTY PROPERTY ZIP PROPERTY SIZE UNIT LOAN
NUMBER NUMBER NATOR NAME ADDRESS CITY STATE CODE SIZE TYPE GROUP)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical Mutual 2060 East 9th Cleveland OH 44115 381,176 SF No
of Ohio Street
103 34 LBNA Jorie Plaza 800-810 Jorie Oak Brook IL 60523 191,666 SF No
Boulevard
107 8 LBNA 101 West Grand 101 West Grand Chicago IL 60610 72,865 SF Yes (L1)
108 14 LBNA 57 W. Grand 57 W. Grand Chicago IL 60610 83,469 SF Yes (L1)
109 28 LBNA 40 West Hubbard 40 West Hubbard Chicago IL 60610 12,672 SF Yes (L1)
Street
110 3 LBNA South Loop 1245 South Clinton Chicago IL 60607 102,265 SF No
Market Place
114 4 LBNA Seattle-Mead 811, 835, 855, S. SeaTac WA 98148 235,031 SF No
Industrial 192nd Street
Facilities
115 5 LBNA Hamilton Court 1030 Charlela Lane Elk Grove IL 60007 579 Units No
Apartments Village
121 7 LBNA 29200 29200 NW Highway Southfield MI 48034 111,542 SF No
Northwestern
Highway
124 15 LBNA GE / 2420 E. Pikes Peak Colorado CO 80909 161,986 SF Yes (L2)
Montgomery Avenue Springs
Wards
- Col. Springs
125 24 LBNA GE / 2222 Spencer Pasadena TX 77504 193,006 SF Yes (L2)
Montgomery Highway
Wards
- Pasadena Tx
127 9 LBNA Traders Tower 308-326 South Chicago IL 60606 250,500 SF No
- Self Park Wells Street
128 10 LBNA Mabek CO L.P. 500 North Field Lake Forest IL 60045 93,000 SF No
Drive
140 16 LBNA Horizon Health 19900 Haggerty Road Livonia MI 48152 46,267 SF No
Center
146 17 LBNA Carriage House 1545 S. State Chicago IL 60605 81 Units No
Lofts
171 18 LBNA Chandler's 630 Davis Street Evanston IL 60201 26,342 SF No
Building
175 19 LBNA Springdale Mall 1600 Boston Road Springfield MA 01129 103,763 SF No
176 20 LBNA Frontier 1225 Jefferson Road Rochester NY 14623 64,846 SF No
Commons/Global
Crossing
179 22 LBNA Watermark 1600 Watermark Columbus OH 43215 43,929 SF No
Office Building
183 23 LBNA Palm Haven 3301 58th Avenue St. FL 33714 270 Pads No
Mobile Home North Petersburg
Park
186 25 LBNA Imperial Crown 5925 Imperial Mulberry FL 33860 66,568 SF No
Center Parkway
199 27 LBNA Fountain Place 920 South Lansing MI 48910 108 Units No
Apartments Washington Avenue
209 29 LBNA Almond Grand 7501 Grand Avenue Gurnee IL 60031 13,905 SF No
Gurnee
225 30 LBNA Birchbrook 3000 E. Birch Brea CA 92621 24,635 SF No
Office Park Street
233 31 LBNA Kendall Manor 125 S. Kendall Kalamazoo MI 49006 81 Units No
Apartments Avenue
254 32 LBNA Wickiup Mobile 2015 East Highway Apache AZ 85219 111 Pads No
Home & RV Park 60 Junction
266 33 LBNA E. M. 145 Metro Park Rochester NY 14623 31,035 SF No
Jorgensen
Building
</TABLE>
<TABLE>
<CAPTION>
CROSS
COLLATER-
ALIZED
MORTGAGE
LOAN
GROUP
LOAN / AGGREGATE MORT- INTEREST
CONTROL LOAN ORIGI- PROPERTY CUT-OFF OWNERSHIP ORIGINAL GAGE RATE ACCRUAL LOAN NOTE
NUMBER NUMBER NATOR NAME DATE BALANCE INTEREST BALANCE RATE TYPE METHOD TYPE DATE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical Mutual 35,364,183 Fee Simple 35,400,000 8.3800% Fixed Actual/360 Balloon 09/29/00
of Ohio
103 34 LBNA Jorie Plaza 22,800,000 Fee Simple 22,800,000 8.3300% Fixed Actual/360 Balloon 11/22/00
107 8 LBNA 101 West Grand 18,500,000 Fee Simple 10,000,000 7.5900% Fixed Actual/360 Balloon 11/15/00
108 14 LBNA 57 W. Grand 18,500,000 Fee Simple 6,000,000 7.5500% Fixed Actual/360 Balloon 11/15/00
109 28 LBNA 40 West Hubbard 18,500,000 Fee Simple 2,500,000 7.3800% Fixed Actual/360 Balloon 11/15/00
110 3 LBNA South Loop 18,235,848 Fee Simple 18,250,000 7.2800% Fixed Actual/360 Balloon 10/19/00
Market Place
114 4 LBNA Seattle-Mead 16,000,000 Fee Simple 16,000,000 8.1200% Fixed Actual/360 Balloon 11/13/00
Industrial
Facilities
115 5 LBNA Hamilton Court 15,988,455 Fee Simple 16,000,000 7.6400% Fixed Actual/360 Balloon 10/31/00
Apartments
121 7 LBNA 29200 10,268,535 Part Fee 10,275,000 8.3150% Fixed Actual/360 Balloon 10/24/00
Northwestern Simple &
Highway Part
Leasehold
124 15 LBNA GE / 9,148,751 Fee Simple 6,000,000 7.6600% Fixed Actual/360 Full Amort 10/13/00
Montgomery
Wards
- Col. Springs
125 24 LBNA GE / 9,148,751 Fee Simple 3,200,000 7.6600% Fixed Actual/360 Full Amort 10/13/00
Montgomery
Wards
- Pasadena Tx
127 9 LBNA Traders Tower 8,343,003 Fee Simple 8,600,000 9.0000% Fixed 30/360 Balloon 03/14/97
- Self Park
128 10 LBNA Mabek CO L.P. 8,145,364 Fee Simple 11,250,000 8.8000% Fixed Actual/360 Full Amort 04/21/94
140 16 LBNA Horizon Health 5,836,518 Fee Simple 5,850,000 8.5650% Fixed Actual/360 Balloon 06/29/00
Center
146 17 LBNA Carriage House 5,500,000 Fee Simple 5,500,000 8.1300% Fixed Actual/360 Balloon 11/16/00
Lofts
171 18 LBNA Chandler's 3,887,454 Fee Simple 3,900,000 8.6500% Fixed Actual/360 Balloon 04/27/00
Building
175 19 LBNA Springdale Mall 3,646,086 Fee Simple 3,650,000 8.1700% Fixed Actual/360 Balloon 09/06/00
176 20 LBNA Frontier 3,641,184 Fee Simple 3,650,000 8.4100% Fixed Actual/360 Balloon 06/28/00
Commons/Global
Crossing
179 22 LBNA Watermark 3,446,549 Fee Simple 3,450,000 8.4210% Fixed Actual/360 Balloon 09/19/00
Office Building
183 23 LBNA Palm Haven 3,192,704 Fee Simple 3,200,000 8.6000% Fixed Actual/360 Balloon 06/08/00
Mobile Home
Park
186 25 LBNA Imperial Crown 3,100,000 Fee Simple 3,100,000 8.2730% Fixed Actual/360 Balloon 11/16/00
Center
199 27 LBNA Fountain Place 2,525,986 Fee Simple 2,550,000 7.7900% Fixed Actual/360 Balloon 09/01/99
Apartments
209 29 LBNA Almond Grand 2,386,336 Fee Simple 2,390,000 8.6500% Fixed Actual/360 Balloon 08/03/00
Gurnee
225 30 LBNA Birchbrook 1,795,756 Fee Simple 1,800,000 8.4900% Fixed Actual/360 Balloon 06/30/00
Office Park
233 31 LBNA Kendall Manor 1,496,527 Fee Simple 1,500,000 8.5500% Fixed Actual/360 Balloon 06/29/00
Apartments
254 32 LBNA Wickiup Mobile 1,133,071 Fee Simple 1,135,000 8.2400% Fixed Actual/360 Balloon 08/14/00
Home & RV Park
266 33 LBNA E. M. 902,239 Fee Simple 904,250 8.6800% Fixed Actual/360 Balloon 06/09/00
Jorgensen
Building
</TABLE>
<TABLE>
<CAPTION>
STATED
ANTICI- ORIGINAL ORIGINAL
PATED SCHED- MONTHLY TERM TO AMORT-
LOAN / REPAY- ULED DEBT MATURITY IZATION SEASON-
CONTROL LOAN ORIGI- PROPERTY CONTROL LOAN MENT MATURITY SERVICE / ARD TERM ING
NUMBER NUMBER NATOR NAME NUMBER NUMBER DATE DATE PAYMENT (MONTHS) (MONTHS) (MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical Mutual 102 1 NAP 10/01/10 269,190.52 120 360 2
of Ohio
103 34 LBNA Jorie Plaza 103 34 NAP 12/01/10 172,572.76 120 360 0
107 8 LBNA 101 West Grand 107 8 NAP 12/01/10 70,538.76 120 360 0
108 14 LBNA 57 W. Grand 108 14 NAP 12/01/10 42,158.49 120 360 0
109 28 LBNA 40 West Hubbard 109 28 NAP 12/01/10 17,275.40 120 360 0
110 3 LBNA South Loop 110 3 NAP 11/01/10 124,868.74 120 360 1
Market Place
114 4 LBNA Seattle-Mead 114 4 NAP 12/01/10 118,743.55 120 360 0
Industrial
Facilities
115 5 LBNA Hamilton Court 115 5 NAP 11/01/10 113,412.14 120 360 1
Apartments
121 7 LBNA 29200 121 7 NAP 11/01/10 77,662.67 120 360 1
Northwestern
Highway
124 15 LBNA GE / 124 15 NAP 11/01/10 71,723.10 120 120 1
Montgomery
Wards
- Col. Springs
125 24 LBNA GE / 125 24 NAP 11/01/10 38,252.32 120 120 1
Montgomery
Wards
- Pasadena Tx
127 9 LBNA Traders Tower 127 9 NAP 03/31/07 72,170.89 (c) 120 300 44
- Self Park
128 10 LBNA Mabek CO L.P. 128 10 NAP 05/01/09 112,770.40 180 180 79
140 16 LBNA Horizon Health 140 16 NAP 07/01/10 45,251.20 120 360 5
Center
146 17 LBNA Carriage House 146 17 NAP 12/01/10 40,856.60 120 360 0
Lofts
171 18 LBNA Chandler's 171 18 NAP 05/01/10 30,403.20 120 360 7
Building
175 19 LBNA Springdale Mall 175 19 NAP 10/01/10 27,216.22 120 360 2
176 20 LBNA Frontier 176 20 NAP 07/01/10 27,832.86 120 360 5
Commons/Global
Crossing
179 22 LBNA Watermark 179 22 NAP 10/01/12 26,334.60 144 360 2
Office Building
183 23 LBNA Palm Haven 183 23 NAP 07/01/10 24,832.37 120 360 5
Mobile Home
Park
186 25 LBNA Imperial Crown 186 25 NAP 12/01/10 23,339.41 120 360 0
Center
199 27 LBNA Fountain Place 199 27 NAP 09/01/09 18,339.05 120 360 15
Apartments
209 29 LBNA Almond Grand 209 29 NAP 07/01/06 18,631.70 70 360 3
Gurnee
225 30 LBNA Birchbrook 225 30 NAP 07/01/10 13,827.69 120 360 5
Office Park
233 31 LBNA Kendall Manor 233 31 NAP 07/01/10 11,586.90 120 360 5
Apartments
254 32 LBNA Wickiup Mobile 254 32 NAP 09/01/10 8,518.90 120 360 3
Home & RV Park
266 33 LBNA E. M. 266 33 NAP 07/01/10 7,068.58 120 360 5
Jorgensen
Building
</TABLE>
<TABLE>
<CAPTION>
REMAIN- STATED YIELD
ING TERM REMAINING LOAN MAINTEN-
TO AMORT- BALANCE ANCE
LOAN / MATURITY IZATION CUT-OFF AT DEFEASE PERIOD
CONTROL LOAN ORIGI- PROPERTY / ARD TERM DATE MATURITY START DEFEASE START
NUMBER NUMBER NATOR NAME (MONTHS) (MONTHS) BALANCE / ARD DATE END DATE DATE
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical Mutual 118 358 35,364,183.34 31,934,404.04 10/01/03 06/30/10 NAP
of Ohio
103 34 LBNA Jorie Plaza 120 360 22,800,000.00 20,543,305.72 12/01/03 09/30/10 NAP
107 8 LBNA 101 West Grand 120 360 10,000,000.00 8,852,255.85 12/01/03 09/30/10 NAP
108 14 LBNA 57 W. Grand 120 360 6,000,000.00 5,306,065.10 12/01/03 09/30/10 NAP
109 28 LBNA 40 West Hubbard 120 360 2,500,000.00 2,201,415.82 12/01/03 09/30/10 NAP
110 3 LBNA South Loop 119 359 18,235,847.93 16,027,421.10 11/01/03 08/31/10 NAP
Market Place
114 4 LBNA Seattle-Mead 120 360 16,000,000.00 14,346,179.33 12/01/03 09/30/10 NAP
Industrial
Facilities
115 5 LBNA Hamilton Court 119 359 15,988,454.53 14,179,312.03 11/01/03 08/31/10 NAP
Apartments
121 7 LBNA 29200 119 359 10,268,534.52 9,253,368.97 11/01/03 08/31/10 NAP
Northwestern
Highway
124 15 LBNA GE / 119 119 5,966,576.90 60,952.39 11/01/03 08/31/10 NAP
Montgomery
Wards
- Col. Springs
125 24 LBNA GE / 119 119 3,182,174.35 32,507.94 11/01/03 08/31/10 NAP
Montgomery
Wards
- Pasadena Tx
127 9 LBNA Traders Tower 76 270 8,343,002.93 7,364,596.26 NAP NAP 05/01/97
- Self Park
128 10 LBNA Mabek CO L.P. 101 101 8,145,363.67 330,965.50 NAP NAP 06/05/94
140 16 LBNA Horizon Health 115 355 5,836,517.68 5,300,891.15 07/01/03 04/30/10 NAP
Center
146 17 LBNA Carriage House 120 360 5,500,000.00 4,932,657.34 12/01/03 09/30/10 NAP
Lofts
171 18 LBNA Chandler's 113 353 3,887,453.97 3,540,839.88 05/01/03 01/31/10 NAP
Building
175 19 LBNA Springdale Mall 118 358 3,646,086.27 3,276,719.65 10/01/03 07/31/10 NAP
176 20 LBNA Frontier 115 355 3,641,183.51 3,295,787.06 07/01/03 04/30/10 NAP
Commons/Global
Crossing
179 22 LBNA Watermark 142 358 3,446,549.32 3,007,185.62 10/01/03 07/31/12 NAP
Office Building
183 23 LBNA Palm Haven 115 355 3,192,703.97 2,901,913.77 07/01/03 04/30/10 NAP
Mobile Home
Park
186 25 LBNA Imperial Crown 120 360 3,100,000.00 2,789,501.14 12/01/03 09/30/10 NAP
Center
199 27 LBNA Fountain Place 105 345 2,525,985.85 2,269,274.88 01/01/03 06/30/09 NAP
Apartments
209 29 LBNA Almond Grand 67 357 2,386,336.28 2,283,929.47 NAP NAP 10/01/00
Gurnee
225 30 LBNA Birchbrook 115 355 1,795,755.67 1,628,282.25 07/01/03 04/30/10 NAP
Office Park
233 31 LBNA Kendall Manor 115 355 1,496,527.07 1,358,743.29 07/01/03 04/30/10 NAP
Apartments
254 32 LBNA Wickiup Mobile 117 357 1,133,070.73 1,020,431.36 09/01/04 08/31/10 NAP
Home & RV Park
266 33 LBNA E. M. 115 355 902,238.79 821,482.71 07/01/03 04/30/10 NAP
Jorgensen
Building
</TABLE>
<TABLE>
<CAPTION>
YIELD PREPAY- PREPAY-
MAINTEN- MENT MENT YIELD YIELD
LOAN / ANCE PENALTY PENALTY MAINTENANCE MAINTENANCE MASTER
CONTROL LOAN ORIGI- PROPERTY PERIOD START END CALCULATION INTEREST SERVICING
NUMBER NUMBER NATOR NAME END DATE DATE DATE METHOD RATE FEE RATE
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical Mutual NAP NAP NAP NAP NAP 0.0200%
of Ohio
103 34 LBNA Jorie Plaza NAP NAP NAP NAP NAP 0.0200%
107 8 LBNA 101 West Grand NAP NAP NAP NAP NAP 0.0200%
108 14 LBNA 57 W. Grand NAP NAP NAP NAP NAP 0.0200%
109 28 LBNA 40 West Hubbard NAP NAP NAP NAP NAP 0.0200%
110 3 LBNA South Loop NAP NAP NAP NAP NAP 0.0200%
Market Place
114 4 LBNA Seattle-Mead NAP NAP NAP NAP NAP 0.0200%
Industrial
Facilities
115 5 LBNA Hamilton Court NAP NAP NAP NAP NAP 0.0200%
Apartments
121 7 LBNA 29200 NAP NAP NAP NAP NAP 0.0200%
Northwestern
Highway
124 15 LBNA GE / NAP NAP NAP NAP NAP 0.0200%
Montgomery
Wards
- Col. Springs
125 24 LBNA GE / NAP NAP NAP NAP NAP 0.0200%
Montgomery
Wards
- Pasadena Tx
127 9 LBNA Traders Tower 09/30/06 NAP NAP Present Value Treasury 0.0200%
- Self Park Flat-Maturity
128 10 LBNA Mabek CO L.P. 07/31/08 NAP NAP Present Value Treasury 0.0200%
Flat-Maturity
140 16 LBNA Horizon Health NAP NAP NAP NAP NAP 0.0200%
Center
146 17 LBNA Carriage House NAP NAP NAP NAP NAP 0.0200%
Lofts
171 18 LBNA Chandler's NAP NAP NAP NAP NAP 0.0200%
Building
175 19 LBNA Springdale Mall NAP NAP NAP NAP NAP 0.0200%
176 20 LBNA Frontier NAP NAP NAP NAP NAP 0.0200%
Commons/Global
Crossing
179 22 LBNA Watermark NAP NAP NAP NAP NAP 0.0200%
Office Building
183 23 LBNA Palm Haven NAP NAP NAP NAP NAP 0.0200%
Mobile Home
Park
186 25 LBNA Imperial Crown NAP NAP NAP NAP NAP 0.0200%
Center
199 27 LBNA Fountain Place NAP NAP NAP NAP NAP 0.0200%
Apartments
209 29 LBNA Almond Grand 04/30/06 NAP NAP Present Value Treasury 0.0200%
Gurnee Flat-Maturity
225 30 LBNA Birchbrook NAP NAP NAP NAP NAP 0.0200%
Office Park
233 31 LBNA Kendall Manor NAP NAP NAP NAP NAP 0.0200%
Apartments
254 32 LBNA Wickiup Mobile NAP NAP NAP NAP NAP 0.0200%
Home & RV Park
266 33 LBNA E. M. NAP NAP NAP NAP NAP 0.0200%
Jorgensen
Building
</TABLE>
B-1D-1
<PAGE> 298
EXHIBIT B-1E
SCHEDULE OF MORTGAGE LOANS HELD BY LOAN REMICS
[See Attached Schedule]
B-1E-1
<PAGE> 299
<TABLE>
<CAPTION>
CONTROL NUMBER LOAN NUMBER LOAN / PROPERTY NAME CUT-OFF DATE BALANCE
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
246 010-00000533 Checkmate Apartments 1,345,548.08
265 010-00000534 8th Street Apartments 973,007.92
</TABLE>
B-1E-1
<PAGE> 300
EXHIBIT B-1F
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
EXHIBIT B-1F-1
<PAGE> 301
<TABLE>
<CAPTION>
CONTROL NUMBER LOAN NUMBER LOAN / PROPERTY NAME CUT-OFF DATE BALANCE
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
130 11358 Boynton Plaza 7,679,220.02
189 03-0810210 Sav-on and Carl's Jr. 2,994,591.49
</TABLE>
EXHIBIT B-1F-1
<PAGE> 302
EXHIBIT B-1G
SCHEDULE OF MORTGAGE LOANS WITH CUT-OFF DATE PRINCIPAL
BALANCES OF $15,000,000 OR MORE THAT DO NOT PROVIDE FOR RATING
AGENCY CONFIRMATION REGARDING WAIVER OF DUE-ON-SALE CLAUSES
LOAN/PROPERTY NAME CUT-OFF DATE BALANCE
[NONE]
B-1G-1
<PAGE> 303
EXHIBIT B-1H
SCHEDULE OF MORTGAGE LOANS AS TO WHICH 50%
OF ASSUMPTION FEES ARE PAYABLE TO SUB-SERVICERS
B-1H-1
<PAGE> 304
<TABLE>
<CAPTION>
CONTROL NUMBER LOAN NUMBER LOAN / PROPERTY NAME CUT-OFF DATE BALANCE
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
106 6603559 149 New Montgomery Street 18,809,602.27
112 11483 Pacific Plaza 16,426,642.13
113 6603432 Seatac Village Shopping Center 16,087,967.31
118 6604594 85 Devonshire Street/258-262 Washington Street 13,650,000.00
129 11312 Burlington Self Storage 7,984,459.40
130 11358 Boynton Plaza 7,679,220.02
132 10511 Garden Ridge 7,095,636.48
133 2010092 300 West Pratt Street 7,018,345.03
134 2010093 The GTE Building 6,877,665.29
135 2010096 Hamlin Court 6,810,392.89
145 6603550 Arlington Heights Apartments 5,541,084.10
150 9911010085 Calaveras Landing Shopping Center 5,173,541.50
151 1010091 Healtheon 5,145,165.22
158 6603687 Tivoli Gardens Apartments 4,369,641.03
165 11432 Greenhill Corporate Center 4,089,787.90
169 6603484 The Cascades 3,963,919.71
181 9910010082 Lafayette Business Park 3,383,354.91
182 11573 Arrow Business Center 3,246,693.32
192 10896 Weatherbridge Center Buildings II and III 2,842,834.15
194 9904010054 1201 Sharp Street 2,758,739.76
207 6605277 Broadway Plaza Building 2,394,273.84
229 6605203 Mini-City Self Storage 1,664,338.67
</TABLE>
B-1H-1
<PAGE> 305
EXHIBIT B-1I
SCHEDULE OF PRIMARY SERVICED MORTGAGE LOANS
<PAGE> 306
<TABLE>
<CAPTION>
RETAINED SUB-
CONTROL NUMBER LOAN NUMBER LOAN / PROPERTY NAME CUT-OFF DATE BALANCE SERVICING FEE RATE
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
104 03-0812051 Westland Meadows 22,714,214.38 0.0500%
106 6603559 149 New Montgomery Street 18,809,602.27 0.0400%
112 11483 Pacific Plaza 16,426,642.13 0.0700%
113 6603432 Seatac Village Shopping Center 16,087,967.31 0.0750%
118 6604594 85 Devonshire Street/258-262 Washington Street 13,650,000.00 0.0700%
-----------------------------------------------------------------------------------------------------------------------------------
122 03-0810402 Simchik Four Property Portfolio 9,975,377.47 0.0600%
122a 03-0810402a 100 Market Street
122b 03-0810402b 9 Executive Park Drive
122c 03-0810402c 1255 South Willow Street
122d 03-0810402d 135 Daniel Webster Highway
-----------------------------------------------------------------------------------------------------------------------------------
129 11312 Burlington Self Storage 7,984,459.40 0.0700%
130 11358 Boynton Plaza 7,679,220.02 0.0700%
132 10511 Garden Ridge 7,095,636.48 0.0700%
133 2010092 300 West Pratt Street 7,018,345.03 0.0700%
134 2010093 The GTE Building 6,877,665.29 0.0700%
135 2010096 Hamlin Court 6,810,392.89 0.0700%
140 16 Horizon Health Center 5,836,517.68 0.0400%
145 6603550 Arlington Heights Apartments 5,541,084.10 0.0900%
149 6604949 Villa de Mission East 5,178,495.88 0.0750%
150 9911010085 Calaveras Landing Shopping Center 5,173,541.50 0.0700%
151 1010091 Healtheon 5,145,165.22 0.0700%
156 6605190 Town Green at Wilton Center 4,907,937.15 0.1250%
158 6603687 Tivoli Gardens Apartments 4,369,641.03 0.0800%
163 6604565 Franklinton Square Shopping Center 4,183,599.97 0.1000%
165 11432 Greenhill Corporate Center 4,089,787.90 0.0700%
169 6603484 The Cascades 3,963,919.71 0.0900%
181 9910010082 Lafayette Business Park 3,383,354.91 0.0700%
182 11573 Arrow Business Center 3,246,693.32 0.0700%
183 23 Palm Haven Mobile Home Park 3,192,703.97 0.0600%
187 HHCC0064 Fran Murphy Building 3,044,546.48 0.0600%
192 10896 Weatherbridge Center Buildings II and III 2,842,834.15 0.0700%
194 9904010054 1201 Sharp Street 2,758,739.76 0.0700%
199 27 Fountain Place Apartments 2,525,985.85 0.0600%
207 6605277 Broadway Plaza Building 2,394,273.84 0.0900%
211 HHCC0063 Peppertree Apartments 2,363,873.79 0.0600%
229 6605203 Mini-City Self Storage 1,664,338.67 0.0900%
233 31 Kendall Manor Apartments 1,496,527.07 0.0600%
254 32 Wickiup Mobile Home & RV Park 1,133,070.73 0.0600%
</TABLE>
<TABLE>
<CAPTION>
CONTROL NUMBER LOAN NUMBER LOAN / PROPERTY NAME SUB-SERVICER
--------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
104 03-0812051 Westland Meadows Bernard Financial
106 6603559 149 New Montgomery Street LJ Melody & Company, Inc.
112 11483 Pacific Plaza Continental Wingate
113 6603432 Seatac Village Shopping Center LJ Melody & Company, Inc.
118 6604594 85 Devonshire Street/258-262 Washington Street LJ Melody & Company, Inc.
--------------------------------------------------------------------------------------------------------------------------
122 03-0810402 Simchik Four Property Portfolio Meredith & Grew
122a 03-0810402a 100 Market Street
122b 03-0810402b 9 Executive Park Drive
122c 03-0810402c 1255 South Willow Street
122d 03-0810402d 135 Daniel Webster Highway
--------------------------------------------------------------------------------------------------------------------------
129 11312 Burlington Self Storage Continental Wingate
130 11358 Boynton Plaza Continental Wingate
132 10511 Garden Ridge Continental Wingate
133 2010092 300 West Pratt Street Continental Wingate
134 2010093 The GTE Building Continental Wingate
135 2010096 Hamlin Court Continental Wingate
140 16 Horizon Health Center Bernard Financial
145 6603550 Arlington Heights Apartments LJ Melody & Company, Inc.
149 6604949 Villa de Mission East Holliday Fenoglio Fowler, L.P.
150 9911010085 Calaveras Landing Shopping Center Continental Wingate
151 1010091 Healtheon Continental Wingate
156 6605190 Town Green at Wilton Center Holliday Fenoglio Fowler, L.P.
158 6603687 Tivoli Gardens Apartments Financial Federal Savings Bank
163 6604565 Franklinton Square Shopping Center GMAC Commercial Mortgage Corp.
165 11432 Greenhill Corporate Center Continental Wingate
169 6603484 The Cascades LJ Melody & Company, Inc.
181 9910010082 Lafayette Business Park Continental Wingate
182 11573 Arrow Business Center Continental Wingate
183 23 Palm Haven Mobile Home Park Bloomfield Servicing
187 HHCC0064 Fran Murphy Building Huntoon Hastings Capital Corp.
192 10896 Weatherbridge Center Buildings II and III Continental Wingate
194 9904010054 1201 Sharp Street Continental Wingate
199 27 Fountain Place Apartments Bloomfield Servicing
207 6605277 Broadway Plaza Building LJ Melody & Company, Inc.
211 HHCC0063 Peppertree Apartments Huntoon Hastings Capital Corp.
229 6605203 Mini-City Self Storage LJ Melody & Company, Inc.
233 31 Kendall Manor Apartments Bloomfield Servicing
254 32 Wickiup Mobile Home & RV Park Bloomfield Servicing
</TABLE>
B-1I-1
<PAGE> 307
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
<PAGE> 308
<TABLE>
<CAPTION>
PROSPECTUS ID SELLER PROPERTY NAME DOCUMENT EX CODE EXCEPTION COMMENTS
------------- ------ ------------- -------- ------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
122 GCM SIMCHIK FOUR PR NOTE 14 Loan Amount Does Not NOTE: 10,495,000
Agree With Schedule SCH: 9,985,567.88
</TABLE>
B-2-1
<PAGE> 309
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[date]
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street
New York, New York 10013
Greenwich Capital Financial Products, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
LaSalle Bank National Association
135 South LaSalle Street, Suite 1260
Chicago, Illinois 60603
Midland Loan Services, Inc.
210 West 10th Street, 6th Floor
Kansas City, Missouri 64105
Deutsche Bank Securities, Inc.
31 West 52nd Street, 3rd Floor
New York, New York 10019
Salomon Brothers Realty Corp.
388 Greenwich Street
New York, New York 10013
Artesia Mortgage Capital Corporation
1180 Northwest Maple Street, Suite 202
Issaquah, Washington 98027
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, Maryland 21044
Lennar Partners, Inc.
760 NW 107th Avenue
Suite 400
Miami, Florida 33172
ABN AMRO N.V.
135 South LaSalle Street, Suite 1260
Chicago, Illinois 60603
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of December 1, 2000 and related to the above-referenced Certificates
(the "Agreement"), Wells Fargo Bank Minnesota, N.A., as custodian on behalf of
the Trustee (the "Custodian"), hereby certifies as to each Original Mortgage
Loan subject to the Agreement (except as identified in the exception report
attached hereto) that: (i) the original Mortgage Note specified in clause (i) of
the definition of "Mortgage File" in the Agreement and all allonges thereto, if
any (or a copy of such Mortgage Note, together with a "lost note affidavit"
certifying that the original of such Mortgage Note has been lost), the original
or copy of each document specified in clauses (ii) through (iv) of the
definition of "Mortgage File" in the Agreement, the original or copy of the
policy of title insurance specified in clause (vii) of the definition of
"Mortgage File" in the Agreement, originals or copies of any documents specified
in clauses (iii) and (v) of the definition of "Mortgage File" in the Agreement
(to the extent that the Trustee has actual knowledge that such documents exist),
the original or a copy of each document specified in clause (viii) of the
B-3-1
<PAGE> 310
definition of "Mortgage File" in the Agreement (without regard to the
parenthetical in such clause (viii)) and, in the case of each Original Mortgage
Loan identified on Exhibit B-1E, the original or a copy of the Loan REMIC
Declaration specified in clause (xii) of the definition of "Mortgage File" is in
its possession or the possession of a Custodian on its behalf; (ii) if the date
of this report is more than 180 days after the Closing Date, the
recordation/filing contemplated by Section 2.01(e) has been completed (based
solely on receipt by the Trustee or a Custodian on its behalf of the particular
recorded/filed documents); (iii) all documents received by it or any Custodian
with respect to such Mortgage Loan have been reviewed by it or by such Custodian
on its behalf and (A) appear regular on their face (handwritten additions,
changes or corrections shall not constitute irregularities if initialed by the
Borrower), (B) appear to have been executed and (C) purport to relate to such
Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a)
and Section 2.02(b) of the Agreement and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (ii)(A) (other than the zip code), (iii)(A) and (vi)(B) of
the definition of "Mortgage Loan Schedule" in the Agreement accurately reflects
the information set forth in the Mortgage File. The Trustee, upon request, shall
distribute current exception reports to any party to the Agreement, the Rating
Agencies or the Certificateholders for as long as there are exceptions
outstanding.
Pursuant to Section 2.02(c) of the Agreement, the Custodian is not
under any obligation to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are valid, legal, effective, genuine,
binding, enforceable, sufficient or appropriate for the represented purpose or
that they are other than what they purport to be on their face. Furthermore, the
Custodian shall not have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
In performing the reviews contemplated by Section 2.02(a) and Section
2.02(b) of the Agreement, the Trustee or a Custodian on its behalf may have
conclusively relied on the related Mortgage Loan Seller as to the purported
genuineness of any such document and any signature thereon. It is understood
that the scope of the Trustee's and any Custodian's review of the Mortgage Files
is limited solely to confirming that the documents specified in clauses (i),
(ii), (iii) (to the extent that the Trustee has actual knowledge that such
documents exist), (iv), (v) (to the extent that the Trustee has actual knowledge
that such documents exist), (vii), (viii) and (xii) of the definition of
"Mortgage File" in the Agreement have been received and such additional
information as will be necessary for making and/or delivering the certifications
required by Section 2.02(a) and Section 2.02(b) of the Agreement. Further, with
respect to UCC filings, absent actual knowledge or copies of UCC filings in the
Mortgage File indicating otherwise, the Trustee shall assume for purposes of the
certifications delivered pursuant to Section 2.02 of the Agreement, that one
state level UCC filing and one county level UCC filing was made for each
Mortgaged Property operated as a healthcare or hospitality property.
B-3-2
<PAGE> 311
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
WELLS FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely
as Custodian
By:______________________________________
Name:
Title:
B-3-3
<PAGE> 312
EXHIBIT B-4
FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
FOR LOANS HAVING BALANCE OF (A) $5,000,000 OR LESS, OR (B) LESS THAN 1%
OF OUTSTANDING POOL BALANCE, WHICHEVER IS LESS
To: Standard & Poor's Ratings Services
55 Water Street
New York, New York 10041
Attn: Commercial Mortgage Surveillance
Moody's Investors Service, Inc.
99 Church Street, 6th floor
New York, New York 10007
From: Midland Loan Services, Inc., in its capacity as Master Servicer (the
"Master Servicer") under the Pooling and Servicing Agreement dated as
of December 1, 2000 (the "Pooling and Servicing Agreement"), among the
Master Servicer, Salomon Brothers Mortgage Securities VII, Inc. as
Depositor, Lennar Partners, Inc. as Special Servicer, Wells Fargo Bank
Minnesota, N.A. as Trustee and LaSalle Bank National Association as
Certificate Administrator and as Tax Administrator.
Date: _________, 20___
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series 2000-C3
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on
the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties identified
on the Mortgage Loan Schedule by the following names:
____________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the Borrower has consummated a defeasance
of the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
B-4-1
<PAGE> 313
____ a full defeasance of the payments scheduled
to be due in respect of the entire Principal
Balance of the Mortgage Loan; or
____ a partial defeasance of the payments
scheduled to be due in respect of a portion
of the Principal Balance of the Mortgage
Loan that represents ___% of the entire
Principal Balance of the Mortgage Loan and,
under the Mortgage, has an allocated loan
amount of $____________ or _______% of the
entire Principal Balance;
2. Certify as to each of the following, and any additional
explanatory notes set forth on Exhibit A hereto:
The Mortgage Loan Documents permit the defeasance, and the
terms and conditions for defeasance specified therein were
satisfied in all material respects in completing the
defeasance.
The defeasance was consummated on __________, 20__.
The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section
2(a)(16) of the Investment Company Act of 1940 as amended (15
U.S.C. 80a-1), (ii) are listed as "Qualified Investments for
'AAA' Financings" under Paragraphs 1, 2 or 3 of "Cash Flow
Approach" in Standard & Poor's Public Finance Criteria 2000,
as amended to the date of the defeasance, (iii) are rated
'AAA' by Standard & Poor's, (iv) if they include a principal
obligation, provide for a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change, and (v)
are not subject to prepayment, call or early redemption. Such
securities have the characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the
Servicing Standard) that the defeasance will not result in an
Adverse REMIC Event.
The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") as to
which one of the statements checked below is true:
____ the related Borrower was a Single-Purpose
Entity (as defined in Standard & Poor's
Structured Finance Ratings Real Estate
Finance Criteria, as amended to the date of
the defeasance (the "S&P Criteria")) as of
the date of the defeasance, and after the
defeasance owns no assets other than the
defeasance collateral and real property
securing Mortgage Loans included in the
pool.
B-4-2
<PAGE> 314
____ the related Borrower designated a
Single-Purpose Entity (as defined in the S&P
Criteria) to own the defeasance collateral;
or
____ the Master Servicer designated a
Single-Purpose Entity (as defined in the S&P
Criteria) established for the benefit of the
Trust to own the defeasance collateral.
The Master Servicer received a broker or similar confirmation
of the credit, or the accountant's letter described below
contained statements that it reviewed a broker or similar
confirmation of the credit, of the defeasance collateral to an
Eligible Account in the name of the Defeasance Obligor, which
account is maintained as a securities account by the
Certificate Administrator acting as a securities intermediary.
As securities intermediary, Certificate Administrator is
obligated to make the scheduled payments on the Mortgage Loan
from the proceeds of the defeasance collateral directly to the
Master Servicer's collection account in the amounts and on the
dates specified in the Mortgage Loan Documents or, in a
partial defeasance, the portion of such scheduled payments
attributed to the allocated loan amount for the real property
defeased, increased by any defeasance premium specified in the
Mortgage Loan Documents (the "Scheduled Payments").
The Master Servicer received from the Borrower written
confirmation from a firm of independent certified public
accountants, who were approved by the Master Servicer in
accordance with the Servicing Standard, stating that (i)
revenues from principal and interest payments made on the
defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient
to timely pay each of the Scheduled Payments after the
defeasance including the payment in full of the Mortgage Loan
(or the allocated portion thereof in connection with a partial
defeasance) on its Maturity Date (or, in the case of an ARD
Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be
applied to make Scheduled Payments within four (4) months
after the date of receipt, and (iii) interest income from the
defeasance collateral to the Defeasance Obligor in any
calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the
allocated portion thereof in a partial defeasance) for such
year.
The Master Servicer received opinions from counsel, who were
approved by the Master Servicer in accordance with the
Servicing Standard, that (i) the agreements executed by the
Borrower and/or the Defeasance Obligor in connection with the
defeasance are enforceable against them in accordance with
their terms, and (ii) the Trustee will have a perfected, first
priority security interest in the defeasance collateral
described above.
B-4-3
<PAGE> 315
The agreements executed in connection with the defeasance (i)
permit reinvestment of proceeds of the defeasance collateral
only in Permitted Investments, (ii) permit release of surplus
defeasance collateral and earnings on reinvestment to the
Defeasance Obligor or the Borrower only after the Mortgage
Loan has been paid in full, if any such release is permitted,
(iii) prohibit any subordinate liens against the defeasance
collateral, and (iv) provide for payment from sources other
than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities
intermediary for administering the defeasance and the
securities account and all fees and expenses of maintaining
the existence of the Defeasance Obligor.
The entire Principal Balance of the Mortgage Loan as of the
date of defeasance was $___________ [$5,000,000 OR LESS OR
LESS THAN ONE PERCENT OF POOL BALANCE, WHICHEVER IS LESS]
which is less than 1% of the Aggregate Certificate Balance of
the Certificates as of the date of the most recent Paying
Agent's Monthly Certificateholder Report received by us (the
"Current Report").
The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total
of all fully and partially defeased Mortgage Loans to
$__________________, which is _____% of the Aggregate
Certificate Balance of the Certificates as of the date of the
Current Report.
3. Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance described above and that originals or copies of
such agreements, instruments and opinions have been transmitted to the Trustee
or Custodian on its behalf for placement in the related Mortgage File or, to the
extent not required to be part of the related Mortgage File, are in the
possession of the Master Servicer as part of the Master Servicer's Mortgage
File.
4. Certify and confirm that the determinations and
certifications described above were rendered in accordance with the Servicing
Standard set forth in, and the other applicable terms and conditions of, the
Pooling and Servicing Agreement; and
5. Certify that the individual under whose hand the Master
Servicer has caused this Notice and Certification to be executed did constitute
a Servicing Officer as of the date of the defeasance described above.
6. Agree to provide copies of all items listed in Exhibit B to
you upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
B-4-4
<PAGE> 316
MIDLAND LOAN SERVICES, INC.
as Master Servicer
By:______________________________________
Name:
Title:
B-4-5
<PAGE> 317
EXHIBIT C-1
LETTERS OF REPRESENTATIONS AMONG DEPOSITOR,
CERTIFICATE ADMINISTRATOR AND INITIAL DEPOSITORY
C-1-1
<PAGE> 318
(2 copies of 13 pgs)
[The Depository Trust Company Logo]
Book-Entry-Only Collateralized Mortgage Obligations (CMOs)--
Without Owner Option to Redeem/Pass-Through Securities/
and Asset-Backed Securities
LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Agent]
Salomon Brothers Mortgage Securities VII, Inc.
____________________________________
[Name of Issuer]
LaSalle Bank National Association
_____________________________________
[Name of Agent]
December 19, 2000
___________________
[Date]
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
55 Water Street 49th Floor
New York, NY 10041-0099
Re: Salomon Brothers Mortgage Securities VII, Inc.
______________________________________________________
Commercial Mortgage Pass-Through Certificates
______________________________________________________
Series 2000-C3, A-1, A-2, B, C, D, E, F
______________________________________________________
[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain
matters relating to the Securities. Agent shall act as trustee, paying agent,
fiscal agent, or other such agent of Issuer with respect to the Securities. The
Securities have been issued pursuant to a trust indenture, trust agreement,
pooling and servicing agreement or other such document authorizing the issuance
of the Securities dated Dec. 1, 2000 (the "Document"). Salomon Smith Barney
Inc., Greenwich Capital Markets, Inc., Chase Securities Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc. and ABN AMRO Bank N.V.
["Underwriter/Placement Agent"]
<PAGE> 319
are distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC,
and to act in accordance with its Rules with respect to the Securities, Issuer
and Agent make the following representations to DTC:
1. Prior to closing on the Securities on December 19, 2000 there
shall be deposited with DTC one or more Security certificates registered in the
name of DTC's nominee, Cede & Co., for each stated maturity of the Securities in
the face amounts set forth on Schedule A hereto, the total of which represents
100% of the principal amount of such Securities. If, however, the aggregate
principal amount of any maturity exceeds $400 million, one certificate shall be
issued with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount. Each
Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer or its agent for registration of
transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
Issuer represents:[NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING, AND SHALL
CROSS OUT THE OTHER.]
[The Security certificate(s) shall remain in Agent's custody as a
"Balance Certificate" subject to the provisions of the Balance Certificate
Agreement between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it
receives an instruction originated by a DTC participant ("Participant") through
DTC's Deposit/Withdrawal at Custodian ("DWAC") system to increase the
Participant's account by a specified number of Securities (a "Deposit
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it
receives an instruction originated by Participant through the DWAC system to
decrease the Participant's account by a specified number of Securities (a
"Withdrawal Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time)
that day, either approve or cancel the Withdrawal Instruction through the DWAC
system.
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<PAGE> 320
Agent agrees that its approval of a Deposit or Withdrawal
Instruction shall be deemed to be the receipt by DTC of a new reissued or
reregistered certificated Security on registration of transfer to the name of
Cede & Co. for the quantity of Securities evidenced by the Balance Certificate
after the Deposit or Withdrawal Instruction is effected.]
[Alternative Representation Crossed Out]
2. Issuer: (a) understands that DTC has no obligation to, and will
not, communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall send notice of such record date to DTC no fewer
than 15 calendar days in advance of such record date. Notices to DTC pursuant to
this Paragraph by telecopy shall be directed to DTC's Reorganization Department,
Proxy Unit at (212) 855-5181 or (212) 855-5182. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5202. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
4. In the event of a full or partial redemption, Issuer or Agent
shall send a notice to DTC specifying: (a) the amount of the redemption or
refunding; (b) in the case of a refunding, the maturity date(s) established
under the refunding; and (c) the date such notice is to be distributed to
Security holders (the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before or, if
possible, two business days before the Publication Date. Issuer or Agent shall
forward such notice either in a separate secure transmission for each CUSIP
number or in a secure transmission for multiple CUSIP numbers (if applicable)
which includes a manifest or list of each CUSIP number submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be no fewer than 30 days nor more than 60 days prior to
the redemption date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to this Paragraph by
telecopy shall be directed to DTC's Call Notification Department at (516) 227-
4164 or (516) 227-4190. If the party sending the notice does not receive a
telecopy receipt from DTC confirming that the notice has been received, such
party shall telephone (516) 227-4070. Notices to DTC pursuant to this Paragraph,
by mail or by any other means, shall be sent to:
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<PAGE> 321
Manager, Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
5. In the event of an invitation to tender the Securities
(including mandatory tenders, exchanges, and capital changes), notice by Issuer
or Agent to Security holders shall be sent to DTC specifying the terms of the
tender and the Publication Date of such notice. Such notice shall be sent to DTC
by a secure means (e.g.,legible telecopy, registered or certified mail,
overnight delivery) in a timely manner designed to assure that such notice is in
DTC's possession no later than the close of business on the business day before
or, if possible, two business days before the Publication Date. Issuer or Agent
shall forward such notice either in a separate secure transmission for each
CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method to verify
subsequently the use and timeliness of such notice.) Notices to DTC pursuant to
this Paragraph and notices of other corporate actions by telecopy shall be
directed to DTC's Reorganization Department at (212) 855-5488. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (212) 855-5290. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
6. It is understood that if the Security holders shall at any time
have the right to tender the Securities to Issuer and require that Issuer
repurchase such holders' Securities pursuant to the Document and Cede & Co., as
nominee of DTC, or its registered assigns, as the record owner, is entitled to
tender the Securities, such tenders will be effected by means of DTC's Repayment
Option Procedures. Under the Repayment Option Procedures, DTC shall receive,
during the applicable tender period, instructions from its Participants to
tender Securities for purchase. Issuer and Agent agree that such tender for
purchase may be made by DTC by means of a book-entry credit of such Securities
to the account of Agent, provided that such credit is made on or before the
final day of the applicable tender period. DTC agrees that promptly after the
recording of any such book-entry credit, it will provide to Agent an Agent
Receipt and Confirmation or the equivalent, in accordance with the Repayment
Option Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand
or by a secure means (e.g.,legible facsimile transmission, registered or
certified mail, overnight delivery) in a timely manner designed to assure that
such notice is in DTC's possession no later than the close of business two
business days before the Publication Date. The Publication Date shall be no
fewer than 15 days prior to the expiration date of the applicable tender period.
Such notice shall state whether any partial redemption of the Securities is
scheduled to occur during the applicable optional tender
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<PAGE> 322
period. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Put Bond Unit at (212) 855-5235. If the party sending the notice does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5230. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
7. All notices and payment advices sent to DTC shall contain the
CUSIP number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to
the dollar amount per $1,000 original face value (or other minimum authorized
denomination if less than $1,000 face value) payable on each payment date
allocated as to the interest and principal portions thereof preferably five, but
no fewer than two, business days prior to such payment date. Such notices, which
shall also contain the current pool factor, any special adjustments to
principal/interest rates (e.g.,adjustments due to deferred interest or
shortfall), and Agent contact's name and telephone number, shall be sent by
telecopy to DTC's Dividend Department at (212) 855-4555, and receipt of such
notices shall be confirmed by telephoning (212) 855-4550. Notices to DTC,
pursuant to this Paragraph, by mail or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th Floor
New York, NY 10041-0099
9. Issuer represents:[NOTE: ISSUER MUST REPRESENT ONE OF THE
FOLLOWING, AND SHALL CROSS OUT THE OTHER.][The interest accrual period is record
date to record date.]
[Alternative Representation Crossed Out]
10. Issuer or Agent shall provide a written notice of interest
payment information, including the stated coupon rate information, to DTC as
soon as the information is available. Issuer or Agent shall provide such notice
directly to DTC electronically, as previously arranged by Issuer or Agent and
DTC. If electronic transmission has not been arranged, absent any other
arrangements between Issuer or Agent and DTC, such information shall be sent by
telecopy to DTC's Dividend Department at (212) 855-4555 or (212) 855-4556. If
the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone (212)
855-4550. Notices to DTC pursuant to this Paragraph, by mail or by any other
means, shall be sent to DTC's Dividend Department as indicated in Paragraph 8.
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<PAGE> 323
11. Interest payments and principal payments that are part of
periodic principal-and- interest payments shall be received by Cede & Co., as
nominee of DTC, or its registered assigns, in same-day funds no later than 2:30
p.m. (Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m.
(Eastern Time) on the payment date all such interest payments due Agent, or at
such earlier time as may be required by Agent to guarantee that DTC shall
receive payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the
payment date. Absent any other arrangements between Issuer or Agent and DTC,
such funds shall be wired to the Dividend Deposit Account number that will be
stamped on the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no
later than 12:00 noon (Eastern Time) on the payment date, automated notification
of CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent by
telecopy, shall be directed to DTC Dividend Department at (212) 855-4633 and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to each
CUSIP number shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such maturity and redemption payments due Agent, or at such earlier
time as required by Agent to guarantee that DTC shall receive payment in
same-day funds no later than 2:30 p.m. (Eastern Time) on the payment date.
Absent any other arrangements between Issuer or Agent and DTC, such funds shall
be wired to the Redemption Deposit Account number that will be stamped on the
signature page hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the
result of optional tenders for purchase effected by means of DTC's Repayment
Option Procedures shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such reorganization payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Reorganization Deposit Account number that will be stamped on the signature page
hereof at the time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders
remittance reports with respect to the Securities. If sent by facsimile
transmission, such reports shall be sent to (212) 855- 4777. If the party
sending the report does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (212) 855-4590.
16. DTC may direct Issuer or Agent to use any other number or
address as the number or address to which notices or payments of interest or
principal may be sent.
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<PAGE> 324
17. In the event of a redemption, acceleration, or any other
similar transaction (e.g., tender made and accepted in response to Issuer's or
Agent's invitation) necessitating a reduction in the aggregate principal amount
of Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent (at which time DTC will confirm with Issuer or Agent
the aggregate principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate fully with DTC
by taking appropriate action to make available one or more separate certificates
evidencing Securities to any Participant having Securities credited to its DTC
accounts.
20. Nothing herein shall be deemed to require Agent to advance
funds on behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
22. This Letter of Representations shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this
Letter of Representations is responsible for confirming that such notice was
properly received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to,
and shall not have any responsibility to, monitor or ascertain the compliance of
any transactions in the Securities with the following, as amended from time to
time: (a) any exemptions from registration under the Securities Act of 1933; (b)
the Investment Company Act of 1940; (c) the Employee Retirement Income Security
Act of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any self-
regulatory organizations (as defined under the Securities Exchange Act of 1934);
or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLs. This authorization, unless revoked by Issuer, shall
continue with respect to the Securities while any Securities are on deposit
-7-
<PAGE> 325
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (212) 855-5182. Receipt of such requests shall be confirmed by
telephoning (212) 855-5202. Requests for SPLs, sent by mail or by any other
means, shall be directed to the address indicated in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements
stated in DTC's Operational Arrangements, as they may be amended from time to
time. DTC's Operational Arrangements are posted on DTC's website at
"www.DTC.org."
27. The following rider(s), attached hereto, are hereby
incorporated into this Letter of Representations:
_______________________________________________________________________________
_______________________________________________________________________________
-8-
<PAGE> 326
NOTES:
A. IF THERE IS AN AGENT (AS DEFINED IN THIS LETTER OF REPRESENTATIONS), AGENT AS
WELL AS ISSUER MUST SIGN THIS LETTER. IF THERE IS NO AGENT, IN SIGNING THIS
LETTER ISSUER ITSELF UNDERTAKES TO PERFORM ALL OF THE OBLIGATIONS SET FORTH
HEREIN.
B. SCHEDULE B CONTAINS STATEMENTS THAT DTC BELIEVES ACCURATELY DESCRIBE DTC, THE
METHOD OF EFFECTING BOOK-ENTRY TRANSFERS OF SECURITIES DISTRIBUTED THROUGH DTC,
AND CERTAIN RELATED MATTERS.
Very truly yours,
Salomon Brothers Mortgage Securities VII, Inc.
__________________________________________
[Issuer]
By: ____________________________________
[Authorized Officer's Signature]
LaSalle Bank National Association
_______________________________________
[Agent]
By: ____________________________________
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
<PAGE> 327
SCHEDULE A
<TABLE>
<CAPTION>
Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-3
Certificates CUSIP Number Principal Amount Maturity Date Interest Rate
------------ ------------ ---------------- ------------- -------------
<S> <C> <C> <C> <C>
A-1-1 79548C AA 4 $180,689,000 7/09 6.341%
---------------------------------------------------------------------------------------------
A-2-1 79548C AB 2 $400,000,000 10/10 6.592%
---------------------------------------------------------------------------------------------
A-2-2 79548C AB 2 $123,600,000 10/10 6.592%
---------------------------------------------------------------------------------------------
B-1 79548C AC 0 $43,446,000 10/10 6.758%
---------------------------------------------------------------------------------------------
C-1 79548C AD 8 $36,586,000 11/10 6.906%
---------------------------------------------------------------------------------------------
D-1 79548C AE 6 $13,720,000 11/10 7.204%
---------------------------------------------------------------------------------------------
E-1 79548C AF 3 $13,720,000 11/10 7.517%
---------------------------------------------------------------------------------------------
F-1 79548C AG 1 $13,720,000 11/10 7.595%
---------------------------------------------------------------------------------------------
</TABLE>
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<PAGE> 328
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $400 million, one certificate
will be issued with respect to each $400 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Direct
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks, and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The Rules
applicable to DTC and its Direct and Indirect Participants are on file with the
Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
-11-
<PAGE> 329
4. To facilitate subsequent transfers, all Securities deposited by
Direct Participants with DTC are registered in the name of DTC's partnership
nominee, Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. Beneficial Owners of
Securities may wish to ascertain that the nominee holding the Securities for
their benefit has agreed to obtain and transmit notices to Beneficial Owners, or
in the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of the notices be provided
directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent
or vote with respect to the Securities. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividends to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
-12-
<PAGE> 330
[9. A Beneficial Owner shall give notice to elect to have its
Securities purchased or tendered, through its Participant, to
[Tender/Remarketing] Agent, and shall effect delivery of such Securities by
causing the Direct Participant to transfer the Participant's interest in the
Securities, on DTC's records, to [Tender/Remarketing] Agent. The requirement for
physical delivery of Securities in connection with an optional tender or a
mandatory purchase will be deemed satisfied when the ownership rights in the
Securities are transferred by Direct Participants on DTC's records and followed
by a book-entry credit of tendered Securities to [Tender/Remarketing] Agent's
DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
-13-
<PAGE> 331
[The Depository Trust Company Logo]
Book-Entry-Only Collateralized Mortgage Obligations (CMOs)--
Without Owner Option to Redeem/Pass-Through Securities/
and Asset-Backed Securities
LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Agent]
Salomon Brothers Mortgage Securities VII, Inc.
____________________________________
[Name of Issuer]
LaSalle Bank National Association
_____________________________________
[Name of Agent]
December 19, 2000
___________________
[Date]
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
55 Water Street 49th Floor
New York, NY 10041-0099
Re: Salomon Brothers Mortgage Securities VII, Inc.
______________________________________________________
Commercial Mortgage Pass-Through Certificates,
______________________________________________________
Series 2000 C-3, Class X, Class G
______________________________________________________
[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain
matters relating to the Securities. Agent shall act as trustee, paying agent,
fiscal agent, or other such agent of Issuer with respect to the Securities. The
Securities have been issued pursuant to a trust indenture, trust agreement,
pooling and servicing agreement or other such document authorizing the issuance
of the Securities dated Dec. 1, 2000 (the "Document"). Salomon Smith Barney
Inc., Greenwich Capital Markets, Inc. ["Underwriter/Placement Agent"]
<PAGE> 332
are distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC,
and to act in accordance with its Rules with respect to the Securities, Issuer
and Agent make the following representations to DTC:
1. Prior to closing on the Securities on December 19, 2000 there
shall be deposited with DTC one or more Security certificates registered in the
name of DTC's nominee, Cede & Co., for each stated maturity of the Securities in
the face amounts set forth on Schedule A hereto, the total of which represents
100% of the principal amount of such Securities. If, however, the aggregate
principal amount of any maturity exceeds $400 million, one certificate shall be
issued with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount. Each
Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer or its agent for registration of
transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
Issuer represents:[NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING, AND SHALL
CROSS OUT THE OTHER.]
[The Security certificate(s) shall remain in Agent's custody as a
"Balance Certificate" subject to the provisions of the Balance Certificate
Agreement between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it
receives an instruction originated by a DTC participant ("Participant") through
DTC's Deposit/Withdrawal at Custodian ("DWAC") system to increase the
Participant's account by a specified number of Securities (a "Deposit
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it
receives an instruction originated by Participant through the DWAC system to
decrease the Participant's account by a specified number of Securities (a
"Withdrawal Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time)
that day, either approve or cancel the Withdrawal Instruction through the DWAC
system.
-2-
<PAGE> 333
Agent agrees that its approval of a Deposit or Withdrawal
Instruction shall be deemed to be the receipt by DTC of a new reissued or
reregistered certificated Security on registration of transfer to the name of
Cede & Co. for the quantity of Securities evidenced by the Balance Certificate
after the Deposit or Withdrawal Instruction is effected.]
[Alternative Representation Crossed Out]
2. Issuer: (a) understands that DTC has no obligation to, and will
not, communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall send notice of such record date to DTC no fewer
than 15 calendar days in advance of such record date. Notices to DTC pursuant to
this Paragraph by telecopy shall be directed to DTC's Reorganization Department,
Proxy Unit at (212) 855-5181 or (212) 855-5182. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5202. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
4. In the event of a full or partial redemption, Issuer or Agent
shall send a notice to DTC specifying: (a) the amount of the redemption or
refunding; (b) in the case of a refunding, the maturity date(s) established
under the refunding; and (c) the date such notice is to be distributed to
Security holders (the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before or, if
possible, two business days before the Publication Date. Issuer or Agent shall
forward such notice either in a separate secure transmission for each CUSIP
number or in a secure transmission for multiple CUSIP numbers (if applicable)
which includes a manifest or list of each CUSIP number submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be no fewer than 30 days nor more than 60 days prior to
the redemption date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to this Paragraph by
telecopy shall be directed to DTC's Call Notification Department at (516) 227-
4164 or (516) 227-4190. If the party sending the notice does not receive a
telecopy receipt from DTC confirming that the notice has been received, such
party shall telephone (516) 227-4070. Notices to DTC pursuant to this Paragraph,
by mail or by any other means, shall be sent to:
-3-
<PAGE> 334
Manager, Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
5. In the event of an invitation to tender the Securities
(including mandatory tenders, exchanges, and capital changes), notice by Issuer
or Agent to Security holders shall be sent to DTC specifying the terms of the
tender and the Publication Date of such notice. Such notice shall be sent to DTC
by a secure means (e.g.,legible telecopy, registered or certified mail,
overnight delivery) in a timely manner designed to assure that such notice is in
DTC's possession no later than the close of business on the business day before
or, if possible, two business days before the Publication Date. Issuer or Agent
shall forward such notice either in a separate secure transmission for each
CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method to verify
subsequently the use and timeliness of such notice.) Notices to DTC pursuant to
this Paragraph and notices of other corporate actions by telecopy shall be
directed to DTC's Reorganization Department at (212) 855-5488. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (212) 855-5290. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
6. It is understood that if the Security holders shall at any time
have the right to tender the Securities to Issuer and require that Issuer
repurchase such holders' Securities pursuant to the Document and Cede & Co., as
nominee of DTC, or its registered assigns, as the record owner, is entitled to
tender the Securities, such tenders will be effected by means of DTC's Repayment
Option Procedures. Under the Repayment Option Procedures, DTC shall receive,
during the applicable tender period, instructions from its Participants to
tender Securities for purchase. Issuer and Agent agree that such tender for
purchase may be made by DTC by means of a book-entry credit of such Securities
to the account of Agent, provided that such credit is made on or before the
final day of the applicable tender period. DTC agrees that promptly after the
recording of any such book-entry credit, it will provide to Agent an Agent
Receipt and Confirmation or the equivalent, in accordance with the Repayment
Option Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand
or by a secure means (e.g.,legible facsimile transmission, registered or
certified mail, overnight delivery) in a timely manner designed to assure that
such notice is in DTC's possession no later than the close of business two
business days before the Publication Date. The Publication Date shall be no
fewer than 15 days prior to the expiration date of the applicable tender period.
Such notice shall state whether any partial redemption of the Securities is
scheduled to occur during the applicable optional tender
-4-
<PAGE> 335
period. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Put Bond Unit at (212) 855-5235. If the party sending the notice does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5230. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
7. All notices and payment advices sent to DTC shall contain the
CUSIP number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to
the dollar amount per $1,000 original face value (or other minimum authorized
denomination if less than $1,000 face value) payable on each payment date
allocated as to the interest and principal portions thereof preferably five, but
no fewer than two, business days prior to such payment date. Such notices, which
shall also contain the current pool factor, any special adjustments to
principal/interest rates (e.g.,adjustments due to deferred interest or
shortfall), and Agent contact's name and telephone number, shall be sent by
telecopy to DTC's Dividend Department at (212) 855-4555, and receipt of such
notices shall be confirmed by telephoning (212) 855-4550. Notices to DTC,
pursuant to this Paragraph, by mail or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th Floor
New York, NY 10041-0099
9. Issuer represents:[NOTE: ISSUER MUST REPRESENT ONE OF THE
FOLLOWING, AND SHALL CROSS OUT THE OTHER.][The interest accrual period is record
date to record date.] [Alternative Representation Crossed Out]
10. Issuer or Agent shall provide a written notice of interest
payment information, including the stated coupon rate information, to DTC as
soon as the information is available. Issuer or Agent shall provide such notice
directly to DTC electronically, as previously arranged by Issuer or Agent and
DTC. If electronic transmission has not been arranged, absent any other
arrangements between Issuer or Agent and DTC, such information shall be sent by
telecopy to DTC's Dividend Department at (212) 855-4555 or (212) 855-4556. If
the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone (212)
855-4550. Notices to DTC pursuant to this Paragraph, by mail or by any other
means, shall be sent to DTC's Dividend Department as indicated in Paragraph 8.
-5-
<PAGE> 336
11. Interest payments and principal payments that are part of
periodic principal-and- interest payments shall be received by Cede & Co., as
nominee of DTC, or its registered assigns, in same-day funds no later than 2:30
p.m. (Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m.
(Eastern Time) on the payment date all such interest payments due Agent, or at
such earlier time as may be required by Agent to guarantee that DTC shall
receive payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the
payment date. Absent any other arrangements between Issuer or Agent and DTC,
such funds shall be wired to the Dividend Deposit Account number that will be
stamped on the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no
later than 12:00 noon (Eastern Time) on the payment date, automated notification
of CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent by
telecopy, shall be directed to DTC Dividend Department at (212) 855-4633 and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to each
CUSIP number shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such maturity and redemption payments due Agent, or at such earlier
time as required by Agent to guarantee that DTC shall receive payment in
same-day funds no later than 2:30 p.m. (Eastern Time) on the payment date.
Absent any other arrangements between Issuer or Agent and DTC, such funds shall
be wired to the Redemption Deposit Account number that will be stamped on the
signature page hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the
result of optional tenders for purchase effected by means of DTC's Repayment
Option Procedures shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such reorganization payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Reorganization Deposit Account number that will be stamped on the signature page
hereof at the time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders
remittance reports with respect to the Securities. If sent by facsimile
transmission, such reports shall be sent to (212) 855- 4777. If the party
sending the report does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (212) 855-4590.
16. DTC may direct Issuer or Agent to use any other number or
address as the number or address to which notices or payments of interest or
principal may be sent.
-6-
<PAGE> 337
17. In the event of a redemption, acceleration, or any other
similar transaction (e.g., tender made and accepted in response to Issuer's or
Agent's invitation) necessitating a reduction in the aggregate principal amount
of Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent (at which time DTC will confirm with Issuer or Agent
the aggregate principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate fully with DTC
by taking appropriate action to make available one or more separate certificates
evidencing Securities to any Participant having Securities credited to its DTC
accounts.
20. Nothing herein shall be deemed to require Agent to advance
funds on behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
22. This Letter of Representations shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this
Letter of Representations is responsible for confirming that such notice was
properly received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to,
and shall not have any responsibility to, monitor or ascertain the compliance of
any transactions in the Securities with the following, as amended from time to
time: (a) any exemptions from registration under the Securities Act of 1933; (b)
the Investment Company Act of 1940; (c) the Employee Retirement Income Security
Act of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any self-
regulatory organizations (as defined under the Securities Exchange Act of 1934);
or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLs. This authorization, unless revoked by Issuer, shall
continue with respect to the Securities while any Securities are on deposit
-7-
<PAGE> 338
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (212) 855-5182. Receipt of such requests shall be confirmed by
telephoning (212) 855-5202. Requests for SPLs, sent by mail or by any other
means, shall be directed to the address indicated in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements
stated in DTC's Operational Arrangements, as they may be amended from time to
time. DTC's Operational Arrangements are posted on DTC's website at
"www.DTC.org."
27. The following rider(s), attached hereto, are hereby
incorporated into this Letter of Representations:
Representations for Rule 144A Securities
_______________________________________________________________________________
________________________________________________________________________________
-8-
<PAGE> 339
NOTES:
A. IF THERE IS AN AGENT (AS DEFINED IN THIS LETTER OF REPRESENTATIONS), AGENT AS
WELL AS ISSUER MUST SIGN THIS LETTER. IF THERE IS NO AGENT, IN SIGNING THIS
LETTER ISSUER ITSELF UNDERTAKES TO PERFORM ALL OF THE OBLIGATIONS SET FORTH
HEREIN.
B. SCHEDULE B CONTAINS STATEMENTS THAT DTC BELIEVES ACCURATELY DESCRIBE DTC, THE
METHOD OF EFFECTING BOOK-ENTRY TRANSFERS OF SECURITIES DISTRIBUTED THROUGH DTC,
AND CERTAIN RELATED MATTERS.
Very truly yours,
Salomon Brothers Mortgage Securities VII, Inc.
______________________________________________
[Issuer]
By: __________________________________________
[Authorized Officer's Signature]
La Salle Bank National Association
______________________________________________
[Agent]
By: __________________________________________
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
<PAGE> 340
SCHEDULE A
Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-3
<TABLE>
<CAPTION>
Certificates CUSIP Number Principal Amount Maturity Date Interest Rate
------------ ------------ ---------------- ------------- -------------
<S> <C> <C> <C> <C>
X-1 79548C AR 7 $400,000,000 12/33 1.4412%
X-2 79548C AR 7 $400,000,000 12/33 1.4412%
X-3 79548C AR 7 $114,661,060 12/33 1.4412%
G-1 79548C AH 9 $ 13,720,000 11/10 8.090%
</TABLE>
-10-
<PAGE> 341
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $400 million, one certificate
will be issued with respect to each $400 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Direct
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks, and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The Rules
applicable to DTC and its Direct and Indirect Participants are on file with the
Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
-11-
<PAGE> 342
4. To facilitate subsequent transfers, all Securities deposited by
Direct Participants with DTC are registered in the name of DTC's partnership
nominee, Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. Beneficial Owners of
Securities may wish to ascertain that the nominee holding the Securities for
their benefit has agreed to obtain and transmit notices to Beneficial Owners, or
in the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of the notices be provided
directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent
or vote with respect to the Securities. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividends to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
-12-
<PAGE> 343
[9. A Beneficial Owner shall give notice to elect to have its
Securities purchased or tendered, through its Participant, to
[Tender/Remarketing] Agent, and shall effect delivery of such Securities by
causing the Direct Participant to transfer the Participant's interest in the
Securities, on DTC's records, to [Tender/Remarketing] Agent. The requirement for
physical delivery of Securities in connection with an optional tender or a
mandatory purchase will be deemed satisfied when the ownership rights in the
Securities are transferred by Direct Participants on DTC's records and followed
by a book-entry credit of tendered Securities to [Tender/Remarketing] Agent's
DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
-13-
<PAGE> 344
[The Depository Trust Company Logo]
REPRESENTATIONS FOR RULE 144A SECURITIES--
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
1. Issuer represents that at the time of initial registration in the
name of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a CUSIP
or CINS identification number is obtained for all unrestricted securities of the
same class that is different from any CUSIP or CINS identification number
assigned to a Legally or Contractually Restricted Security of such class, and
shall notify DTC promptly in the event that it is unable to do so. Issuer
represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are:[NOTE: ISSUER MUST
REPRESENT ONE OF THE FOLLOWING, AND SHALL CROSS OUT THE OTHER.]
[an issue of nonconvertible debt securities or nonconvertible preferred stock
which is rated in one of the top four categories by a nationally recognized
statistical rating organization ("Investment Grade Securities").]
[Alternative Representation Crossed Out]
3. If the Securities are not Investment-Grade Securities, Issuer and
Agent acknowledge that if such Securities cease to be included in an SRO Rule
144A System during any period in which such Securities are Legally or
Contractually Restricted Securities, such Securities shall no longer be eligible
for DTC's services. Furthermore, DTC may discontinue providing its services as
securities depository with respect to the Securities at any time by giving
reasonable notice to Issuer or Agent. Under any of the aforementioned
circumstances, at DTC's request, Issuer and Agent shall cooperate fully with DTC
by taking appropriate action to make available one or more separate certificates
evidencing Securities to any DTC Participant ("Participant") having Securities
credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full benefits
of ownership of such Securities.
--------------------------
(1)A "Legally Restricted Security" is a security that is a restricted
security, as defined in Rule 144(a)(3). A "Contractually Restricted Security" is
a security that upon issuance and continually thereafter can only be sold
pursuant to Regulation S under the Securities Act, Rule 144A, Rule 144, or in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4 of the Securities Act and not involving any public
offering;provided, however,that once the security is sold pursuant to the
provisions of Rule 144, including Rule 144(k), it will thereby cease to be a
"Contractually Restricted Security." For purposes of this definition, in order
for a depositary receipt to be considered a "Legally or Contractually Restricted
Security," the underlying security must also be a "Legally or Contractually
Restricted Security."
<PAGE> 345
Without limiting the generality of the preceding sentence, Issuer and Agent
acknowledge that DTC shall treat any Participant having Securities credited to
its DTC accounts as entitled to receive distributions (and voting rights, if
any) in respect of the Securities, and to receive from DTC certificates
evidencing Securities. Issuer and Agent recognize that DTC does not in any way
undertake to, and shall not have any responsibility to, monitor or ascertain the
compliance of any transactions in the Securities with any of the provisions: (a)
of Rule 144A; (b) of other exemptions from registration under the Securities Act
or any other state or federal securities laws; or (c) of the offering documents.
-2-
<PAGE> 346
EXHIBIT C-2
FORM OF ARTESIA BANKING CORPORATION COMFORT LETTER
RELATING TO THE AMCC MORTGAGE LOAN PURCHASE AGREEMENT
[See Attached Comfort Letter]
<PAGE> 347
LETTERHEAD OF ARTESIA BANKING CORPORATION N.V./S.A.
As of December 12, 2000
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street, 11th Floor
New York, New York 10013
Wells Fargo Bank Minnesota, N.A.
45 Broadway, 12th Floor
New York, New York 10006
Ladies and Gentlemen:
In connection with the issue, offer and sale of the Salomon Brothers
Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-C3 (the "Certificates"), in which Artesia Mortgage Capital
Corporation ("AMCC") is involved in its capacity as a mortgage loan seller, and
for which the closing date is scheduled on or about December 19, 2000, AMCC and
Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII") will enter into a
Mortgage Loan Purchase Agreement dated as of December 12, 2000 (the
"Agreement"). Capitalized terms not defined herein shall have the respective
meanings ascribed thereto in the Agreement.
Taking into account the capital links between Artesia Banking
Corporation N.V./S.A. ("Artesia BC") and AMCC, which is a 100% affiliate of
Artesia BC, and taking into account the interest of Artesia BC in the issue,
offer and sale of the Certificates and the securitization market, Artesia BC
irrevocably agrees for the benefit of SBMS VII, the trustee under the pooling
and servicing agreement pursuant to which the Certificates were issued and the
registered holders and beneficial owners of the Certificates (collectively, the
"Beneficiaries"), to do any and all things and take any and all actions which
may be necessary or appropriate to enable AMCC to execute and perform all of its
obligations pursuant to the Agreement (collectively, the "Obligations"),
including, without limitation, making all of the representations and warranties
on behalf of AMCC and supporting any financial consequences incurred by any of
the liability provisions of the Agreement. Without limiting the foregoing, in
the event that AMCC encounters any difficulties of a human, technical or
financial nature that may endanger its execution and performance of the
Obligations, Artesia BC shall provide any and all human resources, technical
assistance and financial intervention that may be necessary or appropriate to
ensure the execution and performance of the Obligations.
Subject to the following sentence, Artesia BC shall keep in full effect
its existence, rights and franchises as a corporation, bank, trust company,
partnership, limited liability company, association or other legal entity under
the laws of the jurisdiction wherein it was organized, and shall obtain and
preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this letter agreement and to perform its
respective duties under this letter agreement. Artesia BC may, however, be
merged or consolidated with or into any Person, or
C-2-1
<PAGE> 348
transfer all or substantially all of its assets to any Person, in which case,
any Person resulting from any merger or consolidation to which Artesia BC shall
be a party, or any Person succeeding to the business of Artesia BC, shall be the
successor of Artesia BC hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
Furthermore and subject to the following sentence, Artesia BC shall
cause AMCC to keep in full effect its existence, rights and franchises as a
corporation, bank, trust company, partnership, limited liability company,
association or other legal entity under the laws of the jurisdiction wherein it
was organized, with a net worth of at least $15,000,000 (U.S.), and shall cause
AMCC to obtain and preserve its qualification to do business as a foreign entity
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Agreement and to execute and
perform the Obligations. AMCC may, however, be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets to any
Person, in which case, Artesia BC shall cause any Person resulting from any
merger or consolidation to which AMCC shall be a party, or any Person succeeding
to the business of AMCC, to assume the Obligations in writing and to be the
successor of AMCC under the Agreement in all respects.
Upon the occurrence of any of the following events, Artesia BC shall
become directly and primarily liable for the Obligations:
1. A failure on the part of Artesia BC to perform its obligations
under this letter agreement, which failure continues
unremedied for ten days following notice by any Beneficiary to
Artesia BC of such failure; or
2. A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary cause under any present or future federal, state
or foreign bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against AMCC and such decree
or order shall have remained in force undischarged,
undismissed or unstayed for a period of 60 days; or
3. AMCC shall consent to the appointment of a conservator,
receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating
to it or of or relating to all or substantially all of its
property; or
4. AMCC shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of
its creditors, voluntarily suspend payment of its obligations,
or take any corporate action in furtherance of the foregoing.
C-2-2
<PAGE> 349
No delay on the part of any Beneficiary in the exercise of any right or
remedy arising under this letter agreement, the Agreement or otherwise with
respect to all or any part of the Obligations or any other guaranty of or
security for all or any part of the Obligations shall operate as a waiver
thereof, and no single or partial exercise by any Beneficiary of any such right
or remedy shall preclude any further exercise thereof. No modification or waiver
of any of the provisions of this letter agreement or the Agreement shall be
binding upon any Beneficiary, except as expressly set forth in a writing duly
signed and delivered by such Beneficiary. Failure by any Beneficiary at any time
or times hereafter to require strict performance by AMCC, any other guarantor of
all or any part of the Obligations or any other person or entity of any of the
provisions, warranties, terms and conditions contained in the Agreement now or
at any time or times hereafter executed by such persons or entities and
delivered to any Beneficiary shall not waive, affect or diminish any right of
any Beneficiary at any time or times hereafter to demand strict performance
thereof or of this letter agreement, and such right shall not be deemed to have
been waived by any act or knowledge of any Beneficiary, or any Beneficiary's
respective agents, officers or employees, unless such waiver is contained in an
instrument in writing, directed and delivered to AMCC or Artesia BC, as
applicable, specifying such waiver, and is signed by the Beneficiary against
which enforcement is sought.
To the maximum extent permitted by law, Artesia BC hereby waives any
and all defenses to its obligations hereunder that would be available to a
surety.
THIS LETTER AGREEMENT SHALL BE CONSTRUED AND ENFORCED AND THE RIGHTS
AND DUTIES OF THE PARTIES SHALL BE GOVERNED IN ALL RESPECTS IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
ARTESIA BC IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION
OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THIS LETTER
AGREEMENT OR THE AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND ARTESIA BC
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. ARTESIA BC AGREES THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. ARTESIA BC WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
ARTESIA BC AGREES THAT THE BENEFICIARIES SHALL HAVE THE RIGHT TO
PROCEED AGAINST IT OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE THE
BENEFICIARIES TO ENFORCE A JUDGMENT OR OTHER
C-2-3
<PAGE> 350
COURT ORDER ENTERED IN FAVOR OF A BENEFICIARY. ARTESIA BC WAIVES ANY OBJECTION
THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH A BENEFICIARY MAY
COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
ARTESIA BC IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT C/O AMCC, AT
1180 NORTHWEST MAPLE STREET, SUITE 202, ISSAQUAH, WASHINGTON 98027, ATTENTION:
GUY COOLS, SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH MAILING.
ARTESIA BC IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS LETTER AGREEMENT OR THE AGREEMENT IN
ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF A
BENEFICIARY TO BRING PROCEEDINGS AGAINST ARTESIA BC IN THE COURTS OF ANOTHER
JURISDICTION.
ARTESIA BC WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS
LETTER AGREEMENT OR THE AGREEMENT. ANY BENEFICIARY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS LETTER AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF ARTESIA BC TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY.
Any notice, demand, request or other communication required or desired
to be served, given or delivered hereunder shall be in writing and shall be
served, given and delivered to Artesia Banking Corporation N.V./S.A., at
WTC-Tower 1, Boulevard du Ro: Albert II, 30 Bte 2, 1000 Brussels, Attention:
Christel Jennes, Head of Legal Risk.
Wherever possible, each provision of this letter agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this letter agreement shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this letter agreement.
Subject to the following paragraph, this letter will remain in full
force and effect and may not be terminated or otherwise revoked until the full
and final repayment of all of the Certificates outstanding.
If Artesia BC sells the majority of shares in AMCC, Artesia BC may be
relieved of its obligations under this letter upon the satisfaction of all of
the following conditions:
C-2-4
<PAGE> 351
1. the purchaser of those shares or another entity is willing to perform,
and assumes in writing, the obligations of Artesia BC under this letter
agreement;
2. the entity that is to assume the obligations of Artesia BC under this
letter agreement has a senior unsecured debt rating of no less than
"A2" from Moody's Investors Service, Inc. ("Moody's") and "A+" from
Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc.; and
3. Moody's and S&P have confirmed in writing that the substitution of the
obligor hereunder will not result in the qualification, downgrade or
withdrawal of any rating assigned thereby to any Class of Certificates.
[SIGNATURE PAGE FOLLOWS]
C-2-5
<PAGE> 352
Very truly yours,
ARTESIA BANKING CORPORATION N.V./S.A.
By:_____________________________________
Name:
Title:
Acknowledged and agreed to as of the day of
December, 2000
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
By:_______________________________________
Name:
Title:
Acknowledged and agreed to as of the day of
December, 2000
WELLS FARGO BANK MINNESOTA, N.A.
As Trustee on behalf of itself and the Certificateholders
By:_______________________________________
Name:
Title:
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<PAGE> 353
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[date]
Wells Fargo Bank Minnesota, N.A.
1100 Broken Land Parkway
Columbia, Maryland 21044-3562
Attention: Corporate Trust Administration (CMBS)
Salomon Brothers Mortgage Securities VII, Inc., Series 2000-C3
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-C3
In connection with the administration of the Mortgage Files held by you
as custodian (in such capacity, the "Custodian") on behalf of the trustee under
a certain Pooling and Servicing Agreement, dated as of December 1, 2000 (the
"Pooling and Servicing Agreement"), among Salomon Brothers Mortgage Securities
VII, Inc. as depositor, the undersigned as master servicer (the "Master
Servicer"), Lennar Partners, Inc. as special servicer, Wells Fargo Bank
Minnesota, N.A. as trustee (the "Trustee") and you, LaSalle Bank National
Association, as Certificate Administrator and as Tax Administrator, the
undersigned as Master Servicer hereby requests a release of the Mortgage File
(or the portion thereof specified below) held by you with respect to the
following described Mortgage Loan for the reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
The undersigned hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be
credited to the Collection Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe)_____________________________________________
______________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in
accordance with the
D-1-1
<PAGE> 354
provisions of the Pooling and Servicing Agreement and will be
returned to you or your designee within ten days of our
receipt thereof, unless the Mortgage Loan has been paid in
full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
MIDLAND LOAN SERVICES, INC.
as Master Servicer
By:____________________________
Name:
Title:
D-1-2
<PAGE> 355
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[date]
Wells Fargo Bank Minnesota, N.A.
1100 Broken Land Parkway
Columbia, Maryland 21044-3562
Attention: Corporate Trust Administration (CMBS)
Salomon Brothers Mortgage Securities VII, Inc., Series2000-C3
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Pass-Through Certificates, Series 2000-C3
In connection with the administration of the Mortgage Files held by you
as custodian (the "Custodian") on behalf of the Trustee (as defined below) under
a certain Pooling and Servicing Agreement, dated as of December 1, 2000 (the
"Pooling and Servicing Agreement"), among Salomon Brothers Mortgage Securities
VII, Inc. as depositor, Midland Loan Services, Inc. as master servicer, the
undersigned as special servicer ( "Special Servicer"), Wells Fargo Bank
Minnesota, N.A., as trustee (the "Trustee") and you, LaSalle Bank National
Association, as Certificate Administrator and as Tax Administrator, the
undersigned as Special Servicer hereby requests a release of the Mortgage File
(or the portion thereof specified below) held by you as Custodian on behalf of
the Trustee with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe) _______________________________________________
_________________________________________________________________
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our
D-2-1
<PAGE> 356
receipt thereof, unless the Mortgage Loan is being foreclosed, in which case the
Mortgage File (or such portion thereof) will be returned when no longer required
by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
LENNAR PARTNERS, INC.
as Special Servicer
By:_______________________________
Name:
Title:
D-2-2
<PAGE> 357
EXHIBIT E
FORM OF DISTRIBUTION DATE STATEMENT
[See Attached]
<PAGE> 358
ABN AMRO Statement Date:
LaSalle Bank N.A. Payment Date:
135 S. LaSalle Street Suite 1625 Prior Payment:
Chicago, IL 60603 Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
Administrator: Analyst:
REPORTING PACKAGE TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page(s)
-------
<S> <C> <C> <C>
Issue Id: REMIC Certificate Report Closing Date:
ASAP #: Bond Interest Reconciliation First Payment Date:
Monthly Data File Name: Cash Reconciliation Summary Assumed Final Payment Date:
15 Month Historical Loan Status Summary
15 Month Historical Payoff/Loss Summary
Historical Collateral Level Prepayment Report
Delinquent Loan Detail
Mortgage Loan Characteristics
Loan Level Detail
Specially Serviced Report
Modified Loan Detail
Realized Loss Detail
Appraisal Reduction Detail
</TABLE>
CONTACT INFORMATION
================================================================================
Issuer:
Depositor:
Underwriter:
Master Servicer:
Special Servicer:
Rating Agency:
================================================================================
INFORMATION IS AVAILABLE FOR THIS ISSUE FROM THE FOLLOWING SOURCES
================================================================================
<TABLE>
<S> <C>
LaSalle Web Site www.lnbabs.com
LaSalle Bulletin Board (714) 282-3990
LaSalle "ASAP" Fax Back System (714) 282-5518
LaSalle Factor Line (800) 246-5761
================================================================================
</TABLE>
11/29/2000 -- 07:40 (MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 359
ABN AMRO Statement Date:
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
<TABLE>
<CAPTION>
ORIGINAL OPENING PRINCIPAL PRINCIPAL NEGATIVE CLOSING INTEREST INTEREST PASS-THROUGH
CLASS FACE VALUE(1) BALANCE PAYMENT ADJ. OR LOSS AMORTIZATION BALANCE PAYMENT ADJUSTMENT RATE(2)
CUSIP Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Next Rate(3)
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
===================================================================================================================================
TOTAL P&I PAYMENT 0.00
===================================================================================================================================
</TABLE>
Notes: (1) N denotes notional balance not included in total
(2) Interest Paid minus Interest Adjustment minus Deferred Interest
equals Accrual
(3) Estimated
11/29/2000 -- 07:40 (MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 360
ABN AMRO Statement Date:
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
BOND INTEREST RECONCILIATION
<TABLE>
<CAPTION>
Deductions Additions
---------------------------------------------- -------------------------------------
Accrued Add. Deferred & Prior Prepay- Other
Accrual Certificate Allocable Trust Accretion Interest Int. Short- ment Interest
-------------
Class Method Days Interest PPIS Expense(1) Interest Losses falls Due Penalties Proceeds(2)
==============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
============================================================================================================================
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
============================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Remaining
Distributable Interest Outstanding Credit Support
Certificate Payment Interest ---------------------
Interest Amount Shortfalls Original Current(3)
==============================================================
<S> <C> <C> <C> <C>
==============================================================
0.00 0.00 0.00
==============================================================
</TABLE>
(1) Additional Trust Expenses are fees allocated directly to the bond resulting
in a deduction to accrued interest and not carried as an outstanding
shortfall.
(2) Other Interest Proceeds include default interest, PPIE and Recoveries of
Interest.
(3) Determined as follows: (A) the ending balance of all the classes less (B)
the sum of (i) the ending balance of the class and (ii) the ending balance
of all classes which are not subordinate to the class divided by (A).
11/29/2000 -- 07:40 (MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 361
ABN AMRO Statement Date:
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
CASH RECONCILIATION SUMMARY
INTEREST SUMMARY
================================
<TABLE>
<CAPTION>
<S> <C>
Current Scheduled Interest
Less Deferred Interest
Plus Advance Interest
Plus Unscheduled Interest
PPIS Reducing Scheduled Interest
Less Total Fees Paid To Servicer
Plus Fees Advanced for PPIS
Less Fee Strips Paid by Servicer
Less Misc. Fees & Expenses
Less Non Recoverable Advances
--------------------------------
Interest Due Trust
--------------------------------
Less Trustee Fee
Less Fee Strips Paid by Trust
Less Misc. Fees Paid by Trust
--------------------------------
Remittance Interest
--------------------------------
</TABLE>
SERVICING FEE SUMMARY
===============================
<TABLE>
<CAPTION>
<S> <C>
Current Servicing Fees
Plus Fees Advanced for PPIS
Less Reduction for PPIS
Plus Unscheduled Servicing Fees
-------------------------------
Total Servicing Fees Paid
-------------------------------
</TABLE>
PPIS SUMMARY
================================
<TABLE>
<CAPTION>
<S> <C>
Gross PPIS
Reduced by PPIE
Reduced by Shortfalls in Fees
Reduced by Other Amounts
--------------------------------
PPIS Reducing Scheduled Interest
--------------------------------
PPIS Reducing Servicing Fee
--------------------------------
PPIS Due Certificate
--------------------------------
</TABLE>
PRINCIPAL SUMMARY
==================================
<TABLE>
<CAPTION>
<S> <C>
SCHEDULED PRINCIPAL:
----------------------------------
Current Scheduled Principal
Advanced Scheduled Principal
----------------------------------
Scheduled Principal Distribution
----------------------------------
UNSCHEDULED PRINCIPAL:
----------------------------------
Curtailments
Prepayments in Full
Liquidation Proceeds
Repurchase Proceeds
Other Principal Proceeds
----------------------------------
Unscheduled Principal Distribution
----------------------------------
Remittance Principal
----------------------------------
----------------------------------
Servicer Wire Amount
----------------------------------
</TABLE>
POOL BALANCE SUMMARY
============================================================
<TABLE>
<CAPTION>
Balance Count
============================================================
<S> <C> <C>
Beginning Pool
Scheduled Principal Distribution
Unscheduled Principal Distribution
Deferred Interest
Liquidations
Repurchases
Ending Pool
============================================================
</TABLE>
<TABLE>
<CAPTION>
ADVANCES
----------------------------------------------------------------------------------------------------------
PRIOR OUTSTANDING CURRENT PERIOD RECOVERED ENDING OUTSTANDING
Principal Interest Principal Interest Principal Interest Principal Interest
==========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------
</TABLE>
11/29/20 - 07:40 (MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 362
ABN AMRO Statement Date:
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
ASSET BACKED FACTS ~15 MONTH HISTORICAL LOAN STATUS SUMMARY
<TABLE>
<CAPTION>
Delinquency Aging Categories
------------------------------------------------------------------------------------------------------
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO
------------------------------------------------------------------------------------------------------
Date # Balance # Balance # Balance # Balance # Balance
============ ======================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
============ ======================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Special Event Categories (1)
---------------------------------------------------------------
Modifications Specially Serviced Bankruptcy
---------------------------------------------------------------
# Balance # Balance # Balance
===============================================================
<S> <C> <C> <C> <C> <C>
===============================================================
</TABLE>
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in
the Appropriate Delinquency Aging Category
11/29/2000 -- 07:40 (MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 363
ABN AMRO Statement Date:
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
ASSET BACKED FACTS ~15 MONTH HISTORICAL PAYOFF/LOSS SUMMARY
<TABLE>
<CAPTION>
Distribution Ending Pool (1) Payoffs (2) Penalties Appraisal Reduct.(2) Liquidations (2) Realized Losses (2)
---------------------------------------------------------------------------------------------------------------------
Date # Balance # Balance # Amount # Balance # Balance # Amount
============ =====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
============ =====================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Remaining Term Curr Weighted Avg.
--------------------------------------
Life Amort. Coupon Remit
======================================
<S> <C> <C> <C>
======================================
</TABLE>
(1) Percentage based on pool as of cutoff.
(2) Percentage based on pool as of beginning of period.
11/29/2000 -- 07:40 (MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 364
ABN AMRO Statement Date:
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
HISTORICAL COLLATERAL LEVEL PREPAYMENT REPORT
<TABLE>
<CAPTION>
Disclosure Distribution Initial Payoff Penalty Prepayment Maturity Property
Control # Date Balance Code Amount Amount Date Date Type State
========================== ======================================== ====================== =========================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
========================== ======================================== ====================== =========================
CUMULATIVE 0 0
====================
</TABLE>
<TABLE>
<CAPTION>
Remaining Term Note
---------------
DSCR Life Amort. Rate
=========================================
<S> <C> <C> <C>
=========================================
</TABLE>
11/29/2000 -- 07:40 (MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 365
ABN AMRO Statement Date:
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
DELINQUENT LOAN DETAIL
<TABLE>
<CAPTION>
Paid Outstanding Out. Property Special
Disclosure Doc Thru Current P&I P&I Protection Advance Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Description (1) Transfer Date Date Date Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
</TABLE>
A. P&I Advance - Loan in Grace Period
B. P&I Advance - Late Payment but < one month delinq
1. P&I Advance - Loan delinquent 1 month
2. P&I Advance - Loan delinquent 2 months
3. P&I Advance - Loan delinquent 3 months or More
4. Matured Balloon/Assumed Scheduled Payment
================================================================================
** Outstanding P&I Advances include the current period P&I Advance
11/29/2000 - 7:40 (MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 366
ABN AMRO Statement Date:
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PRINCIPAL BALANCES
<TABLE>
<CAPTION>
=====================================================================================
Current Scheduled # of Scheduled % of Weighted Average
-----------------------
Balances Loans Balance Balance Term Coupon DSCR
=====================================================================================
<S> <C> <C> <C> <C> <C> <C>
=====================================================================================
0 0 0.00%
=====================================================================================
</TABLE>
Average Scheduled Balance
Maximum Scheduled Balance
Minimum Scheduled Balance
DISTRIBUTION OF REMAINING TERM (FULLY AMORTIZING)
<TABLE>
<CAPTION>
==================================================================================
Fully Amortizing # of Scheduled % of Weighted Average
----------------------
Mortgage Loans Loans Balance Balance Term Coupon DSCR
==================================================================================
<S> <C> <C> <C> <C> <C> <C>
==================================================================================
0 0 0.00%
==================================================================================
</TABLE>
Minimum Remaining Term
Maximum Remaining Term
DISTRIBUTION OF MORTGAGE INTEREST RATES
<TABLE>
<CAPTION>
==========================================================================================
Current Mortgage # of Scheduled % of Weighted Average
-------------------------
Interest Rate Loans Balance Balance Term Coupon DSCR
==========================================================================================
<S> <C> <C> <C> <C> <C> <C>
==========================================================================================
0 0 0.00%
==========================================================================================
</TABLE>
Minimum Mortgage Interest Rate 10.0000%
Maximum Mortgage Interest Rate 10.0000%
DISTRIBUTION OF REMAINING TERM (BALLOON)
<TABLE>
<CAPTION>
==========================================================================================================
Balloon # of Scheduled % of Weighted Average
--------------------------
Mortgage Loans Loans Balance Balance Term Coupon DSCR
==========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
0 to 60
61 to 120
121 to 180
181 to 240
241 to 360
==========================================================================================================
0 0 0.00%
==========================================================================================================
</TABLE>
Minimum Remaining Term 0
Maximum Remaining Term 0
11/29/2000 -- 07:40 (MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 367
ABN AMRO Statement Date:
LaSalle Bank N.A Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF DSCR (CURRENT)
<TABLE>
<CAPTION>
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
================================================================================
<S> <C> <C> <C> <C> <C> <C>
================================================================================
0 0 0.00%
================================================================================
</TABLE>
Maximum DSCR
Minimum DSCR
DISTRIBUTION OF DSCR (CUTOFF)
<TABLE>
<CAPTION>
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
================================================================================
<S> <C> <C> <C> <C> <C> <C>
================================================================================
0 0 0.00%
================================================================================
</TABLE>
Maximum DSCR 0.90
Minimum DSCR 0.90
GEOGRAPHIC DISTRIBUTION
<TABLE>
<CAPTION>
# of Scheduled % of
State Loans Balance Balance WAMM WAC DSCR
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
===============================================================================
0 0.00%
===============================================================================
</TABLE>
11/29/2000 - 07:40 (MXXX-MXXX) (c) 2000 LaSalle Bank N.A.
<PAGE> 368
ABN AMRO Statement Date:
LaSalle Bank N.A.
Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PROPERTY TYPES
<TABLE>
<CAPTION>
# of Scheduled % of
Property Types Loans Balance Balance WAMM WAC DSCR
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
===============================================================================
0 0 0.00%
===============================================================================
</TABLE>
DISTRIBUTION OF AMORTIZATION TYPE
<TABLE>
<CAPTION>
Current Scheduled # of Scheduled % of
Balances Loans Balance Balance WAMM WAC DSCR
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
DISTRIBUTION OF LOAN SEASONING
<TABLE>
<CAPTION>
# of Scheduled % of
Number of Years Loans Balance Balance WAMM WAC DSCR
===============================================================================
<S> <C> <C> <C> <C> <C>
===============================================================================
0 0 0.00%
===============================================================================
</TABLE>
DISTRIBUTION OF YEAR LOANS MATURING
<TABLE>
<CAPTION>
# of Scheduled % of
Year Loans Balance Balance WAMM WAC DSCR
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009 & Longer
===============================================================================
0 0 0.00%
===============================================================================
</TABLE>
11/29/2000-07:40 (MXXX-MXXX) (c) 2000 LaSalle Bank N.A.
<PAGE> 369
ABN AMRO Statement Date:
LaSalle Bank N.A.
Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
LOAN LEVEL DETAIL
<TABLE>
<CAPTION>
Operating Ending
Disclosure Property Statement Maturity Principal
Control # Grp Type State DSCR NOI Date Date Balance
============================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
============================================================================
W/Avg 0.00 0 0
============================================================================
</TABLE>
<TABLE>
<CAPTION>
Spec. Loan
Note Scheduled Mod. Serv ASER Status Prepayment
Rate P&I Flag Flag Flag Code(1) Amount Penalty Date
==============================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
==============================================================================
0 0 0
==============================================================================
</TABLE>
* NOI and DSCR, if available and reportable under the terms of the Pooling
and Servicing Agreement, are based on information obtained from the related
borrower, and no other party to the agreement shall be held liable for the
accuracy or methodology used to determine such figures.
(1) Legend:
A. P&I Adv - in Grace Period 1. P&I Adv - delinquent 1 month
B. P&I Adv - < one month delinq 2. P&I Adv - delinquent 2 months
3. P&I Adv - delinquent 3+ months 5. Prepaid in Full
4. Mat. Balloon/Assumed P&I 6. Specially Serviced
7. Foreclosure 9. REO
8. Bankruptcy
10. DPO
11. Modification
11/29/2000 - 07:40 (MXXX-MXXX) (c) 2000 LaSalle Bank N.A.
<PAGE> 370
ABN AMRO Statement Date:
LaSalle Bank N.A.
Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
SPECIALLY SERVICED (PART I) ~ LOAN DETAIL
<TABLE>
<CAPTION>
Balance Remaining Term
Disclosure Transfer ------------------ Note Maturity ----------------- Property NOI
Control # Date Scheduled Actual Rate Date Life Amort. Type State NOI DSCR Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
11/29/2000 - 07:40 (MXXX-MXXX) (c) 2000 LaSalle Bank N.A.
<PAGE> 371
ABN AMRO Statement Date:
LaSalle Bank N.A.
Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
SPECIALLY SERVICED LOAN DETAIL (PART II) ~ SERVICER COMMENTS
<TABLE>
<CAPTION>
Disclosure Resolution Comments
Control # Strategy
================================================================================
<S> <C> <C>
</TABLE>
11/29/2000 - 07:40 (MXXX-MXXX) (c) 2000 LaSalle Bank N.A.
<PAGE> 372
ABN AMRO Statement Date:
LaSalle Bank N.A.
Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
MODIFIED LOAN DETAIL
<TABLE>
<CAPTION>
Disclosure Modification Modification Modification
Control # Date Code Description
====================================================================================================================================
<S> <C> <C> <C>
====================================================================================================================================
</TABLE>
11/29/2000-07:40(MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 373
ABN AMRO Statement Date:
LaSalle Bank N.A.
Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
REALIZED LOSS DETAIL
<TABLE>
<CAPTION>
Beginning
Distribution Disclosure Appraisal Appraisal Scheduled
Period Control # Date Value Balance
===============================================================================
<S> <C> <C> <C> <C>
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
CURRENT TOTAL 0.00
CUMULATIVE 0.00
===============================================================================
</TABLE>
<TABLE>
<CAPTION>
Gross Proceeds Aggregate Net Net Proceeds
Gross as a % of Liquidation Liquidation as a % of Realized
Proceeds Sched Principal Expenses * Proceeds Sched. Balance Loss
=========================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------------------------
CURRENT TOTAL 0.00 0.00 0.00 0.00
CUMULATIVE 0.00 0.00 0.00 0.00
=========================================================================================================================
</TABLE>
*Aggregate liquidation expenses also include outstanding P&I advances
and unpaid servicing fees, unpaid trustee fees, etc.
11/29/2000-07:40(MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 374
ABN AMRO Statement Date:
LaSalle Bank N.A.
Payment Date:
Prior Payment:
Next Payment:
Record Date:
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MIDLAND LOAN SERVICES, INC., AS MASTER SERVICER
LENNAR PARTNERS, INC., AS SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-C3
ABN AMRO ACCT: XX-XXXX-XX-X
APPRAISAL REDUCTION DETAIL
<TABLE>
<CAPTION>
Disclosure Appraisal Scheduled Reduction Note Maturity
Control # Red. Date Balance Amount Rate Date
===================================================================================
<S> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Remaining Term Property Appraisal
Life Amort. Type State DSCR Value Date
===================================================================================
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
11/29/2000-07:40(MXXX-MXXX) (C) 2000 LaSalle Bank N.A.
<PAGE> 375
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[date]
LaSalle Bank National Association
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group
Salomon Brothers Mortgage Securities VII, Inc., Series 2000-C3
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C3, Class ____
Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 19, 2000
(the "Closing Date") of $__________] [evidencing a %
Percentage Interest in the related Class]
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of December 1, 2000, among Salomon Brothers Mortgage
Securities VII, Inc. as Depositor, Midland Loan Services, Inc. as Master
Servicer, Lennar Partners, Inc. as Special Servicer, Wells Fargo Bank Minnesota,
N.A. as Trustee and LaSalle Bank National Association as Certificate
Administrator and as Tax Administrator. All capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all claims
and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
F-1A-1
<PAGE> 376
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), or would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act (a "Qualified Institutional Buyer") purchasing for its own account or for
the account of another person that is itself a Qualified Institutional Buyer. In
determining whether the Transferee is a Qualified Institutional Buyer, the
Transferor and any person acting on behalf of the Transferor in this matter has
relied upon the following method(s) of establishing the Transferee's ownership
and discretionary investments of securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a
date within 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. purchaser and
within 18 months preceding such date of sale in the case of a
foreign purchaser; or
___ (b) The most recent publicly available information appearing
in documents filed by the Transferee with the Securities and
Exchange Commission or another United States federal, state,
or local governmental agency or self-regulatory organization,
or with a foreign governmental agency or self-regulatory
organization, which information is as of a date within 16
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18
months preceding such date of sale in the case of a foreign
purchaser; or
___ (c) The most recent publicly available information appearing
in a recognized securities manual, which information is as of
a date within 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. purchaser and
within 18 months preceding such date of sale in the case of a
foreign purchaser; or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer
of the Transferee, specifying the amount of securities owned
and invested on a discretionary basis by the Transferee as of
a specific date on or since the close of the Transferee's most
recent fiscal year, or, in the case of a Transferee that is a
member of a "family of investment companies", as that term is
defined in Rule 144A, a certification by an executive officer
of the investment adviser specifying the amount of securities
owned by the "family of investment companies" as of a specific
date on or since the close of the Transferee's most recent
fiscal year.
___ (e) Other. (Please specify brief description of method)
F-1A-2
<PAGE> 377
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with such entity; securities
that are part of an unsold allotment to or subscription by such entity,
if such entity is a dealer; securities of issuers that are part of such
entity's "family of investment companies", if such entity is a
registered investment company; bank deposit notes and certificates of
deposit; loan participations; repurchase agreements; securities owned
but subject to a repurchase agreement; and currency, interest rate and
commodity swaps;
(b) the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings in
its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has
been published, in which case the securities may be valued at market;
and
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be
included if the investments of such subsidiaries are managed under the
direction of the entity, except that, unless the entity is a reporting
company under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, securities owned by such subsidiaries may not be
included if the entity itself is a majority-owned subsidiary that would
be included in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken reasonable
steps to ensure that the Transferee is aware that the Transferor is relying on
the exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A.
6. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement, and (e) all related matters, that the Transferee has
requested.
Very truly yours,
(Transferor)
By:____________________________
Name:
Title:
F-1A-3
<PAGE> 378
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[date]
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group
Salomon Brothers Mortgage Securities VII, Inc., Series 2000-C3
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C3, Class ____
Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 19, 2000
(the "Closing Date") of $__________] [evidencing a %
Percentage Interest in the related Class]
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates, (the "Transferred Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of December 1, 2000, among Salomon Brothers Mortgage
Securities VII, Inc. as Depositor, Midland Loan Services, Inc. as Master
Servicer, Lennar Partners, Inc. as Special Servicer, Wells Fargo Bank Minnesota,
N.A. as Trustee and LaSalle Bank National Association as Certificate
Administrator and as Tax Administrator. All capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all claims
and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security by means of general
advertising or in any
F-1B-1
<PAGE> 379
other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a) through
(e) hereof) would constitute a distribution of the Transferred Certificates
under the Securities Act of 1933, as amended (the "Securities Act"), would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities laws, or would require
registration or qualification of the Transferred Certificates pursuant to the
Securities Act or any state securities laws.
Very truly yours,
(Transferor)
By:____________________________
Name:
Title:
F-1B-2
<PAGE> 380
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[date]
LaSalle Bank National Association
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group
Salomon Brothers Mortgage Securities VII, Inc., Series 2000-C3
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C3, Class ____
Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 19, 2000
(the "Closing Date") of $__________] [evidencing a %
Percentage Interest in the related Class]
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of December 1, 2000, among Salomon Brothers Mortgage
Securities VII, Inc. as Depositor, Midland Loan Services, Inc. as Master
Servicer, Lennar Partners, Inc. as Special Servicer, Wells Fargo Bank Minnesota,
N.A. as Trustee and LaSalle Bank National Association as Certificate
Administrator and as Tax Administrator. All capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in reliance
on Rule 144A. The Transferee is acquiring the Transferred Certificates for its
own account or for the account of another Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of
another Qualified Institutional Buyer and to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
F-2A-1
<PAGE> 381
2. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, and (e) all
related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
(Transferee)
By:____________________________
Name:
Title:
F-2A-2
<PAGE> 382
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
(Nominee)
By:____________________________
Name:
Title:
F-2A-3
<PAGE> 383
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and LaSalle Bank National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificates being
transferred (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $_____________________(1) in securities
(other than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar
________
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2A-4
<PAGE> 384
institution, which is supervised and examined by a state or
federal authority having supervision over any such
institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as
of a date not more than 16 months preceding the date of sale
of the Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months preceding
such date of sale in the case of a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost
F-2A-5
<PAGE> 385
of those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of such Person, but only if such
subsidiaries are consolidated with such Person in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under such Person's direction.
However, such securities were not included if such Person is a majority-owned,
consolidated subsidiary of another enterprise and such Person is not itself a
reporting company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
_______________________________
Print Name of Transferee
By:____________________________
Name:
Title:
Date:
F-2A-6
<PAGE> 386
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and LaSalle Bank National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
F-2A-7
<PAGE> 387
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
F-2A-8
<PAGE> 388
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
Print Name of Transferee or Adviser
By:______________________________________
Name:
Title:
IF AN ADVISER:
Print Name of Transferee ________________
Date: ___________________________________
F-2A-9
<PAGE> 389
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[date]
LaSalle Bank National Association
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group
Salomon Brothers Mortgage Securities VII, Inc., Series 2000-C3
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C3, Class ____
Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 19, 2000
(the "Closing Date") of $__________] [evidencing a %
Percentage Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of December 1, 2000, among
Salomon Brothers Mortgage Securities VII, Inc. as Depositor, Midland Loan
Services, Inc. as Master Servicer, Lennar Partners, Inc. as Special Servicer,
Wells Fargo Bank Minnesota, N.A. as Trustee and LaSalle Bank National
Association as Certificate Administrator and as Tax Administrator. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee, the Certificate Administrator or Certificate Registrar is obligated
so to register or qualify the Transferred Certificates, and (c) neither the
Transferred Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) sold or transferred in
F-2B-1
<PAGE> 390
a transaction which is exempt from such registration and qualification and the
Certificate Registrar has received (A) a certificate from the prospective
transferor substantially in the form attached as Exhibit F-1A to the Pooling and
Servicing Agreement; (B) a certificate from the prospective transferor
substantially in the form attached as Exhibit F-1B to the Pooling and Servicing
Agreement and a certificate from the prospective transferee substantially in the
form attached either as Exhibit F-2A or as Exhibit F-2B to the Pooling and
Servicing Agreement; or (C) an Opinion of Counsel satisfactory to the
Certificate Registrar that the transfer may be made without registration under
the Securities Act, together with the written certification(s) as to the facts
surrounding the transfer from the prospective transferor and/or prospective
transferee upon which such Opinion of Counsel is based.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates, any security issued in exchange therefor
or in lieu thereof or any interest in the foregoing except in compliance with
the provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN
A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND
WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT
BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT
OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS
CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO
(1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED
INVESTOR WITHIN THE MEANING OF PARAGRAPH (1),
F-2B-2
<PAGE> 391
(2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER THE SECURITIES ACT OR
AN ENTITY IN WHICH ALL THE EQUITY OWNERS CONSTITUTE ENTITIES DESCRIBED IN
SUCH PARAGRAPHS.]
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto and (e) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
(Transferee)
By:____________________________
Name:
Title:
Date:
F-2B-3
<PAGE> 392
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
(Nominee)
By:____________________________
Name:
Title:
F-2B-4
<PAGE> 393
EXHIBIT F-2C
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN CLASS X OR CLASS G CERTIFICATES
WHILE HELD IN BOOK-ENTRY FORM
[Date]
[TRANSFEROR]
Re: Salomon Brothers Mortgage Securities VII, Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-C3, Class
[X][G]
Ladies and Gentlemen:
This letter is delivered to you in connection with the
Transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in Class
[X][G] Certificates having an initial [Certificate Notional Amount][Certificate
Principal Balance] as of December 19, 2000 (the "Closing Date") of $__________
(the "Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2000 (the "Pooling and Servicing Agreement"), among Salomon
Brothers Mortgage Securities VII, Inc. as depositor (the "Depositor"), Midland
Loan Services, Inc. as master servicer, Lennar Partners, Inc. as special
servicer, Wells Fargo Bank Minnesota, N.A. as trustee (the "Trustee") and
LaSalle Bank National Association as Certificate Administrator and as Tax
Administrator. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to and agrees with you,
and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the Transfer to it of the Transferor's interest in the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring such interest in the Transferred Certificates
for its own account or for the account of a Qualified Institutional
Buyer.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (b) neither the Depositor nor the Trustee is obligated
so to register or qualify the Transferred Certificates, and (c) neither
the Transferred Certificates nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or
F-2C-1
<PAGE> 394
qualified pursuant any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Transferor desiring to effect such transfer has
received either (A) a certificate from the prospective transferee
substantially in the form attached either as Exhibit F-2C to the
Pooling and Servicing Agreement or as Exhibit F-2D to the Pooling and
Servicing Agreement or (B) an opinion of counsel satisfactory to the
Transferor to the effect that such transfer may be made without
registration under the Securities Act.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate, any security issued in
exchange therefor or in lieu thereof or any interest in the foregoing
except in compliance with the provisions of Section 5.02 of the Pooling
and Servicing Agreement, which provisions it has carefully reviewed,
and that each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE
MADE (A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
THAT IS SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF, ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. The Transferee has been furnished with all information
regarding (a) The Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement, and (e) all
related matters, that it has requested.
Very truly yours,
(Transferee)
By:
---------------------------------------
Name:
Title:
F-2C-2
<PAGE> 395
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and for the benefit of Salomon Brothers Mortgage
Securities VII, Inc. with respect to the mortgage pass-through certificates
being transferred in book-entry form (the "Transferred Certificates") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity acquiring interests in the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) [the Transferee] [each of the Transferee's equity owners]
owned and/or invested on a discretionary basis $______________________(2) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale for a foreign bank or equivalent
institution.
--------
(2) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2C-3
<PAGE> 396
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. savings and loan association, and not more
than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include (i) securities of issuers that are affiliated with
such Person, (ii) securities that are part of an unsold allotment to or
subscription by such Person, if such Person is a dealer, (iii) bank deposit
notes and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
F-2C-4
<PAGE> 397
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any such Person,
the Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the basis
of their market value, and no current information with respect to the cost of
those securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of such Person, but only if such
subsidiaries are consolidated with such Person in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under such Person's direction.
However, such securities were not included if such Person is a majority-owned,
consolidated subsidiary of another enterprise and such Person is not itself a
reporting company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the statements
made herein because one or more Transfers to the Transferee may be in reliance
on Rule 144A.
____ ____ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a third
party that is itself a "qualified institutional buyer" within the meaning of
Rule 144A, and the "qualified institutional buyer" status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's acquisition of any interest
in of the Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such acquisition. In addition, if the Transferee
is a bank or savings and loan as provided above, the Transferee agrees that it
will furnish to such parties any updated annual financial statements that become
available on or before the date of such acquisition, promptly after they become
available.
8. Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
(Transferee)
By:
-----------------------------------
Name:
Title:
Date:
F-2C-5
<PAGE> 398
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and for the benefit of Salomon Brothers Mortgage
Securities VII, Inc. with respect to the mortgage pass-through certificates
being transferred in book-entry form (the "Transferred Certificates") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity acquiring interests in the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because the Transferee is part of a Family of Investment Companies (as
defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
F-2C-6
<PAGE> 399
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein because one
or more Transfers to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be acquiring interests in
Yes No the Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a third
party that is itself a "qualified institutional buyer" within the meaning of
Rule 144A, and the "qualified institutional buyer" status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's acquisition of any interest in the
Transferred Certificates will constitute a reaffirmation of this certification
by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
(Transferee or Adviser)
By:
------------------------------------------
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
F-2C-7
<PAGE> 400
EXHIBIT F-2D
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN CLASS X OR CLASS G CERTIFICATES
WHILE HELD IN BOOK-ENTRY FORM
[Date]
[TRANSFEROR]
Re: Salomon Brothers Mortgage Securities VII, Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-C3, Class
[X][G]
Ladies and Gentlemen:
This letter is delivered to you in connection with the
Transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in Class
[X][G] Certificates having an initial [Certificate Notional Amount][Certificate
Principal Balance] as of December 19, 2000 (the "Closing Date") of $__________
(the "Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2000 (the "Pooling and Servicing Agreement"), among Salomon
Brothers Mortgage Securities VII, Inc. as depositor (the "Depositor"), Midland
Loan Services, Inc. as Master Servicer, Lennar Partners, Inc., as special
servicer, Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee") and
LaSalle Bank National Association as Certificate Administrator and as Tax
Administrator. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to and agrees with you,
and for the benefit of the Depositor, that:
1. The Transferee is acquiring the Transferor's beneficial
ownership interest in the Transferred Certificates for its own account for
investment and not with a view to or for sale or transfer in connection with any
distribution thereof, in whole or in part, in any manner which would violate the
Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the Securities Act
or registered or qualified under any applicable state securities laws, (b)
neither the Depositor nor the Trustee is obligated so to register or qualify the
Transferred Certificates, and (c) neither the Transferred Certificates nor any
security issued in exchange therefor or in lieu thereof may be resold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant any applicable state securities laws, or (ii)
is sold or transferred in transactions which are exempt from such registration
and qualification and the Transferor desiring to effect such transfer has
received either (A) a certificate from the prospective transferee substantially
in the form attached either as
F-2D-1
<PAGE> 401
Exhibit F-2C to the Pooling and Servicing Agreement or as Exhibit F-2D to the
Pooling and Servicing Agreement or (B) an opinion of counsel satisfactory to the
Transferor to the effect that such transfer may be made without registration
under the Securities Act.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that each Transferred
Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A)
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF, ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT,
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any interest in any Transferred Certificate or
any other similar security, which (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the disposition
of the Transferred Certificates a violation of Section 5 of the Securities Act
or any state securities law or would require registration or qualification of
the Transferred Certificates pursuant thereto. The Transferee will not act, nor
has it authorized or will it authorize any person
F-2D-2
<PAGE> 402
to act, in any manner set forth in the foregoing sentence with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (d) the nature, performance and servicing of the Mortgage
Loans, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificates; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
By:
-----------------------------------------
Name:
F-2D-3
<PAGE> 403
EXHIBIT F-3A
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHT
[Date]
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street
New York, New York 10013
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C3 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the Excess Servicing Fee Right established under the Pooling
and Servicing Agreement, dated as of December 1, 2000 (the "Pooling and
Servicing Agreement"), among Salomon Brothers Mortgage Securities VII, Inc., as
depositor (the "Depositor"), Midland Loan Services, Inc. as master servicer,
Lennar Partners, Inc. as special servicer, Wells Fargo Bank Minnesota, N.A. as
trustee and LaSalle Bank National Association as certificate administrator and
as tax administrator. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Depositor, that:
1. The Transferor is the lawful owner of the Excess Servicing
Rights, with the full right to transfer the Excess Servicing Fee Right
free from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of the
Excess Servicing Fee Right, any interest in the Excess Servicing Fee
Right 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 the Excess Servicing Fee Right, any interest in the
Excess Servicing Fee Right or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to the Excess Servicing Fee Right, any interest in the Excess
Servicing Fee Right or any other similar security with any person in
any manner, (d) made any general solicitation with respect to the
Excess Servicing Fee Right, any interest in the Excess Servicing Fee
Right or any other similar security by means of general advertising or
in any other manner, or (e) taken any other action, which (in the case
of any of the acts described in clauses (a) through (e) hereof) would
constitute a distribution of the Excess Servicing Fee Right under the
Securities Act of 1933, as amended (the "Securities Act"), or would
render the disposition of the Excess Servicing Fee Right a violation of
Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of the Excess Servicing Fee Right
pursuant to the Securities Act or any state securities laws.
F-3A-1
<PAGE> 404
Very truly yours,
-----------------------------------------
(Transferor)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
F-3A-2
<PAGE> 405
EXHIBIT F-3B
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHT
[Date]
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street
New York, New York 10013
Midland Loan Services, Inc.
210 West 10th Street, 6th Floor
Kansas City, Missouri 64105
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _______________________ (the "Transferor") to _____________________
_______________________________ (the "Transferee") of the Excess Servicing Fee
Right established pursuant to the Pooling and Servicing Agreement, dated as of
December 1, 2000 (the "Pooling and Servicing Agreement"), among Salomon Brothers
Mortgage Securities VII, Inc. as depositor (the "Depositor"), Midland Loan
Services, Inc. as master servicer (the "Master Servicer"), Lennar Partners, Inc.
as special servicer, Wells Fargo Bank Minnesota, N.A. as trustee and LaSalle
Bank National Association as certificate administrator and as tax administrator.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Depositor and
initial Master Servicer, respectively, that:
1. The Transferee is acquiring the Excess Servicing Fee Right
for its own account for investment and not with a view to or for sale or
transfer in connection with any distribution thereof, in whole or in part, in
any manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Excess Servicing
Fee Right has not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b) neither
the Depositor nor the Trustee is obligated so to register or qualify the Excess
Servicing Fee Right, and (c) the Excess Servicing Fee Right may not be resold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant any applicable state securities laws or (ii)
sold or transferred in transactions which are exempt from such registration and
F-3B-1
<PAGE> 406
qualification and (A) the Depositor has received a certificate from the
prospective transferor substantially in the form attached as Exhibit F-3A to the
Pooling and Servicing Agreement, and (B) the Master Servicer and the Depositor
have received a certificate from the prospective transferee substantially in the
form attached as Exhibit F-3B to the Pooling and Servicing Agreement.
3. The Transferee understands that it may not sell or
otherwise transfer the Excess Servicing Fee Right or any interest therein except
in compliance with the provisions of Section 3.11 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred the Excess
Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other
similar security to any person in any manner, (b) solicited any offer to buy or
accept a pledge, disposition or other transfer of the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to the Excess Servicing Fee Right, any interest in the Excess
Servicing Fee Right or any other similar security with any person in any manner,
(d) made any general solicitation with respect to the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security by means of general advertising or in any other manner, or (e) taken
any other action with respect to the Excess Servicing Fee Right, any interest in
the Excess Servicing Fee Right or any other similar security, which (in the case
of any of the acts described in clauses (a) through (e) above) would constitute
a distribution of the Excess Servicing Fee Right under the Securities Act, would
render the disposition of the Excess Servicing Fee Right a violation of Section
5 of the Securities Act or any state securities law or would require
registration or qualification of the Excess Servicing Fee Right pursuant
thereto. The Transferee will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to the Excess Servicing Fee Right, any interest in the Excess Servicing
Fee Right or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Excess Servicing Fee Right and payments
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (d) the nature, performance and servicing of the Mortgage
Loans, and (e) all related matters, that it has requested.
6. The Transferee is (a) a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act or (b) an "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the Securities Act or an entity in which all of the equity owners come
within such paragraphs. The Transferee has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Excess Servicing Fee Right; the Transferee has
sought such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision; and the Transferee is able to bear the
economic risks of such investment and can afford a complete loss of such
investment.
7. The Transferee agrees (i) to keep all information relating
to the Trust and the Trust Fund, and made available to it by the Master
Servicer, confidential, (ii) not to use or disclose such information in any
manner which could result in a violation of any provision of the Securities Act
or would require registration of the Excess Servicing Fee Right or any
Certificate pursuant to the Securities Act, and (iii) not to disclose such
information, and to cause its officers, directors, partners employees, agents or
representatives not to disclose such information, in any manner whatsoever, in
whole or in
F-3B-2
<PAGE> 407
part, to any other Person other than such holder's auditors, legal counsel and
regulators, except to the extent such disclosure is required by law, court order
or other legal requirement or to the extent such information is of public
knowledge at the time of disclosure by such holder or has become generally
available to the public other than as a result of disclosure by such holder;
provided, however, that such holder may provide all or any part of such
information to any other Person who is contemplating an acquisition of the
Excess Servicing Fee Right if, and only if, such Person (x) confirms in writing
such prospective acquisition and (y) agrees in writing to keep such information
confidential, not to use or disclose such information in any manner which could
result in a violation of any provision of the Securities Act or would require
registration of the Excess Servicing Fee Right or any Certificates pursuant to
the Securities Act and not to disclose such information, and to cause its
officers, directors, partners, employees, agents or representatives not to
disclose such information, in any manner whatsoever, in whole or in part, to any
other Person other than such Persons' auditors, legal counsel and regulators.
8. The Transferee acknowledges that the holder of the Excess
Servicing Fee Right shall not have any rights under the Pooling and Servicing
Agreement except as set forth in Section 3.11(a) of the Pooling and Servicing
Agreement, and that the Excess Servicing Fee Rate may be reduced to the extent
provided in the Pooling and Servicing Agreement.
Very truly yours,
---------------------------------------------
(Transferee)
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
F-3B-3
<PAGE> 408
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(DEFINITIVE NON-REGISTERED AND NON-INVESTMENT GRADE CERTIFICATES)
[date]
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group
Salomon Brothers Mortgage Securities VII, Inc., Series2000-C3
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series
2000-C3, Class ______ Certificates [having an initial
Certificate [Principal Balance] [Notional Amount] as
of December 19, 2000 (the "Closing Date") of
$________] [evidencing a % Percentage Interest in the
related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the captioned mortgage pass-through certificates (the
"Transferred Certificates") pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 2000, among Salomon Brothers Mortgage Securities VII, Inc. as
Depositor, Midland Loan Services, Inc. as Master Servicer, Lennar Partners,
Inc., as Special Servicer, Wells Fargo Bank Minnesota, N.A., as Trustee and
LaSalle Bank National Association as Certificate Administrator and as Tax
Administrator. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, as follows (check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan or other employee
benefit plan or arrangement, including an individual retirement account
or annuity, a Keogh plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
including an insurance company general account, that is subject to
ERISA or Section 4975 of the Code (each, a "Plan"), nor (B) a Person
who is directly or indirectly purchasing the Transferred Certificates
on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or
G-1-1
<PAGE> 409
___ The Transferee is using funds from an insurance company general account
to acquire the Transferred Certificates, however, the purchase and
holding of such Certificates by such Person is exempt from the
prohibited transaction provisions of Section 406 or 407 of ERISA and
the excise taxes on such prohibited transactions imposed under Section
4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60.
___ The Transferred Certificates are Class [X][G] Certificates, an interest
in which is being acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 91-23, and such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section
3(16)(B) of ERISA) by the Trustee, the Depositor, any Fiscal Agent, any
of the Mortgage Loan Sellers, the Master Servicer, any
Exemption-Favored Party, the Special Servicer, any Sub-Servicer or any
Borrower with respect to any Mortgage Loan or group of Mortgage Loans
that represents more than 5% of the aggregate unamortized principal
balance of the Mortgage Loans determined on the date of the initial
issuance of the Certificates, or by an Affiliate of any such Person,
and (Z) agrees that it will obtain from each of its Transferees to
which it transfers an interest in the Transferred Certificates, a
written representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (X) and (Y), together
with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding
clauses (X) and (Y).
Very truly yours,
(Transferee)
By:
-------------------------------
Name:
Title:
G-1-2
<PAGE> 410
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (BOOK-ENTRY CLASS X AND CLASS G CERTIFICATES)
[Date]
[TRANSFEROR]
Re: Salomon Brothers Mortgage Securities VII, Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-C3, Class
[X][G]
Ladies and Gentlemen:
This letter is delivered to you in connection with the
Transfer by ______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The DEPOSITORY TRUST COMPANY ("DTC") and the Depository Participants) in Class
[X][G] Certificates having an initial [Certificate Notional Amount][Certificate
Principal Balance] as of December 19, 2000 (the "Closing Date") of $__________
(the "Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2000 (the "Pooling and Servicing Agreement"), among Salomon
Brothers Mortgage Securities VII, Inc. as depositor, Midland Loan Services, Inc.
as master servicer, Lennar Partners, Inc., as special servicer, Wells Fargo Bank
Minnesota, N.A., as trustee (the "Trustee") and LaSalle Bank National
Association as Certificate Administrator and as Tax Administrator. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as follows (check
the applicable paragraph):
___ The Transferee is neither (A) a retirement plan, an employee benefit
plan or other retirement arrangement, including an individual
retirement account or annuity, a Keogh plan or a collective investment
fund or separate account in which such plans, accounts or arrangements
are invested, including an insurance company general account, that is
subject to Section 406 of ERISA or Section 4975 of the Code (each, a
"Plan"), nor (B) a Person who is directly or indirectly purchasing an
interest in the Transferred Certificates on behalf of, as named
fiduciary of, as trustee of, or with assets of, a Plan;
___ The Transferee is using funds from an insurance company general account
to acquire an interest in the Transferred Certificates, however, the
purchase and holding of such interest by such Person is exempt from the
prohibited transaction provisions of Section 406 or 407 of ERISA and
the excise taxes on such prohibited transactions imposed under Section
4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or
___ The Transferred Certificates are Class [X] Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 91-
G-2-1
<PAGE> 411
23, and such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored
(within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Fiscal Agent, any of the Mortgage Loan Sellers, the
Master Servicer, any Exemption-Favored Party, the Special Servicer, any
Sub-Servicer or any Borrower with respect to any Mortgage Loan or group
of Mortgage Loans that represents more than 5% of the aggregate
unamortized principal balance of the Mortgage Loans determined on the
date of the initial issuance of the Certificates, or by an Affiliate of
any such Person, and (Z) agrees that it will obtain from each of its
Transferees to which it transfers an interest in the Transferred
Certificates, a written representation that such Transferee, if a Plan,
satisfies the requirements of the immediately preceding clauses (X) and
(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written
representation regarding satisfaction of the requirements of the
immediately preceding clauses (X) and (Y).
(Transferee)
By:
----------------------------------
Name:
Title:
G-2-2
<PAGE> 412
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS R CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________
(the prospective transferee (the "Transferee") of Salomon Brothers Mortgage
Securities VII, Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-C3, Class R, evidencing a __% Percentage Interest in such Class (the
"Residual Interest Certificates")), a _________________ duly organized and
validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Interest Certificates were
issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will
be, a Permitted Transferee and will endeavor to remain a Permitted Transferee
for so long as it holds the Residual Interest Certificates, and (ii) is
acquiring the Residual Interest Certificates for its own account or for the
account of another prospective transferee from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any Person other than a "Disqualified Organization" or a
"non-United States Person", but in addition, if such Person is classified as a
partnership under the Code, such Person can only be a "Permitted Transferee" if
all of its beneficial owners are United States Persons. For this purpose, a
"Disqualified Organization" means the United States, any state or political
subdivision thereof, any agency or instrumentality of any of the foregoing
(other than an instrumentality, all of the activities of which are subject to
tax and, except for the Federal Home Loan Mortgage Corporation, a majority of
whose board of directors is not selected by any such governmental entity) or any
foreign government, international organization or any agency or instrumentality
of such foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives) that
is generally exempt from federal income tax unless such organization is subject
to the tax on unrelated business taxable income. A "non-United States Person" is
any Person other than a "United States Person". A "United States Person" is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in, or under the laws of, the United States or any
political subdivision thereof, an estate whose income from sources without the
United States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States or a trust as to which (i) a court in the United States
is able to exercise primary supervision over the administration of the trust and
(ii) one or more United States fiduciaries have the right to control all
substantial decisions of the trust or, to the extent provided in the Treasury
regulations, a trust if it was in existence on August 20, 1996 and if elected to
be treated as a United States Person).
H-1-1
<PAGE> 413
3. The Transferee is aware (i) of the tax that would be
imposed under the Code on transfers of the Residual Interest Certificates to
non-Permitted Transferees; (ii) that such tax would be on the transferor or, if
such transfer is through an agent (which Person includes a broker, nominee or
middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such Person an affidavit that the transferee is a
Permitted Transferee and, at the time of transfer, such Person does not have
actual knowledge that the affidavit is false; and (iv) that the Residual
Interest Certificates may be a "noneconomic residual interest" within the
meaning of Treasury regulation Section 1.860E-1(c) and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer is to enable the transferor to impede the assessment or collection of
tax.
4. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual Interest Certificates if at any time
during the taxable year of the pass-through entity a non-Permitted Transferee is
the record holder of an interest in such entity. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will
not register any transfer of the Residual Interest Certificates by the
Transferee unless the Transferee's transferee, or such transferee's agent,
delivers to the Certificate Registrar, among other things, an affidavit and
agreement in substantially the same form as this affidavit and agreement. The
Transferee expressly agrees that it will not consummate any such transfer if it
knows or believes that any representation contained in such affidavit and
agreement is false. In addition, the Transferee is aware the Certificate
Registrar will not register any transfer of the Residual Interest Certificates
to an entity classified as a partnership under the Code unless at the time of
transfer, all of the beneficial owners of such entity are "United States
Persons".
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Interest Certificates will
only be owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
______________.
8. The Transferee has reviewed the provisions of Section
5.02(d) of the Pooling and Servicing Agreement, a description of which
provisions is set forth in the Residual Interest Certificates (in particular,
the portion of Section 5.02(d) which authorizes the Trustee to deliver payments
on the Residual Interest Certificates to a Person other than the Transferee and
the portion of Section 5.02(d) which authorizes the Trustee to negotiate a
mandatory sale of the Residual Interest Certificates, in either case, in the
event that the Transferee holds such Residual Interest Certificates in violation
of Section 5.02(d)); and the Transferee expressly agrees to be bound by and to
comply with such provisions.
9. No purpose of the Transferee relating to its purchase or
any sale of the Residual Interest Certificates is or will be to impede the
assessment or collection of any tax.
H-1-2
<PAGE> 414
10. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Interest Certificates as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows
generated by the Residual Interest Certificates.
11. The Transferee will, in connection with any transfer that
it makes of the Residual Interest Certificates, deliver to the Certificate
Registrar a representation letter substantially in the form of Exhibit H-2 to
the Pooling and Servicing Agreement in which it will represent and warrant,
among other things, that it is not transferring the Residual Interest
Certificates to impede the assessment or collection of any tax and that it has
at the time of such transfer conducted a reasonable investigation of the
financial condition of the proposed Transferee (or its current beneficial owners
if such Transferee is classified as a partnership under the Code) as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has satisfied
the requirements of such provision.
H-1-3
<PAGE> 415
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to the authority of its Board of
Directors, by its ____________________ and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this ______ day of
______________.
[NAME OF TRANSFEREE]
By:__________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
--------------------------------
[Assistant] Secretary
Personally appeared before me the above-named
____________________, known or proved to me to be the same person who executed
the foregoing instrument and to be the ____________________ of the Transferee,
and acknowledged to me that he/she executed the same as his/her free act and
deed and the free act and deed of the Transferee
Subscribed and sworn before me this ______ day of
__________________, ________.
NOTARY PUBLIC
COUNTY OF
STATE OF
---------------------------
My Commission expires the _________ day of ___________, ____.
H-1-4
<PAGE> 416
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[date]
LaSalle Bank National Association
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group
Salomon Brothers Mortgage Securities VII, Inc., Series2000-C3
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C3, Class R Certificates, evidencing a ____%
Percentage Interest in such Class (the "Residual
Interest Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the Residual Interest Certificates, pursuant to the Pooling and
Servicing Agreement, dated as of December 1, 2000 (the "Pooling and Servicing
Agreement"), among Salomon Brothers Mortgage Securities VII, Inc. as Depositor,
Midland Loan Services, Inc. as Master Servicer, Lennar Partners, Inc., as
Special Servicer, Wells Fargo Bank Minnesota, N.A., as Trustee and LaSalle Bank
National Association as Certificate Administrator and as Tax Administrator. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Interest Certificates by the Transferor to the Transferee is or
will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit H-1. The Transferor does not know or
believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or the
beneficial owners of the Transferee if the Transferee is classified as a
partnership under the Code) as contemplated by Treasury regulation Section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has
determined that the Transferee has historically paid its debts as they became
due and has
H-2-1
<PAGE> 417
found no significant evidence to indicate that the Transferee will not continue
to pay its debts as they become due in the future. The Transferor understands
that the transfer of the Residual Interest Certificates may not be respected for
United States income tax purposes (and the Transferor may continue to be liable
for United States income taxes associated therewith) unless the Transferor has
conducted such an investigation.
Very truly yours,
(Transferor)
By:
----------------------------------------
Name:
Title:
H-2-2
<PAGE> 418
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[date]
Moody's Investors Service
99 Church Street, 6th Floor
New York, New York 10007
Attention: Commercial MBS Monitoring Department
Standard & Poor's Rating Services
55 Water Street, 41st Floor
New York, New York 10041
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C3
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.06 of the
Pooling and Servicing Agreement, dated as of December 1, 2000, and relating to
Salomon Brothers Mortgage Securities VII, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-C3 (the "Agreement"). Capitalized terms used but not
otherwise defined herein shall have respective meanings assigned to them in the
Agreement.
Notice is hereby given that the Holders of Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
have designated __________________ to serve as the Special Servicer under the
Agreement.
The designation of
_______________________________________________as Special Servicer will become
final if certain conditions are met and each Rating Agency delivers to Wells
Fargo Bank Minnesota, N.A., the trustee under the Agreement (the "Trustee"),
written confirmation that if the person designated to become the Special
Servicer were to serve as such, such event would not result in the
qualification, downgrade or withdrawal of the rating or ratings assigned to one
or more Classes of the Certificates. Accordingly, such confirmation is hereby
requested as soon as possible.
I-1-1
<PAGE> 419
Please acknowledge receipt of this notice by signing the
enclosed copy of this notice where indicated below and returning it to the
Trustee, in the enclosed stamped self-addressed envelope.
Very truly yours,
WELLS FARGO BANK MINNESOTA, N.A., as Trustee
By:
-------------------------------
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE
By:
---------------------------------------
Name:
Title:
Date:
STANDARD & POOR'S RATING SERVICES
By:
---------------------------------------
Name:
Title:
Date:
I-1-2
<PAGE> 420
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
, 2000
-------------
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Midland Loan Services, Inc.
210 West 10th Street, 6th floor
Kansas City, Missouri 64105
Lennar Partners, Inc.
760 NW 107th Avenue
Miami, Florida 33172
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street
New York, New York 10013
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series
2000-C3
Ladies and Gentlemen:
Pursuant to Section 6.06 of the Pooling and Servicing
Agreement, dated as of December 1, 2000 relating to Salomon Brothers Mortgage
Securities VII, Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-C3 (the "Agreement"), the undersigned hereby agrees with all the other
parties to the Agreement that the undersigned shall serve as Special Servicer
under, and as defined in, the Agreement. The undersigned hereby acknowledges
that, as of the date hereof, it is and shall be a party to the Agreement and
bound thereby to the full extent indicated therein in the capacity of Special
Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 2.06 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization: ___________________________.
By:
----------------------------------------
Name:
Title:
I-2-1
<PAGE> 421
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
DEBTOR:
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street
New York, New York 10013
SECURED PARTY:
Wells Fargo Bank Minnesota, N.A.(*)
as Trustee for the registered holders of
Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2000-C3
45 Broadway, 12th Floor
New York, New York 10006
TEXT:
See Exhibit 1 Attached Hereto
--------
(*) Notices to the Secured Party should be sent to 11000 Broken Land Parkway,
Columbia, Maryland 21044-3562, Attention: Corporate Trust Administration (CMBS)
- Salomon Brothers Mortgage Securities VII, Inc., Series 2000-C3.
J-1
<PAGE> 422
EXHIBIT 1 TO EXHIBIT J
This Schedule I is attached to and incorporated in a financing
statement pertaining to Salomon Brothers Mortgage Securities VII, Inc. as
depositor (referred to as the "Debtor" for the purpose of this financing
statement only), and Wells Fargo Bank Minnesota, N.A., as trustee for the
holders of the Series 2000-C3 Certificates (referred to as the "Secured Party"
for purposes of this financing statement only), under that certain Pooling and
Servicing Agreement, dated as of December 1, 2000 (the "Pooling and Servicing
Agreement"), among the Debtor as depositor, the Secured Party as trustee,
Midland Loan Services, Inc. as master servicer (the "Master Servicer"), Lennar
Partners, Inc. as special servicer (the "Special Servicer"), and LaSalle Bank
National Association as Certificate Administrator (the "Certificate
Administrator") and as Tax Administrator, relating to the issuance of the
Debtor's Commercial Mortgage Pass-Through Certificates, Series 2000-C3
(collectively, the "Series 2000-C3 Certificates") and pursuant to which the
Debtor has transferred to the Secured Party certain commercial and multifamily
mortgage loans identified on the schedule attached hereto as Exhibit A (such
mortgage loans, the "Mortgage Loans"). Capitalized terms used herein and not
defined shall have the respective meanings given to them in the Pooling and
Servicing Agreement. The attached financing statement covers all of the Debtor's
right (including the power to convey title thereto), title and interest in and
to the Trust Fund created pursuant to the Pooling and Servicing Agreement,
including, without limitation, the following:
1. The mortgage notes or other evidence of indebtedness
of a borrower (the "Mortgage Notes") with respect to
the mortgage loans;
2. The related mortgages, deeds of trust or other
similar instruments securing such Mortgage Notes (the
"Mortgages");
3. With respect to each Mortgage Note and each Mortgage,
each other legal, credit and servicing document
related to such Mortgage Note and Mortgage
(collectively, with such related Mortgage Note and
Mortgage, the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by the Master
Servicer pursuant to the Pooling and Servicing
Agreement, (b) all funds from time to time on deposit
in the Collection Account, (c) the investments of any
such funds consisting of securities, instruments or
other obligations, and (d) the general intangibles
consisting of the contractual right to payment,
including, without limitation, the right to payments
of principal and interest and the right to enforce
the related payment obligations, arising from or
under any such investments;
5. All REO Property;
6. (a) the REO Account required to be maintained by the
Special Servicer pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time
on deposit in the REO Account, (c) the investments of
any such funds consisting of securities, instruments
or other obligations, and (d) the
J-2
<PAGE> 423
general intangibles consisting of the contractual
right to payment, including, without limitation, the
right to payments of principal and interest and the
right to enforce the related payment obligations,
arising from or under any such investments;
7. (a) the Servicing Account(s) and Reserve Account(s)
required to be maintained by the Master Servicer or
Special Servicer pursuant to the Pooling and
Servicing Agreement, and (b) all funds from time to
time on deposit in the Servicing Account(s) and
Reserve Account(s);
8. (a) the Distribution Account, Interest Reserve
Account and Gain on Sale Reserve Account required to
be maintained by the Secured Party pursuant to the
Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the Distribution Account,
(c) the investments of any such funds consisting of
securities, instruments or other obligations, and (d)
the general intangibles consisting of the contractual
right to payment, including, without limitation, the
right to payments of principal and interest and the
right to enforce the related payment obligations,
arising from or under any such investments;
9. All insurance policies, including the right to
payments thereunder, with respect to the Mortgage
Loans required to be maintained pursuant to the
Mortgage Loan Documents and the Pooling and Servicing
Agreement, transferred to the Trust and to be
serviced by the Master Servicer or Special Servicer;
and
10. All income, payments, products and proceeds of any of
the foregoing, together with any additions thereto or
substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS, AND
THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT
OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP
OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR
OTHER MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN INSTRUMENT, A
CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD
THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY
TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY
J-3
<PAGE> 424
IN THE CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO
PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT
OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH SECURITY, INSTRUMENT OR OTHER
OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY PERMITTED INVESTMENT). WITH
RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY
ASSERTIONS BY THIRD PARTIES.
J-4
<PAGE> 425
EXHIBIT A TO EXHIBIT 1 TO EXHIBIT J
MORTGAGE LOAN SCHEDULE
[See Attached Schedule]
J-5
<PAGE> 426
EXHIBIT K
CALCULATION OF NET OPERATING INCOME
With respect to any Mortgaged Property, "Net Operating Income"
shall mean for each fiscal year, trailing twelve (12) months or portion thereof,
(i) the related Operating Income allocable to such period, less (ii) the related
Operating Expenses allocable to such period.
With respect to any Mortgaged Property "Operating Income"
shall mean, for each fiscal year or portion thereof, all revenue derived by the
related Borrower arising from the Mortgaged Property, including, without
limitation, rental revenues (whether denominated as basic rent, additional rent,
percentage rent, escalation payments, electrical payments or otherwise) and
other fees and charges payable pursuant to leases or otherwise in connection
with the Mortgaged Property, and rent insurance proceeds. Operating Income shall
not include (a) insurance proceeds (other than proceeds of business interruption
or other similar insurance allocable to the applicable period) and condemnation
awards (other than awards arising from a temporary taking or the use and
occupancy of all or part of the applicable Mortgaged Property allocable to the
applicable period), or interest accrued on such proceeds or awards, (b) proceeds
of any financing, (c) proceeds of any sale, exchange or transfer of the
Mortgaged Property or any part thereof or interest therein, (d) capital
contributions or loans to the Borrower or an Affiliate of the Borrower, (e) any
item of income otherwise includible in Operating Income but paid directly by any
tenant to a Person other than the Borrower except for real estate taxes paid
directly to any taxing authority by any tenant, (f) any other extraordinary,
non-recurring revenues, (g) rent paid by or on behalf of any lessee under space
lease which is the subject of any proceeding or action relating to its
bankruptcy, reorganization or other arrangement pursuant to federal bankruptcy
law or any similar federal or state law or which has been adjudicated a bankrupt
or insolvent, unless such space lease has been affirmed by the trustee in such
proceeding or action, or (h) rent paid by or on behalf of any lessee under a
space lease the demised premises of which are not occupied either by such lessee
or by a sublessee thereof.
With respect to any Mortgaged Property "Operating Expenses"
shall mean, for each fiscal year, trailing twelve (12) months or portion
thereof, all expenses directly attributable to the operation, repair and/or
maintenance of the Mortgaged Property, including, without limitation,
impositions, insurance premiums, management fees, payments to third party
suppliers, and costs attributable to the operation, repair and maintenance of
the systems for heating, ventilating and air conditioning, and actually paid for
by the Borrower. Operating Expenses shall not include interest, principal and
premium, if any, due under the Mortgage Note or otherwise in connection with any
other secured indebtedness, income taxes, extraordinary capital improvements
costs, or any non-cash charge or expense such as depreciation.
K-1
<PAGE> 427
EXHIBIT L-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[date]
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group
Salomon Brothers Mortgage Securities VII, Inc., Series 2000-C3
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C3
In accordance with the Pooling and Servicing Agreement, dated
as of December 1, 2000 (the "Pooling and Servicing Agreement"), among Salomon
Brothers Mortgage Securities VII, Inc. as depositor (the "Depositor"), Midland
Loan Services, Inc. as Master Servicer, Lennar Partners, Inc. as special
servicer, Wells Fargo Bank Minnesota, N.A. as trustee (the "Trustee") and
LaSalle Bank National Association as Certificate Administrator and as Tax
Administrator, with respect to the Salomon Brothers Mortgage Securities VII,
Inc., Commercial Mortgage Pass-Through Certificates, Series 2000-C3 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial holder of
$___________ aggregate [Certificate Principal
Balance/Certificate Notional Amount] of the Class
____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information"):
___ The information on the Certificate
Administrator's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing
Agreement.
___ The information identified on the schedule
attached hereto pursuant to Section 8.12(b)
of the Pooling and Servicing Agreement.
3. In consideration of the Certificate Administrator's
disclosure to the undersigned of the Information, the
undersigned will keep the Information confidential
(except from such outside persons as are assisting it
in evaluating the Information), and such Information
will not, without the prior written consent of the
Certificate Administrator, be disclosed by the
undersigned or by its officers, directors, partners,
employees, agents or
L-1-1
<PAGE> 428
representatives (collectively, the "Representatives")
in any manner whatsoever, in whole or in part;
provided that the undersigned may provide all or any
part of the Information to any other person or entity
that holds or is contemplating the purchase of any
Certificate or interest therein, but only if such
person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees
to keep it confidential; and provided that the
undersigned may provide all or any part of the
Information to its auditors, legal counsel and
regulators.
4. The undersigned will not use or disclose the
Information in any manner which could result in a
violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would
require registration of any Privately Offered
Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities
Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[BENEFICIAL HOLDER OF A
CERTIFICATE]
By:
-------------------------------
Name:
Title:
Telephone No.:
L-1-2
<PAGE> 429
EXHIBIT L-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[date]
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group
Salomon Brothers Mortgage Securities VII, Inc., Series 2000-C3
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-C3
In accordance with the Pooling and Servicing Agreement, dated
as of December 1, 2000 (the "Pooling and Servicing Agreement"), among Salomon
Brothers Mortgage Securities VII, Inc. as depositor (the "Depositor"), Midland
Loan Services, Inc. as master servicer, Lennar Partners, Inc. as special
servicer, Wells Fargo Bank Minnesota, N.A. as trustee (the "Trustee"), and
LaSalle Bank National Association as Certificate Administrator and as Tax
Administrator, with respect to the Salomon Brothers Mortgage Securities VII,
Inc., Commercial Mortgage Pass-Through Certificates, Series 2000-C3 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the
Class ____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information") for use in evaluating
such possible investment:
___ The information on the Certificate
Administrator's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing
Agreement.
___ The information identified on the schedule
attached hereto pursuant to Section 8.12(b)
of the Pooling and Servicing Agreement.
3. In consideration of the Certificate Administrator's
disclosure to the undersigned of the Information, the
undersigned will keep the Information confidential
(except from such outside persons as are assisting it
in making the investment decision described in
paragraphs 1 and 2), and such Information will not,
without the prior written consent of the Certificate
Administrator, be disclosed by the undersigned or by
its officers, directors, partners, employees, agents
or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole
or in part;
L-2-1
<PAGE> 430
provided that in the event the undersigned purchases
any Certificate or any interest in any Certificate,
the undersigned may provide all or any part of the
Information to any other person or entity that holds
or is contemplating the purchase of any Certificate
or interest therein, but only if such person or
entity confirms in writing such ownership interest or
prospective ownership interest and agrees to keep it
confidential; and provided that the undersigned may
provide all or any part of the Information to its
auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the
Information in any manner which could result in a
violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would
require registration of any Privately Offered
Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities
Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[PROSPECTIVE PURCHASER]
By:
-------------------------------
Name:
Title:
Telephone No.:
L-2-2
<PAGE> 431
EXHIBIT M-1
FORM OF SBRC MORTGAGE LOAN PURCHASE
AGREEMENT
<PAGE> 432
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective as of December 12, 2000, between Salomon Brothers Realty
Corp., a New York corporation ("SBRC"), as seller (in such capacity, together
with its successors and permitted assigns hereunder, the "Seller"), and Salomon
Brothers Mortgage Securities VII, Inc., a Delaware corporation ("SBMS VII"), as
purchaser (in such capacity, together with its successors and permitted assigns
hereunder, the "Purchaser").
RECITALS
SBRC desires to sell, assign, transfer and otherwise convey to
SBMS VII, without recourse, and SBMS VII desires to purchase, subject to the
terms and conditions set forth herein, the multifamily and commercial mortgage
loans (the "Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended from
time to time pursuant to the terms hereof.
SBMS VII intends to create a trust (the "Trust"), the primary
assets of which will be the Mortgage Loans, certain other multifamily and
commercial mortgage loans (the "Other Loans"; and, together with the Mortgage
Loans, the "Securitized Loans"). Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund") will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc. and Moody's Investors Service, Inc. (together,
the "Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be subject to registration under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of December 1, 2000 (the "Pooling and Servicing Agreement"), among SBMS
VII, as depositor, Midland Loan Services, Inc., as master servicer (the "Master
Servicer"), Lennar Partners, Inc., as special servicer ( "Special Servicer"),
and Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee"). Capitalized
terms used but not otherwise defined herein have the respective meanings
assigned to them in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date (as defined in Section 1 hereof). It is anticipated
that SBMS VII will transfer the Mortgage Loans to the Trust contemporaneously
with its purchase of the Mortgage Loans hereunder.
The Depositor will acquire some of the Other Loans from
Greenwich Capital Financial Products, Inc. ("GCFP"), some of the Other Loans
from LaSalle Bank National Association ("LaSalle"), and the remaining Other
Loans from Artesia Mortgage Capital Corporation ("AMCC"; and, collectively with
GCFP and LaSalle, the "Other Loan Sellers").
SBMS VII intends to sell the Registered Certificates to
Salomon Smith Barney Inc. ("SSBI"), Greenwich Capital Markets, Inc. ("Greenwich
Capital"), Chase Securities Inc. ("Chase"), Deutsche Bank Securities Inc.
("Deutsche Bank"), J.P. Morgan Securities Inc. ("J.P. Morgan") and ABN AMRO Bank
N.V. ("ABN AMRO"), pursuant to an underwriting
M-1-2
<PAGE> 433
agreement, dated as of the date hereof (the "Underwriting Agreement"), among
SBMS VII, SSBI, Greenwich Capital, Chase, Deutsche Bank, J.P. Morgan and ABN
AMRO; and SBMS VII intends to sell the remaining Certificates (the
"Non-Registered Certificates") to SSBI and Greenwich Capital, pursuant to a
certificate purchase agreement, dated as of the date hereof (the "Certificate
Purchase Agreement"), among SBMS VII, SSBI and Greenwich Capital. The Registered
Certificates are more fully described in the prospectus dated December 12, 2000
(the "Basic Prospectus"); and the supplement to the Basic Prospectus dated
December 12, 2000 (the "Prospectus Supplement"; and, together with the Basic
Prospectus, the "Prospectus"), as each may be amended or supplemented any time
hereafter. Certain classes of the Non-Registered Certificates are more fully
described in the private placement memorandum dated December 12, 2000 (the
"Memorandum"), as it may be amended or supplemented at any time hereafter.
SBRC will indemnify SBMS VII, SSBI, Greenwich Capital, Chase,
Deutsche Bank, J.P. Morgan, ABN AMRO and certain related parties with respect to
the disclosure regarding the Mortgage Loans and SBRC contained in the
Prospectus, the Memorandum and certain other disclosure documents and offering
materials relating to the Certificates, pursuant to an indemnification agreement
dated as of the date hereof (the "Indemnification Agreement"), among SBRC, SBMS
VII, SSBI, Greenwich Capital, Chase, Deutsche Bank, J.P. Morgan and ABN AMRO.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise
convey (without recourse) to the Purchaser, and the Purchaser agrees to
purchase, subject to the terms and conditions set forth herein, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on December
19, 2000 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). As of the close of business on their respective due
dates in December 2000 (individually, on a loan-by-loan basis, and collectively,
the "Cut-off Date"), the Mortgage Loans will have an aggregate principal
balance, after application of all payments of principal due on the Mortgage
Loans on or before such date, whether or not received, of $257,886,272, subject
to a variance of plus or minus 5%. The purchase price for the Mortgage Loans
shall be $___________, together with accrued interest on the Mortgage Loans at
their respective Net Mortgage Rates from and including the Cut-off Date to but
not including the Closing Date, and shall be paid to the Seller by wire transfer
in immediately available funds on the Closing Date (or by such other method as
shall be mutually acceptable to the parties hereto).
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to its
receipt and acceptance of the purchase price referred to in Section 1 hereof,
the Seller does hereby transfer, assign, set over and otherwise convey to the
Purchaser, without recourse but subject to the terms of this Agreement, all the
right, title and interest of the Seller in and to the Mortgage Loans identified
on the Mortgage Loan Schedule as of such date, including, without limitation,
all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard or other insurance
M-1-3
<PAGE> 434
policies received by the Seller on or with respect to the Mortgage Loans after
the Cut-off Date and any Additional Collateral. The Seller shall, within 15 days
of the discovery of an error on the Mortgage Loan Schedule, amend the Mortgage
Loan Schedule and deliver to the Purchaser or its designee an amended Mortgage
Loan Schedule. The Mortgage Loan Schedule, as it may be amended, shall conform
to the requirements set forth in this Agreement.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its
expense, deliver or cause to be delivered to the Purchaser or its designee the
Mortgage File and any Additional Collateral (other than reserve funds and escrow
payments) with respect to each Mortgage Loan. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipient of the items
described in the preceding sentence shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original
or certified recorded document or original policy of title insurance which is to
be delivered as part of the related Mortgage File, solely because the Seller is
delayed in making such delivery by reason of the fact that such original or
certified recorded document has not been returned by the appropriate recording
office or such original policy of title insurance has not yet been issued, then
the Seller shall notify the Purchaser, in writing, of such delay (unless the
Trustee shall have provided the Purchaser with an exception report indicating
such delay), and the Seller shall deliver such documents to the Purchaser or its
designee promptly upon the Seller's receipt thereof.
In addition, unless previously delivered by the Seller to the
Purchaser or its designee, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, the following items, within 10 days following the Closing Date
(or, if any of the following items are not in the actual possession of the
Seller, within 30 days following the Closing Date): (i) copies of the Mortgage
Files for the respective Mortgage Loans; (ii) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are necessary for the ongoing servicing and
administration of the Mortgage Loans; and (iii) all unapplied reserve funds and
escrow payments in the possession or under the control of the Seller that relate
to the Mortgage Loans, other than those that are to be retained by a
sub-servicer or primary servicer that will continue to act on behalf of the
Purchaser. Unless the Purchaser notifies the Seller in writing to the contrary,
the designated recipient of the items described in clauses (i) - (iii) of the
preceding sentence shall be the Master Servicer.
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The Seller shall also provide to the Purchaser or its designee
the initial data on the Mortgage Loans (as of the Closing Date or the most
recent earlier date for which such date is available) contemplated by the Loan
Set-up File, the Loan Periodic Update File, the Operating Statement Analysis
Report and the Property File.
(d) The Seller shall be responsible for all reasonable costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer to the Purchaser with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement; provided that the Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer. If any such assignment or other instrument of transfer
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, and the Seller receives notice to such effect from the Purchaser
or its designee, then the Seller shall prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be. The Seller shall
provide the Purchaser or its designee with a power of attorney to enable it or
them to record any loan documents that the Purchaser has been unable to record.
(e) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller shall report its transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of those assets
to the Purchaser in exchange for the consideration specified in Section 1
hereof. In connection with the foregoing, the Seller shall cause all of its
records to reflect such transfer as a sale (as opposed to a secured loan) and to
reflect that the Mortgage Loans are no longer property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
SECTION 3. Examination of Mortgage Loan Files and Due
Diligence Review.
The Seller shall reasonably cooperate with any examination of
the Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser. The
fact that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section
4, except as such remedies are otherwise limited by the terms of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes, as of the Closing Date, to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit B.
M-1-5
<PAGE> 436
(b) The Seller hereby makes, as of the Closing Date (or as of
such other date specifically provided in the particular representation or
warranty) to and for the benefit of the Purchaser, each of the representations
and warranties set forth in Exhibit C.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 4 shall survive delivery of the respective
Mortgage Files to the Purchaser or its designee and shall inure to the benefit
of the Purchaser for so long as any of the Mortgage Loans remains outstanding,
notwithstanding any restrictive or qualified endorsement or assignment.
SECTION 4A. Representations, Warranties and Covenants of
Purchaser.
The Purchaser hereby represents and warrants, as of the Closing Date,
that:
(a) The Purchaser is a duly formed corporation, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(c) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(d) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this Agreement
by the Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or instrument to which it is a party or which is applicable to it or
any of its assets.
(e) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the terms
of this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which violation,
in the Purchaser's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the Purchaser.
(f) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good faith
and reasonable judgment, is likely to materially and
M-1-6
<PAGE> 437
adversely affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Seller.
(g) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency or body
is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations and
orders that previously have been obtained and those filings and registrations
that previously have been completed.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within 90 days of the earlier of discovery or receipt of
notice by the Seller that there has been a Material Breach or a Material
Document Defect, the Seller shall, subject to subsection (b) below, (i) cure
such Material Breach or Material Document Defect, as the case may be, in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price provided for in the
Pooling and Servicing Agreement, which Purchase Price shall be deposited or
delivered in accordance with the directions of the Purchaser; provided that if
(i) any such Material Breach or Material Document Defect, as the case may be,
does not affect whether the Defective Mortgage Loan was, is or will continue to
be, a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
(a "Qualified Mortgage"), (ii) such Material Breach or Material Document Defect,
as the case may be, is capable of being cured but not within such 90-day period,
(iii) the Seller has commenced and is diligently proceeding with the cure of
such Material Breach or Material Document Defect, as the case may be, within
such 90-day period, and (iv) the Seller shall have delivered to the Purchaser a
certification executed on behalf of the Seller by an officer thereof setting
forth the reason that such Material Breach or Material Document Defect, as the
case may be, is not capable of being cured within the initial 90-day period and
what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Material Breach or Material
Document Defect, as the case may be, will be cured within an additional period
not to exceed 90 more days, then the Seller shall have an additional 90 days to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan.
Any such repurchase of a Defective Mortgage Loan shall be on a whole loan,
servicing released basis (subject to any right of a Designated Sub-Servicer to
continue to sub-service such Defective Mortgage Loan as set forth in the related
Designated Sub-Servicer Agreement). The Seller shall have no obligation to
monitor the Mortgage Loans regarding the existence of a Material Breach or a
Material Document Defect, but if the Seller has actual knowledge of a Material
Breach or Material Document Defect with respect to a Mortgage Loan, it will
notify the Purchaser.
If 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 Borrower and record, such
documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loans therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
M-1-7
<PAGE> 438
corresponding thereto; provided that no such termination shall be effected
unless and until the Purchaser and its servicing agent has received from the
Seller: (i) 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 either Grantor Trust Pool and (ii)
written confirmation from each Rating Agency that such termination will not
cause an Adverse Rating Event to occur with respect to any Class of Rated
Certificates; and provided, further, that the Seller may, at its option,
purchase the entire subject Cross-Collateralized Group in lieu of terminating
the cross-collateralization. All costs and expenses incurred by the Purchaser 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 is a Material Breach or Material Document Defect,
as the case may be, and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
If any Defective Mortgage Loan is to be repurchased as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and shall forward
such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller
set forth in this Section 5(a) to cure a Material Breach or a Material Document
Defect or repurchase the related Defective Mortgage Loan(s), constitute the sole
remedies available to the Purchaser with respect to a Breach or Document Defect.
(b) It shall be a condition to any repurchase of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that (i) the Purchaser
shall have executed and delivered such instruments of transfer or assignment
then presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto), to the extent that such
ownership interest was transferred to the Purchaser hereunder and (ii) the
Purchaser or its assignee shall release or cause the release to the Seller or
its designee of the Mortgage File, any Additional Collateral, all insurance
policies and proceeds thereunder, the Servicing File and any Escrow Payments
and/or Reserve Funds held by or on behalf of the Purchaser (or its assignee)
with respect to such Mortgage Loan.
SECTION 6. Closing.
(a) 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.
(b) The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
made pursuant to Section 4 of this Agreement shall be true and correct
in all material respects as of the Closing Date or such other date as
specified in Exhibit C;
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<PAGE> 439
(b) All documents specified in Section 7 of this Agreement
(the "Closing Documents"), in such forms as are reasonably acceptable
to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as it affects the obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the
Purchaser or its designee, all documents and funds required to be so
delivered pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required
to be complied with by the Seller and the Purchaser, including, without
limitation, in the case of the Purchaser, payment of the purchase
price, on or before the Closing Date shall have been complied with, and
the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees, costs and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement;
and
(f) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
(c) Both parties agree to use their best efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents.
The Closing Documents shall consist of the following:
(a) this Agreement duly executed and delivered by the
Purchaser and the Seller;
(b) the Indemnification Agreement duly executed and delivered
by the Seller, the Purchaser and each of SSBI, Greenwich Capital, Chase,
Deutsche Bank, J.P. Morgan and ABN AMRO;
(c) the Pooling and Servicing Agreement duly executed and
delivered by SBMS VII, the Master Servicer, the Special Servicer and the
Trustee;
(d) an Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and upon
which the Purchaser, SSBI, Greenwich Capital, Chase, Deutsche Bank, J.P. Morgan,
ABN AMRO and the Rating Agencies (collectively, the "Interested Parties") may
rely, attaching thereto as exhibits the organizational documents of the Seller,
as in full force and effect on the date hereof, and the Resolutions described in
clause(g) below;
M-1-9
<PAGE> 440
(e) a certificate of good standing with respect to the Seller
issued by the Secretary of State of the State of New York dated not earlier than
10 days prior to the Closing Date;
(f) a certificate of the Seller substantially in the form of
Exhibit D-2 hereto, executed by an executive officer or authorized signatory of
the Seller and dated the Closing Date, and upon which the Interested Parties may
rely;
(g) resolutions of the Seller authorizing the transactions
contemplated by this Agreement, which resolutions will be in full force and
effect, and will not have been rescinded, as of the Closing Date;
(h) a written opinion of counsel for the Seller, which may be
delivered by in-house counsel, substantially in the form of Exhibit D-3A hereto
(with any modifications required by any Rating Agency, and subject to such
reasonable assumptions, qualifications and limitations as may be requested by
counsel for the Seller and acceptable to counsel for the Purchaser), dated the
Closing Date and addressed to the Purchaser, each of the other parties to the
Pooling and Servicing Agreement and each of the other Interested Parties;
(i) a written opinion of Sidley & Austin, as special counsel
for the Seller, substantially in the form of Exhibit D-3B hereto (with any
modifications required by any Rating Agency, and subject to such reasonable
assumptions, qualifications and limitations as may be requested by counsel for
the Seller and acceptable to counsel for the Purchaser), dated the Closing Date
and addressed to the Purchaser, each of the other parties to the Pooling and
Servicing Agreement and each of the other Interested Parties;
(j) such other written opinions as may be required by either
Rating Agency (including, without limitation, a favorable opinion as to the
"true sale" characterization of the transfer of the Mortgage Loans contemplated
by this Agreement);
(k) a written letter of Sidley & Austin, as special counsel to
the Seller, substantially in the Form of Exhibit D-3C, relating to the
disclosure in the Prospectus regarding the Mortgage Loans and SBRC, dated the
Closing Date and addressed to the Purchaser and each of the other Interested
Parties (except for the Rating Agencies);
(l) one or more accountants' comfort letters, addressed, and
in form and substance reasonably acceptable, to SSBI, Greenwich Capital, Chase,
Deutsche Bank, J.P. Morgan and ABN AMRO, relating to the information regarding
the Mortgage Loans contained in the Prospectus and Memorandum that is of a
statistical nature; and
SECTION 8. Costs.
Any costs and expenses incurred by either party hereto in
connection with the transactions contemplated hereunder shall be borne by the
parties in accordance with the terms of that certain Term Sheet, dated October
20, 2000 (the "Term Sheet"), between the Seller, Greenwich Capital Financial
Products, Inc., LaSalle Bank National Association and Artesia Mortgage Capital
Corporation.
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SECTION 9. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to the Purchaser at 388 Greenwich Street, New
York, New York 10013, attention: Angela Hutzel, facsimile no.: 212-816-8307, or
to such other address or facsimile number as may hereafter be furnished to the
Seller in writing by the Purchaser; and, if to the Seller, addressed to the
Seller at 388 Greenwich Street, New York, New York 10013, attention: Angela
Hutzel, facsimile no.: 212-816-8307, or to such other address or facsimile
number as may hereafter be furnished to the Purchaser in writing by the Seller.
SECTION 10. Characterization.
The parties hereto agree that it is their express intent that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. The parties hereto further agree that it is not
their intention that such conveyance be deemed a pledge of the Mortgage Loans by
the Seller to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to continue to be property of the Seller, then: (a) this Agreement shall be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder(s) of those assets in accordance with the terms thereof (other
than scheduled payments of interest and principal due on or before the Cut-off
Date) and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property; (c) the
assignment by SBMS VII to the Trustee of its interests in the Mortgage Loans as
contemplated by Section 16 hereof shall be deemed to be an assignment of any
security interest created hereunder; (d) the possession by the Purchaser or any
successor thereto of the related Mortgage Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction; and
(e) notifications to, and acknowledgments, receipts or confirmations from,
persons or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
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<PAGE> 442
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
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 or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
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<PAGE> 443
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, SBMS VII is
expressly authorized to assign it rights and obligations under this Agreement,
in whole or in part, to the Trustee for the benefit of the registered holders
and beneficial owners of the Certificates. To the extent of any such assignment,
the Trustee (including acting through the Master Servicer and Special Servicer
pursuant to the terms of the Pooling and Servicing Agreement), for the benefit
of the registered holders and beneficial owners of the Certificates, shall be
the Purchaser hereunder. In connection with the transfer of any Mortgage Loan by
the Trust as contemplated by the terms of the Pooling and Servicing Agreement,
the Trustee, for the benefit of the registered holders and beneficial owners of
the Certificates, is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the transferee of such Mortgage
Loan. To the extent of any such assignment, such transferee shall be the
Purchaser hereunder (but solely with respect to such Mortgage Loan that was
transferred to it). Subject to the foregoing, this Agreement shall bind and
inure to the benefit of and be enforceable by the Seller and the Purchaser, and
their respective successors and permitted assigns.
SECTION 17. Amendments.
(a) No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced.
(b) Notwithstanding any contrary provision of this Agreement
or the Pooling and Servicing Agreement, no amendment of the Pooling and
Servicing Agreement executed after the Closing Date that increases the
obligations of or otherwise adversely affects the Seller, shall be effective
against the Seller.
SECTION 18. Entire Agreement.
Except as otherwise expressly contemplated hereby, this
Agreement constitutes the entire agreement and understanding of the parties with
respect to the matters addressed herein, and this Agreement supersedes any prior
agreements and/or understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
M-1-13
<PAGE> 444
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SALOMON BROTHERS REALTY CORP.
By:____________________________
Name:
Title:
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
By:____________________________
Name:
Title:
M-1-14
<PAGE> 445
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached Schedule]
M-1-15
<PAGE> 446
<TABLE>
<CAPTION>
Loan /
Control Loan Origi- Property Property Zip Property
Number Number nator Name Address City State Code Size
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One 440 South Chicago IL 60605 1,019,325
Financial LaSalle
Place Street
106 6603559 SBRC 149 New 149 New San Francisco CA 94105 79,750
Montgomery Montgomery
Street Street
113 6603432 SBRC Seatac Village 1800 S. 320th Federal Way WA 98003 164,326
Shopping Street
Center
117 6604370 SBRC Amerix Building 8930 Stanford Columbia MD 21045 154,400
Boulevard
118 6604594 SBRC 85 Devonshire 83-89 Boston MA 02109 91,283
Street/258-262 Devonshire
Washington Street;
Street 258-260
Washington
Street;
262-268
Washington
Street
119 6602060 SBRC Centro De State Road Catano PR 00919 326,014
Distribucion No. 869,
del Norte Palmas Ward
126 6603313 SBRC US Storage 23711 Torrance CA 90505 92,925
Centers Crenshaw
Boulevard
131 6604816 SBRC 601-609 601 - 609 San Francisco CA 94105 44,870
Mission Street Mission Street
145 6603550 SBRC Arlington 8655 Riverside CA 92503 176
Heights Arlington
Apartments Avenue
149 6604949 SBRC Villa de 5055 East Las Vegas NV 89104 160
Mission East Charleston
Boulevard
156 6605190 SBRC Town Green at 101 Old Wilton CT 06897 34,410
Wilton Center Ridgefield
Road and 15
Hubbard Road
158 6603687 SBRC Tivoli Gardens 1010 East Arlington TX 76014 200
Apartments Arkansas Lane
159 6603102 SBRC 155 Washington 155 Albany NY 12210 67,768
Ave Washington
Avenue
160 6605043 SBRC 370 Convention 370 Redwood City CA 94063 21,000
Way Convention Way
163 6604565 SBRC Franklinton 3364-3382 US Franklinton NC 27525 65,366
Square Highway 1
Shopping Center
169 6603484 SBRC The Cascades 1515 East Ocala FL 34470 86,951
Silver
Springs
Boulevard
193 6604021 SBRC K-Mart 2460 Mission Salem OR 97302 116,866
Shopping Street SE
Center - Salem
205 6604917 SBRC K-Mart 4600 South Murray UT 84117 106,880
Shopping Center - 900 East
Salt Lake City Street
207 6605277 SBRC Broadway Plaza 30 East 300 Salt Lake UT 84111 23,440
Building South City
208 6605130 SBRC 225 Long Avenue 225 Long Hillside NJ 07205 157,000
Avenue
229 6605203 SBRC Mini-City Self 6321 Spencer Pasadena TX 77505 91,521
Storage Highway
</TABLE>
<TABLE>
<CAPTION>
Cross
Collater-
alized
Cross Mortgage
Loan / Property Collater- Loan Group
Control Loan Origi- Property Size Unit alized Aggregate Ownership Original
Number Number nator Name Type (Mortgage Cut-Off Interest Balance
Loan Group) Date Balance
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One SF No 119,577,993 Fee Simple 120,000,000
Financial
Place
106 6603559 SBRC 149 New SF No 18,809,602 Fee Simple 18,900,000
Montgomery
Street
113 6603432 SBRC Seatac Village SF No 16,087,967 Fee Simple 16,250,000
Shopping
Center
117 6604370 SBRC Amerix Building SF No 14,401,991 Fee Simple 14,500,000
118 6604594 SBRC 85 Devonshire SF No 13,650,000 Fee Simple 13,650,000
Street/258-262
Washington
Street
119 6602060 SBRC Centro De SF No 11,197,298 Fee Simple 11,500,000
Distribucion
del Norte
126 6603313 SBRC US Storage SF No 8,365,375 Fee Simple 8,500,000
Centers
131 6604816 SBRC 601-609 SF No 7,372,989 Fee Simple 7,400,000
Mission Street
145 6603550 SBRC Arlington Units No 5,541,084 Fee Simple 5,600,000
Heights
Apartments
149 6604949 SBRC Villa de Units No 5,178,496 Fee Simple 5,200,000
Mission East
156 6605190 SBRC Town Green at SF No 4,907,937 Leasehold 4,920,000
Wilton Center
158 6603687 SBRC Tivoli Gardens Units No 4,369,641 Fee Simple 4,400,000
Apartments
159 6603102 SBRC 155 Washington SF No 4,342,309 Fee Simple 4,400,000
Ave
160 6605043 SBRC 370 Convention SF No 4,270,597 Fee Simple 4,281,000
Way
163 6604565 SBRC Franklinton SF No 4,183,600 Fee Simple 4,200,000
Square
Shopping Center
169 6603484 SBRC The Cascades SF No 3,963,920 Fee Simple 4,000,000
193 6604021 SBRC K-Mart SF No 2,791,494 Fee Simple 2,816,000
Shopping
Center - Salem
205 6604917 SBRC K-Mart SF No 2,423,568 Fee Simple 2,445,000
Shopping Center -
Salt Lake City
207 6605277 SBRC Broadway Plaza SF No 2,394,274 Fee Simple 2,400,000
Building
208 6605130 SBRC 225 Long Avenue SF No 2,391,798 Fee Simple 2,400,000
229 6605203 SBRC Mini-City Self SF No 1,664,339 Fee Simple 1,670,000
Storage
</TABLE>
<TABLE>
<CAPTION>
Loan / Interest
Control Loan Origi- Property Mortgage Rate Accrual Loan Note Control
Number Number nator Name Rate Type Method Type Date Number
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One 7.8900% Fixed Actual/360 ARD 05/02/00 101
Financial
Place
106 6603559 SBRC 149 New 8.8800% Fixed Actual/360 Balloon 01/14/00 106
Montgomery
Street
113 6603432 SBRC Seatac Village 7.5600% Fixed Actual/360 ARD 08/24/99 113
Shopping
Center
117 6604370 SBRC Amerix Building 8.6600% Fixed Actual/360 Balloon 03/02/00 117
118 6604594 SBRC 85 Devonshire 8.8200% Fixed Actual/360 Balloon 03/10/00 118
Street/258-262
Washington
Street
119 6602060 SBRC Centro De 8.5400% Fixed Actual/360 Balloon 06/15/99 119
Distribucion
del Norte
126 6603313 SBRC US Storage 8.2900% Fixed Actual/360 Balloon 06/29/99 126
Centers
131 6604816 SBRC 601-609 8.2200% Fixed Actual/360 Balloon 04/28/00 131
Mission Street
145 6603550 SBRC Arlington 7.5700% Fixed Actual/360 Balloon 07/26/99 145
Heights
Apartments
149 6604949 SBRC Villa de 7.7700% Fixed Actual/360 Balloon 04/13/00 149
Mission East
156 6605190 SBRC Town Green at 8.3600% Fixed Actual/360 Balloon 06/14/00 156
Wilton Center
158 6603687 SBRC Tivoli Gardens 8.0400% Fixed Actual/360 Balloon 11/19/99 158
Apartments
159 6603102 SBRC 155 Washington 8.2500% Fixed Actual/360 Balloon 09/24/99 159
Ave
160 6605043 SBRC 370 Convention 9.1900% Fixed Actual/360 Balloon 05/30/00 160
Way
163 6604565 SBRC Franklinton 7.9800% Fixed Actual/360 Balloon 04/11/00 163
Square
Shopping Center
169 6603484 SBRC The Cascades 7.9600% Fixed Actual/360 Balloon 08/30/99 169
193 6604021 SBRC K-Mart 8.7500% Fixed Actual/360 Balloon 05/10/00 193
Shopping
Center - Salem
205 6604917 SBRC K-Mart 8.7000% Fixed Actual/360 Full 05/10/00 205
Shopping Center - Amort
Salt Lake City
207 6605277 SBRC Broadway Plaza 8.4510% Fixed Actual/360 Balloon 06/30/00 207
Building
208 6605130 SBRC 225 Long Avenue 8.5300% Fixed Actual/360 Balloon 07/21/00 208
229 6605203 SBRC Mini-City Self 8.5700% Fixed Actual/360 Balloon 07/21/00 229
Storage
</TABLE>
<TABLE>
<CAPTION>
Original
Monthly Term to
Loan / Antici- Scheduled Debt Maturity /
Control Loan Origi- Property Loan pated Maturity Service ARD
Number Number nator Name Number Repayment Date Payment (months)
Date
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One 6605225 06/01/10 06/01/30 871,332.98 120
Financial
Place
106 6603559 SBRC 149 New 6603559 NAP 02/01/10 150,444.64 120
Montgomery
Street
113 6603432 SBRC Seatac Village 6603432 09/01/09 09/01/29 114,290.74 120
Shopping
Center
117 6604370 SBRC Amerix Building 6604370 NAP 04/01/10 118,325.48 120
118 6604594 SBRC 85 Devonshire 6604594 NAP 04/01/05 108,067.76(a) 60
Street/258-262
Washington
Street
119 6602060 SBRC Centro De 6602060 NAP 07/01/09 100,091.00 120
Distribucion
del Norte
126 6603313 SBRC US Storage 6603313 NAP 07/01/09 67,245.62 120
Centers
131 6604816 SBRC 601-609 6604816 NAP 05/01/10 55,437.74 120
Mission Street
145 6603550 SBRC Arlington 6603550 NAP 08/01/09 39,424.78 120
Heights
Apartments
149 6604949 SBRC Villa de 6604949 NAP 05/01/10 37,325.33 120
Mission East
156 6605190 SBRC Town Green at 6605190 NAP 07/01/10 37,343.47 120
Wilton Center
158 6603687 SBRC Tivoli Gardens 6603687 NAP 12/01/09 32,408.42 120
Apartments
159 6603102 SBRC 155 Washington 6603102 NAP 10/01/09 34,691.81 120
Ave
160 6605043 SBRC 370 Convention 6605043 NAP 06/01/07 35,032.75 84
Way
163 6604565 SBRC Franklinton 6604565 NAP 05/01/10 30,759.57 120
Square
Shopping Center
169 6603484 SBRC The Cascades 6603484 NAP 09/01/09 29,239.12 120
193 6604021 SBRC K-Mart 6604021 NAP 06/01/10 24,885.29 120
Shopping
Center - Salem
205 6604917 SBRC K-Mart 6604917 NAP 06/01/20 21,528.79 240
Shopping Center -
Salt Lake City
207 6605277 SBRC Broadway Plaza 6605277 NAP 07/01/10 18,370.64 120
Building
208 6605130 SBRC 225 Long Avenue 6605130 NAP 08/01/10 19,373.99 120
229 6605203 SBRC Mini-City Self 6605203 NAP 08/01/10 13,526.16 120
Storage
</TABLE>
<TABLE>
<CAPTION>
Stated Stated
Original Remaining Remaining
Amort- Term to Amort-
Loan / ization Maturity / ization Cut-off
Control Loan Origi- Property Term Seasoning ARD Term Date
Number Number nator Name (months) (months) (months) (months) Balance
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One 360 6 114 354 119,577,992.90
Financial
Place
106 6603559 SBRC 149 New 360 10 110 350 18,809,602.27
Montgomery
Street
113 6603432 SBRC Seatac Village 360 15 105 345 16,087,967.31
Shopping
Center
117 6604370 SBRC Amerix Building 300 8 112 292 14,401,990.84
118 6604594 SBRC 85 Devonshire 360 8 52 360 13,650,000.00
Street/258-262
Washington
Street
119 6602060 SBRC Centro De 240 17 103 223 11,197,297.78
Distribucion
del Norte
126 6603313 SBRC US Storage 300 17 103 283 8,365,375.11
Centers
131 6604816 SBRC 601-609 360 7 113 353 7,372,988.89
Mission Street
145 6603550 SBRC Arlington 360 16 104 344 5,541,084.10
Heights
Apartments
149 6604949 SBRC Villa de 360 7 113 353 5,178,495.88
Mission East
156 6605190 SBRC Town Green at 360 5 115 355 4,907,937.15
Wilton Center
158 6603687 SBRC Tivoli Gardens 360 12 108 348 4,369,641.03
Apartments
159 6603102 SBRC 155 Washington 300 14 106 286 4,342,309.01
Ave
160 6605043 SBRC 370 Convention 360 6 78 354 4,270,597.44
Way
163 6604565 SBRC Franklinton 360 7 113 353 4,183,599.97
Square
Shopping Center
169 6603484 SBRC The Cascades 360 15 105 345 3,963,919.71
193 6604021 SBRC K-Mart 240 6 114 234 2,791,494.14
Shopping
Center - Salem
205 6604917 SBRC K-Mart 240 6 234 234 2,423,568.25
Shopping Center -
Salt Lake City
207 6605277 SBRC Broadway Plaza 360 5 115 355 2,394,273.84
Building
208 6605130 SBRC 225 Long Avenue 300 4 116 296 2,391,797.50
229 6605203 SBRC Mini-City Self 300 4 116 296 1,664,338.67
Storage
</TABLE>
<TABLE>
<CAPTION>
Yield
Mainten-
Loan Yield ance
Loan / Balance at Defease Defease Maintenance Period
Control Loan Origi- Property Maturity Start End Period End
Number Number nator Name / ARD Date Date Start Date Date
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One 107,023,577.63 01/01/03 03/31/10 NAP NAP
Financial
Place
106 6603559 SBRC 149 New 17,241,569.01 01/01/03 12/31/09 NAP NAP
Montgomery
Street
113 6603432 SBRC Seatac Village 14,379,170.94 01/01/03 07/31/09 NAP NAP
Shopping
Center
117 6604370 SBRC Amerix Building 12,174,183.42 01/01/03 01/31/10 NAP NAP
118 6604594 SBRC 85 Devonshire 13,393,160.23 01/01/03 12/31/04 NAP NAP
Street/258-262
Washington
Street
119 6602060 SBRC Centro De 8,267,091.48 01/01/03 04/30/09 NAP NAP
Distribucion
del Norte
126 6603313 SBRC US Storage 7,068,356.30 01/01/03 03/31/09 NAP NAP
Centers
131 6604816 SBRC 601-609 6,652,916.02 01/01/03 02/28/10 NAP NAP
Mission Street
145 6603550 SBRC Arlington 4,957,351.70 01/01/03 05/31/09 NAP NAP
Heights
Apartments
149 6604949 SBRC Villa de 4,625,029.92 01/01/03 02/28/10 NAP NAP
Mission East
156 6605190 SBRC Town Green at 4,437,450.57 01/01/03 04/30/10 NAP NAP
Wilton Center
158 6603687 SBRC Tivoli Gardens 3,939,681.02 01/01/03 09/30/09 NAP NAP
Apartments
159 6603102 SBRC 155 Washington 3,653,778.88 01/01/03 07/31/09 NAP NAP
Ave
160 6605043 SBRC 370 Convention 4,071,564.28 01/01/03 03/31/07 NAP NAP
Way
163 6604565 SBRC Franklinton 3,754,628.03 01/01/03 02/28/10 NAP NAP
Square
Shopping Center
169 6603484 SBRC The Cascades 3,574,308.22 01/01/03 06/30/09 NAP NAP
193 6604021 SBRC K-Mart 2,036,820.22 01/01/03 03/31/10 NAP NAP
Shopping
Center - Salem
205 6604917 SBRC K-Mart 128,965.76 01/01/03 03/31/20 NAP NAP
Shopping Center -
Salt Lake City
207 6605277 SBRC Broadway Plaza 2,169,121.33 01/01/03 04/30/10 NAP NAP
Building
208 6605130 SBRC 225 Long Avenue 2,007,631.81 01/01/03 06/30/10 NAP NAP
229 6605203 SBRC Mini-City Self 1,398,516.89 01/01/03 05/31/10 NAP NAP
Storage
</TABLE>
<TABLE>
<CAPTION>
Prepay- Prepay-
ment ment Yield Yield Master
Loan / Penalty Penalty Maintenance Maintenance Servicing
Control Loan Origi- Property Start End Calculation Interest Fee
Number Number nator Name Date Date Method Rate Rate
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
101 6605225 SBRC One NAP NAP NAP NAP 0.0200%
Financial
Place
106 6603559 SBRC 149 New NAP NAP NAP NAP 0.0200%
Montgomery
Street
113 6603432 SBRC Seatac Village NAP NAP NAP NAP 0.0200%
Shopping
Center
117 6604370 SBRC Amerix Building NAP NAP NAP NAP 0.0200%
118 6604594 SBRC 85 Devonshire NAP NAP NAP NAP 0.0200%
Street/258-262
Washington
Street
119 6602060 SBRC Centro De NAP NAP NAP NAP 0.0200%
Distribucion
del Norte
126 6603313 SBRC US Storage NAP NAP NAP NAP 0.0200%
Centers
131 6604816 SBRC 601-609 NAP NAP NAP NAP 0.0200%
Mission Street
145 6603550 SBRC Arlington NAP NAP NAP NAP 0.0200%
Heights
Apartments
149 6604949 SBRC Villa de NAP NAP NAP NAP 0.0200%
Mission East
156 6605190 SBRC Town Green at NAP NAP NAP NAP 0.0200%
Wilton Center
158 6603687 SBRC Tivoli Gardens NAP NAP NAP NAP 0.0200%
Apartments
159 6603102 SBRC 155 Washington NAP NAP NAP NAP 0.0200%
Ave
160 6605043 SBRC 370 Convention NAP NAP NAP NAP 0.0200%
Way
163 6604565 SBRC Franklinton NAP NAP NAP NAP 0.0200%
Square
Shopping Center
169 6603484 SBRC The Cascades NAP NAP NAP NAP 0.0200%
193 6604021 SBRC K-Mart NAP NAP NAP NAP 0.0200%
Shopping
Center - Salem
205 6604917 SBRC K-Mart NAP NAP NAP NAP 0.0200%
Shopping Center -
Salt Lake City
207 6605277 SBRC Broadway Plaza NAP NAP NAP NAP 0.0200%
Building
208 6605130 SBRC 225 Long Avenue NAP NAP NAP NAP 0.0200%
229 6605203 SBRC Mini-City Self NAP NAP NAP NAP 0.0200%
Storage
</TABLE>
M-1-16
<PAGE> 447
EXHIBIT B
CORPORATE REPRESENTATIONS AND WARRANTIES
The Seller hereby represents and warrants, as of the Closing Date, that:
(a) The Seller is a duly formed corporation, validly existing
and in good standing under the laws of New York. The principal place of business
and chief executive office of the Seller is located in the State of New York.
(b) The Seller has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(c) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(d) The execution and delivery of this Agreement by the Seller,
and the performance and compliance with the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material agreement
or instrument to which it is a party or which is applicable to it or any of its
assets. Attached hereto as Exhibit E are true, correct, and complete copies of
the Seller's organizational documents in effect as of the Closing Date.
(e) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Seller's good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(f) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the Seller from
entering into this Agreement or, in the Seller's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of the
Seller to perform its obligations under this Agreement or the financial
condition of the Seller.
(g) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency or body
is required for the consummation
M-1-17
<PAGE> 448
by the Seller of the transactions contemplated herein, except for those
consents, approvals, authorizations and orders that previously have been
obtained and those filings and registrations that previously have been
completed.
(h) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(i) The transfer of the Mortgage Loans by the Seller to the
Purchaser, as contemplated herein, is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(j) The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
(k) The Seller will be solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
(l) 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.
(m) 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.
(n) In connection with, and at the time of, its transfer of the
Mortgage Loans hereunder, the Seller will receive consideration constituting at
least reasonably equivalent value and fair consideration for the assets
transferred.
(o) The execution, delivery and performance of this Agreement
by the Seller constitute bona fide and arm's length transactions and are
undertaken in the ordinary course of business of the Seller.
(p) Seller is not a party to or bound by a written or oral
agreement granting to any person or entity an option or right of first refusal
or other arrangement to acquire directly or indirectly any of the Mortgage
Loans.
M-1-18
<PAGE> 449
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
The Seller (with respect to each Mortgage Loan unless otherwise
indicated) hereby represents and warrants to SBMS VII and its successors and
assigns as provided in this Agreement (subject to the qualifications with
respect to matters of enforceability set forth below in the last paragraph of
this Exhibit C) that as of the date specified below or, if no such date is
specified, as of the date hereof, and as of the Closing Date and subject to the
exceptions disclosed on Schedule C-1 attached hereto:
(1) Mortgage Loan Characteristics. The information set forth in
the Mortgage Loan Schedule is true, correct and complete in all material
respects; provided, however, that with respect to the information set forth with
respect to each Mortgage Loan under the captions "Physical Occupancy %,"
"Occupancy As of Date," "1998 NOI," "1999 NOI," "Underwritten NOI,"
"Underwritten Net Cash Flow" and "Underwritten NOI DSCR," the Seller represents
only that such information is a correct and accurate reproduction or derivation,
as adjusted by the Seller in accordance with its customary underwriting
practices and procedures, of the information provided to it by the related
Borrower (or an affiliate or principal thereof) and takes no responsibility for
the accuracy or completeness of any such information provided by the related
Borrower (or such affiliate or principal); provided, further, that the Seller
has no actual knowledge that such information is incorrect, inaccurate or
incomplete following the reasonable and customary due diligence performed by the
Seller in connection with its origination or purchase of the Mortgage Loans.
(2) Domestic Borrower. The related Borrower is an individual who is a
citizen of, or an entity organized under the laws of, a state of the United
States of America.
(3) Single-Purpose, Bankruptcy Remote Entity. Each Borrower of a Mortgage
Loan in excess of $25,000,000 is an entity which has represented in connection
with the origination of the Mortgage Loan, and whose organizational documents as
of the date of origination of the Mortgage Loan provide that so long as the
Mortgage Loan is outstanding, it will be a single-purpose entity whose
activities and ability to incur debt are restricted by the applicable Mortgage
or the organizational documents in a manner intended to make the likelihood of
bankruptcy proceedings being commenced by or against such Borrower remote, and
as to which the Borrower has delivered an opinion of counsel concerning
substantive non-consolidation and as to which the Borrower has at least one
independent director. For this purpose, "single-purpose entity" shall mean a
Person, other than an individual, which does not engage in any business
unrelated to the related Mortgaged Property and its financing, does not have any
assets other than those related to its interest in such Mortgaged Property or
its financing, or any indebtedness other than as permitted by the related
Mortgage or the other Mortgage Loan documents, has its own books and records
separate and apart from any other Person and holds itself out as being a legal
entity, separate and apart from any other Person.
M-1-19
<PAGE> 450
(4) Delivery of Mortgage Loans Documents. The Seller has caused or will
cause to be delivered to the Purchaser (or its designee) within the time period
prescribed in Section 2 each of the documents comprising the Mortgage File for
such Mortgage Loan.
(5) Payment Current. All payments required to be made with respect to
such Mortgage Loan under the terms of the related Mortgage Note or the related
Mortgage (inclusive of any applicable grace or cure period) up to the Closing
Date have been made. Within the twelve months preceding the Closing Date, there
has not been any delinquency in excess of 30 days with respect to such Mortgage
Loan.
(6) Equity Participation or Participation Interest. Such Mortgage Loan
contains no equity participation by the Seller and is a whole loan and not a
participation interest. Neither the related Note nor the related Mortgage
provides for negative amortization, unless the Mortgage Loan is an ARD loan, or
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property. The Seller has no ownership interest in
such Mortgaged Property or the related Borrower other than in such Mortgage Loan
being sold and assigned. Neither the Seller nor any affiliate of the Seller has
any obligation to make any capital contributions to the related Borrower under
the Mortgage or any other related Mortgage Loan document.
(7) Compliance with Applicable Laws. As of the date of its origination,
such Mortgage Loan either complied with, or was exempt from, applicable federal
or state laws, regulations and other requirements pertaining to usury. To the
best of the Seller's knowledge, as of the date of origination of such Mortgage
Loan, the related originator complied in all material respects with the
requirements of any and all other federal, state or local laws applicable to the
origination, servicing and collection of such Mortgage Loan. No governmental or
regulatory approval or consent is required for the sale of such Mortgage Loan by
the Seller, and the Seller has full right, power and authority to sell such
Mortgage Loan. To the extent necessary to ensure the enforceability of such
Mortgage Loan and the effective sale, transfer and assignment thereof and of the
related Mortgage Note, the originator and/or the Seller and, if applicable, each
subsequent holder of the related Mortgage Note each was qualified and
appropriately licensed to transact business in the jurisdiction in which the
related Mortgaged Property is located at the time such entity had possession of
the related Mortgage Note.
(8) Proceeds Fully Disbursed. The proceeds of such Mortgage Loan have
been fully disbursed (although certain reserve accounts controlled by the Seller
may have been established as described in Schedule C-2), and there is no
requirement for future advances thereunder.
(9) Origination Expenses Paid. All costs, fees and expenses incurred in
connection with the origination and closing of such Mortgage Loan, including,
without limitation, recording costs and fees, have been paid to the appropriate
person or arrangements have been made for their payment to the appropriate
person on a timely basis by the related Borrower.
(10) Documents Valid. Each of the related Mortgage Note, the related
Mortgage and any other related Mortgage Loan document is the legal, valid and
binding obligation of the related Borrower, the related guarantor or other party
executing such document (subject to any
M-1-20
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non-recourse or partial recourse provisions contained therein), and is
enforceable in accordance with its terms. There is no valid offset, defense,
counterclaim or right of rescission with respect to such Mortgage Note, Mortgage
or any other Mortgage Loan document, nor will the operation of any of the terms
of such Mortgage Note or Mortgage, or the exercise of any right thereunder,
render either such Mortgage Note or Mortgage unenforceable or subject to any
valid offset, defense, counterclaim or right of rescission, including, without
limitation, the defense of usury, and the Seller has no knowledge that any such
offset, defense, counterclaim, or right of rescission has been asserted or is
available with respect thereto. Except as described in the immediately following
sentence, the related Mortgage Note and the related Mortgage do not require the
related mortgagee to release any portion of the related Mortgaged Property
except upon payment in full of such Mortgage Loan or the exercise of a
defeasance feature. In the case of certain Mortgaged Properties securing
cross-collateralized Mortgage Loans, certain Mortgage Loans secured by multiple
Mortgaged Properties, and certain Mortgage Loans secured by one or more parcels
constituting a single Mortgaged Property, the related mortgagee may be required
to release a Mortgaged Property or a portion thereof upon payment of a portion
of the related Mortgage Loan as specified in the related Mortgage Loan
documents.
(11) Assignment of Mortgage; Note Endorsement. The related Assignment of
Mortgage (but for the insertion of the name of the assignee and any related
recording information which is not yet available to the Seller) is or will be in
recordable form and constitutes or will constitute the Seller's legal, valid and
binding assignment to the Purchaser of the related Mortgage and any related
Assignment of Leases or assignment of Assignment of Leases. The Seller's
endorsement and delivery of the related Mortgage Note to the Purchaser in
accordance with the terms of this Agreement constitutes or will constitute the
Seller's legal, valid and binding assignment to the Purchaser of such Mortgage
Note, and together with the Seller's execution and delivery of such Assignment
of Mortgage to the Purchaser, legally and validly conveys or will convey all
right, title and interest of the Seller in such Mortgage Loan to the Purchaser.
Neither the related Mortgage Note nor the related Mortgage contain provisions
limiting the right or ability of Seller to assign, transfer and convey such
documents.
(12) Assignment of Leases. There exists as part of the related Mortgage
File an Assignment of Leases (either as a separate instrument or incorporated
into the related Mortgage); and such Assignment of Leases creates in favor of
the holder, a valid, perfected and (subject to the exceptions set forth in
paragraph 13 below) enforceable lien of the same priority as the related
Mortgage, in the property and rights described therein;
(13) First Lien. The related Mortgage is a legal, valid and enforceable
first lien on the related Mortgaged Property (including all buildings and
improvements on such Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems located in or annexed
to such buildings, and all additions, alterations and replacements made at any
time prior to the closing date of such Mortgage Loan with respect to the
foregoing, but excluding any related personal property) which Mortgaged Property
is free and clear of all liens and encumbrances having priority over or equal to
the first lien of such Mortgage, except for (a) the lien of current real estate
taxes and special assessments not yet delinquent or accruing interest or
penalties, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording of such Mortgage
which do not materially and adversely (i) affect the value of such Mortgaged
Property as security for such
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Mortgage Loan, or (ii) interfere with the related Borrower's ability to make
required interest and principal payments or to make use of such Mortgaged
Property for the intended purposes therefor, (c) leases and subleases pertaining
to such Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage (provided that such leases and subleases, if any,
are with entities which are not affiliated with the Seller), and (d) other
matters which do not, individually or in the aggregate, materially and adversely
(i) affect the value of such Mortgaged Property as security for such Mortgage
Loan, or (ii) interfere with the related Borrower's ability to make required
principal and interest payments or to make use of such Mortgaged Property for
the intended purposes therefor. Subject to the foregoing exceptions, the related
Assignment of Leases has the same priority as the related Mortgage.
(14) No Modification, Release or Satisfaction. Except by a written
instrument which has been delivered to the Purchaser or its designee as a part
of the related Mortgage File, (a) neither the related Note nor the related
Mortgage (including any amendments or supplements thereto included in the
related Mortgage File, none of which alter the information on the Mortgage Loan
Schedule or make any of the other representations in this Agreement untrue) has
been impaired, waived, modified, altered, satisfied, canceled or subordinated or
rescinded, (b) the related Mortgaged Property has not been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in any part, in each such event
in a manner which would materially interfere with the benefits of the security
intended to be provided by such Mortgage.
(15) Defeasance. A Mortgage Loan which permits defeasance provides that,
no earlier than the second anniversary of the Closing Date (or, in the case of
any Mortgage Loan included in its own Loan REMIC, no earlier than the second
anniversary of the "startup day" of such Loan REMIC), the related Borrower may
obtain the release of all or a portion of the related Mortgaged Property from
the lien of the related Mortgage upon the pledge to the Trustee of non-callable
U.S. Treasury or other non-callable U.S. government obligations that provide for
payments on or prior to all successive payment dates to maturity (or, in the
case of an ARD Loan, through the related Anticipated Repayment Date) in the
amounts due on such dates and upon the satisfaction of certain other conditions.
A Mortgage Loan that permits defeasance provides that related Borrower is
responsible for all reasonable costs incurred in connection with the defeasance
of any such Mortgage Loan and the release of the related Mortgaged Property. A
Mortgage Loan that permits defeasance provides that the related Borrower is
responsible for all cots incurred in connection with the defeasance of such
Mortgage Loan and the release of the related Mortgage Property. A Mortgage Loan
that permits defeasance requires that a first priority perfected security
interest opinion be provided and also requires the related Borrower to provide
either a REMIC opinion, as a condition to exercise of any defeasance option or a
written confirmation from the Rating Agencies indicating that such defeasance
will not result in a reduction, withdrawal or qualification of the respective
ratings of any outstanding Classes of Certificates. For all loans with a Cut-off
Date Balance over $5,000,000, as a condition to the exercise of any defeasance
option, either rating agency confirmation or lender approval is required. In
addition, the related Mortgage or other related Mortgage Loan documents
generally require the satisfaction of one or more of the following conditions
prior to the defeasance of the Mortgage Loan and release of the related
Mortgaged Property:
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(a) the related Borrower must provide the mortgagee with a prior
written notice of not less than 30 days;
(b) the related Borrower must either (i) deliver to the mortgagee
or the servicer of the Mortgage Loan, as the case may be, government
obligations described above in this Paragraph 15 or (ii) pay to the
mortgagee or the servicer of the Mortgage Loan, as the case may be, an
amount sufficient to purchase the government obligations described above
in this Paragraph 15;
(c) the related Borrower must deliver an officer's certificate to
the effect that all of its obligations with respect to the Mortgage Loan
have been satisfied and that the Mortgage Loan is not in default; and
(d) the related Borrower must undertake to provide such other
documents or information as the mortgagee may reasonably request in
connection with such defeasance.
(16) No Delinquent Taxes or Assessments. All tax or governmental
assessments, or installments thereof, which were due on or prior to the date of
origination had been paid as of such date and the Seller knows of no tax or
governmental assessment, or if payable in installments, any installment thereof,
which became due and owing thereafter and prior to the Closing Date in respect
of the related Mortgaged Property, which, if left unpaid, would be, or might
become, a lien on such Mortgaged Property having priority over the related
Mortgage which has become delinquent such that (a) such tax, assessment or
installment has commenced to accrue interest or penalties, or (b) the applicable
taxing authority may commence proceedings to collect such tax, assessment or
installment, as applicable.
(17) Escrow or Reserve Deposits. As of the Closing Date, the related
reserve account(s), if any, contain all escrow deposits and other payments
required by the terms of the related Mortgage Loan documents (inclusive of any
applicable grace or cure period) to be held by the Seller as of the Closing
Date. Pursuant to Section 2 hereof, the Seller is transferring all amounts on
deposit in the related reserve account(s) to the Purchaser, or to the extent not
being transferred to the Purchaser, all escrow deposits and other payments
required under the related Mortgage Note, the related Mortgage and any other
related Mortgage Loan documents have been applied in accordance with their
intended purposes by the related Mortgage Loan originator, the Seller or its
agent.
(18) No Third Party Advances. The Seller has not, directly or indirectly,
(a) advanced funds, (b) induced or solicited any payment from a Person other
than the related Borrower, or (c) to the Seller's knowledge, received any
payment other than from such Borrower, for the payment of any amount required
under the related Mortgage Note or the related Mortgage, except for interest
accruing from the date of such Mortgage Note or the date of disbursement of the
proceeds of such Mortgage Loan, whichever is later, to the date which precedes
by 30 days the first Due Date under such Mortgage Note.
(19) No Condemnation or Damages. To the best of the Seller's knowledge,
no proceedings for the total or partial condemnation of the related Mortgaged
Property (a) have
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occurred since the date as of which the appraisal relied upon in the origination
of such Mortgage Loan was prepared, or (b) are pending or threatened other than,
in each such case, proceedings as to partial condemnation which do not
materially and adversely affect the value of such Mortgaged Property as security
for such Mortgage Loan. To the best of Seller's knowledge, the related Mortgaged
Property is free of material damage. The related Mortgage requires that any
related condemnation award and/or insurance proceeds be applied either to the
restoration of the related Mortgaged Property or to the payment of the
outstanding principal balance of or accrued interest on such Mortgage Loan.
(20) No Mechanics' Liens. To the Seller's knowledge, the related
Mortgaged Property (excluding any related personal property) (a) is free and
clear of any mechanics' and materialmen's liens or liens in the nature thereof,
and (b) no rights are outstanding that, under applicable law, could give rise to
any of these types of liens, any of which liens are or may be prior to, or equal
with, the lien of the related Mortgage, except, with respect to clauses (a) and
(b) above in this Paragraph 20, those which are insured against by the related
lender's title insurance policy referred to in Paragraph 24 of this Exhibit C
below.
(21) Title Survey: Improvements; Separate Tax Parcels. The Seller has
delivered an as-built survey, a survey recertification, a site plan, a recorded
plat or the like with respect to the related Mortgaged Property which satisfied,
or the Seller otherwise satisfied, the requirements of the related title
insurance company for deletion of the standard general exceptions for
encroachments, boundary and other survey matters and for easements not shown by
the public records from the related title insurance policy, except with respect
to any related Mortgaged Property located in a jurisdiction (such as the State
of Texas where survey title insurance coverage is prohibited by law) in which
the exception for easements not shown by the public records could not be deleted
and such standard general exception is customarily accepted by prudent
commercial mortgage lenders in such jurisdiction. The property described in the
survey is the same as the Mortgaged Property described in the Mortgage and the
lender's title insurance policy. Except for encroachments and similar matters
which are inconsequential, do not materially and adversely affect the value of
such Mortgaged Property as security for such Mortgage Loan, or are insured
against by the related lender's title insurance policy described in Paragraph 24
of this Exhibit C below, surveys and/or title insurance obtained at the time of
the origination of such Mortgage Loan indicated or insured that (a) none of the
improvements which were included for the purpose of determining the appraised
value of such Mortgaged Property in the related appraisal obtained in connection
with of the origination of such Mortgage Loan lie outside the boundaries and
building restriction lines of such Mortgaged Property, and (b) no improvements
on adjoining properties encroach upon such Mortgaged Property. The related
Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related lender's title insurance policy. No
one other than the related Borrower, any guarantor or indemnitor, any tenants
under the requirements of tenant leases or (if it escrows real estate taxes) the
related mortgagee is obligated under the related Mortgage Loan documents to pay
real estate taxes on the Mortgaged Property.
(22) Title. The Seller has good and marketable title to and is the sole
and lawful owner and beneficial holder of such Mortgage Loan. The Seller has
full power, authority and legal right to sell and assign such Mortgage Loan
hereunder, is the sole mortgagee or beneficiary of record under the related
Mortgage and is transferring such Mortgage Loan to the Purchaser
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free and clear of any and all liens, encumbrances, participation interests,
pledges, charges or security interests of any nature encumbering such Mortgage
Loan.
(23) Compliance with Laws. To the best of the Seller's knowledge (based
upon a letter or letters from governmental authorities, a legal opinion, an
endorsement or endorsements to the related title insurance policy, a
representation of the related Borrower at the time of origination of such
Mortgage Loan or other information reasonably acceptable to the Seller based on
the Seller's underwriting standards at the time of its origination thereof), (a)
no improvements located on or forming a part of the related Mortgaged Property
are in violation of any applicable zoning and building laws or ordinances, (b)
the related Mortgaged Property complies with all other laws and regulations
pertaining to the use and occupancy thereof (excluding Environmental Laws which
are addressed in Paragraph 35 and Paragraph 36 below) and all applicable
insurance requirements, (c) such Borrower has obtained all inspections,
licenses, permits, authorizations, and certificates necessary for such
compliance, including, but not limited to, certificates of occupancy (if
available), and (d) the Seller has not received notification from any
governmental authority that such Mortgaged Property violates or does not comply
with such laws or regulations or is being used, operated or occupied unlawfully
or that such Borrower has failed to obtain such inspections, licenses, permits,
authorizations, or certificates, except for such violation or non-compliance (i)
which does not materially and adversely affect the value of such Mortgaged
Property as security for such Mortgage Loan or the use for which such Mortgaged
Property was intended at the time of origination of such Mortgage Loan, (ii)
which is specifically addressed by the appraiser in the determination of the
related appraised value in connection with the origination of such Mortgage
Loan, or (iii) for which a reserve account held for the Seller has been
established in an amount sufficient to pay for the estimated costs to correct
such violations or non-compliance.
(24) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy or, if an ALTA lender's title insurance
policy is unavailable, another state-approved form of lender's title insurance
policy issued in an amount not less than the stated principal amount of such
Mortgage Loan (after all advances of principal) insuring the Seller and its
successors and assigns that the related Mortgage is a valid first lien on the
related Mortgaged Property, subject only to exceptions described in Paragraph 13
of this Exhibit C above (or, if such a title insurance policy has not yet been
issued in respect of such Mortgage Loan, such a policy will be issued and is
currently evidenced by a pro forma or specimen policy or by a "marked-up"
commitment for title insurance which was furnished by the related title
insurance company for purposes of closing such Mortgage Loan). The premium for
such title insurance policy has been paid in full and such title insurance
policy is (or, when issued, will be) in full force and effect, and upon
endorsement and delivery of the related Mortgage Note to the Purchaser and
recording of the related Assignment of Mortgage in favor of the Purchaser in the
applicable real estate records, such title insurance policy will inure to the
benefit of the Purchaser. Such title insurance policy (a) does not contain the
standard general exceptions for encroachments, boundary or other survey matters
and for easements not shown by the public records, other than matters which do
not materially and adversely (i) affect the value of the related Mortgaged
Property as security for the Mortgage Loan, or (ii) interfere with the related
Borrower's ability to make required principal and interest payments or to make
use of such Mortgaged Property for the intended purposes, and (b) only contains
such exceptions for encroachments, boundary and other survey matters as are
customarily accepted by prudent
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commercial mortgage lenders. The Seller and its agents have not taken, or failed
to take, any action that would materially impair the coverage benefits of any
such title insurance policy. The Seller has not made any claim under such title
insurance policy.
(25) Insurance Related to Mortgaged Property. All improvements on the
related Mortgaged Property are insured by (a) a fire and extended perils
insurance policy providing coverage on a full replacement cost basis in an
amount not less than the lesser of (i) the full replacement cost of all
improvements to such Mortgaged Property (without deduction for depreciation),
and (ii) the outstanding principal balance of such Mortgage Loan, but in any
event in an amount sufficient to avoid the operation of any co-insurance
provisions contained in such insurance policy, which policy contains a standard
mortgagee clause naming the originator or the Seller and its successors as
additional insureds; (b) an insurance policy providing business interruption or
rental continuation coverage in an amount not less than the income anticipated
from 12 months of operations of such Mortgaged Property; (c) a comprehensive
general liability insurance policy in an amount not less than $1,000,000 per
occurrence; and (d) if any material improvement on such Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards under the National Flood Insurance Act of 1968, as
amended, a flood insurance policy providing coverage in an amount not less than
the lesser of (i) the stated principal amount of the related Mortgage Note, and
(ii) the maximum amount of insurance available under the Flood Disaster
Protection Act of 1973, as amended. As of the Closing Date, the insurance
premium for each such insurance policy shall have been paid or escrowed. Each
such insurance policy contains a clause providing that it is not terminable and
may not be reduced without 30 days' prior written notice to the mortgagee
(except that, in the event of nonpayment of insurance premiums, each such
insurance policy provides for termination upon not less than 10 days' prior
written notice), and no such notice has been received by the Seller. With
respect to each such insurance policy, the Seller has received a certificate of
insurance or similar document dated within the last 12 months to the effect that
such insurance policy is in full force and effect. The Seller has no knowledge
of any action, omission, misrepresentation, negligence or fraud which would
result in the failure of any such insurance policy. The related Mortgage Loan
documents require the related Borrower or a tenant of such Borrower to maintain
each such insurance policy at its expense, but authorizes the mortgagee to
maintain any such insurance policy at the related Borrower's expense upon such
Borrower's or such tenant's failure to do so (subject to any applicable notice
or cure periods). The related Mortgage and insurance policy require that any
related insurance proceeds, in excess of a specified amount, will be applied
either to the repair or restoration of all or part of the related Mortgaged
Property or to the payment of the outstanding principal balance of or accrued
interest on such Mortgage Loan.
(26) UCC Financing Statements. One or more Uniform Commercial Code
financing statements covering all furniture, fixtures, equipment and other
personal property (a) which are collateral under the related Mortgage or under a
security or similar agreement executed and delivered in connection with such
Mortgage Loan, and (b) in which a security interest can be perfected by the
filing of Uniform Commercial Code financing statement(s) under applicable law,
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law a security interest in such furniture,
fixtures, equipment and other personal property.
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(27) Default, Breach and Acceleration. There is no material default,
breach, violation or event of acceleration existing under the related loan
agreement, related Mortgage Note or the related Mortgage, and the Seller has no
knowledge of any event (other than failure to make payments due but not yet
delinquent) 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 thereunder; provided that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Exhibit C. The
Seller has no knowledge, after performing at the time of origination of the
related Mortgage Loan due diligence customarily performed by prudent commercial
lenders at the time of such origination, that the related Borrower is a debtor
in any state or federal bankruptcy or insolvency proceeding.
(28) Customary Provisions. The related Mortgage Note, the related
Mortgage, and the related Assignment of Leases, together with applicable state
law, contain customary and enforceable provisions (including, without
limitation, those relating to receivers) such as to render the rights and
remedies of the holder thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby, including realization by judicial or, if
applicable, non-judicial foreclosure.
(29) Access Routes. (a) Surveys, title insurance reports, the title
insurance policy or other relevant documents contained in the related Mortgage
File indicate that at the time of origination of such Mortgage Loan the related
Borrower had sufficient rights with respect to amenities, ingress and egress and
similar matters identified in the appraisal of the related Mortgaged Property
obtained in connection with the origination of such Mortgage Loan, as being
critical to the appraised value thereof, and (b) such Mortgaged Property was
receiving services from public or private water, sewer and other utilities that
were adequate as of the date that the Mortgage Loan was originated, and none of
such services is subject to revocation as a result of a foreclosure or change in
ownership of an adjacent property.
(30) Mortgage Loans Secured by Ground Lease but Not Fee Interest. With
respect to each Mortgage Loan that is secured in whole or in part by the
interest of the related Borrower as lessee under a ground lease of all or a
portion of the related Mortgaged Property (a "Ground Lease"), but the related
fee interest in the portion of such Mortgaged Property covered by such Ground
Lease (the "Fee Interest") is not subject or subordinate to the lien of the
related Mortgage, the Seller hereby represents and warrants that:
(a) as of the Closing Date, such Ground Lease is in full force and
effect, and such Ground Lease or a memorandum thereof has been duly
recorded in the applicable real estate records and (i) such Ground Lease
(or the related estoppel letter or lender protection agreement between
the Seller and related lessor) does not prohibit the interest of the
related lessee thereunder from being encumbered by the related Mortgage
and does not restrict the use of the related Mortgaged Property of such
lessee in a manner that would interfere with the related Borrower's
ability to make required principal and interest payments or to make use
of such Mortgaged Property for the intended purposes, or a separate
written agreement permitting such encumbrance has been obtained, and (ii)
there have been no material changes in the terms of such Ground Lease
that would be
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binding on the mortgagee as successor to the lessee except
as set forth in written instruments which are part of the related
Mortgage File;
(b) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances securing indebtedness which are superior to, or
of equal priority with, the related Mortgage, except for liens of current
real estate taxes and special assessments not yet delinquent or accruing
interest or penalties;
(c) the related lessee's interest in such Ground Lease may be
transferred to the Purchaser and its successors and assigns through a
foreclosure of the related Mortgage or conveyance in lieu of foreclosure
and, thereafter, may be transferred to another Person by the related
mortgagee and its successors and assigns, upon notice to, but without the
consent of, the related lessor (or, if any such consent is required,
either (i) it has been obtained prior to the Closing Date, or (ii) it may
not be unreasonably withheld), provided that such Ground Lease has not
been terminated and all amounts owed thereunder have been paid;
(d) the related lessor is required to give notice of any default
under such Ground Lease by the related lessee to the mortgagee either
under the terms of such Ground Lease or under the terms of a separate
estoppel letter or written agreement;
(e) the related mortgagee is entitled, under the terms of such
Ground Lease or a separate estoppel letter or written agreement, to
receive notice of any default by the related lessee under such Ground
Lease, and after any default notice, is entitled to not less than the
time provided to the related lessee under such Ground Lease to cure such
default (which is, in any event, a commercially reasonable time period),
which is curable during such period before the lessor may terminate the
Ground Lease; all rights of the related lessee under the Ground Lease may
be exercised by or on behalf of the mortgagee;
(f) the currently effective term of such Ground Lease (excluding
any extension or renewal which is not binding on the lessor thereunder)
extends not less than 20 years beyond the Stated Maturity Date of such
Mortgage Loan;
(g) such Ground Lease does not impose any restrictions on
subletting which the Seller considered to be commercially unreasonable at
the time of its origination or purchase of such Mortgage Loan or that a
prudent commercial mortgage lender would have considered unreasonable at
such date;
(h) as of the Closing Date, (i) no event of default has occurred
under such Ground Lease and (ii) to Seller's knowledge, no event has
occurred which, with the passage of time, the giving of notice or both
(other than rental or other payments being due, but not yet delinquent),
would result in a default or an event of default under the terms of such
Ground Lease;
(i) the related lessor has agreed in a writing included in the
related Mortgage File that such Ground Lease may not be amended,
modified, cancelled or
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terminated without the prior written consent of the Seller or the
mortgagee and that any such action without such consent is not binding
upon the mortgagee, its successors and assigns. Unless the mortgagee
fails to cure a default of the lessee under the Ground Lease following
notice thereof from the lessor as set forth in clause (e) of this
Paragraph 29, the lessor is required to enter into a new ground lease
upon termination of such Ground Lease for any reason (including, without
limitation, rejection of such Ground Lease in a bankruptcy proceeding);
(j) under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or taking)
will be applied either to (i) the repair or restoration of all or part of
the related Mortgaged Property covered by such Ground Lease, with the
mortgagee or a trustee appointed by it having the right to hold and
disburse such proceeds as such repair or restoration progresses (except
where such Mortgage Loan provides that the related Borrower or its agent
may hold and disburse such proceeds with respect to any loss or taking
less than a stipulated amount not greater than $50,000), or (ii) the
payment of the outstanding principal balance of and accrued interest on
such Mortgage Loan; and
(k) there are no existing mortgages on the Fee Interest which can
be foreclosed upon that are not subject to the Ground Lease, and the
provisions of the Ground Lease and/or other documents related thereto and
included as part of the related Mortgage File preclude the creation of
any future mortgage on the Fee Interest that can be foreclosed upon not
subject to the Ground Lease.
(l) except for fixed or determinable increases expressly set forth
in such Ground Lease, such Ground Lease does not permit any increase in
the amount of rent payable by the ground lessee during the term of the
Mortgage Loan.
(m) the terms of any related Ground Lease have not been waived,
modified, altered, satisfied, impaired, cancelled, subordinated, or
rescinded in any manner which materially interferes with the security
intended to be provided by the related Mortgage.
(31) Deed of Trust. With respect to any related Mortgage that is a deed
of trust or trust deed, a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and currently so serves or may be
substituted in accordance with applicable law. Except in connection with (a) a
trustee's sale after default by the related Borrower or (b) the release of the
related Mortgaged Property following the payment of the related Mortgage Loan in
full, no fees or expenses are payable by the Seller or the Purchaser to such
trustee.
(32) Cross-Security. The related Mortgaged Property is not collateral or
security for the payment or performance of (a) any other obligations owed to the
originator of such Mortgage Loan or the Seller other than another Mortgage Loan
being sold, transferred and assigned by the Seller under this Agreement, or (b)
to the Seller's knowledge, any other obligations owed to any Person other than
the Seller. The related Mortgage Note is not secured by any real property other
than a Mortgaged Property. Each related Mortgage does not provide or permit,
without the
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prior written consent of the holder of the Mortgage Note, each related Mortgaged
Property to secure any other promissory note or obligation, other than any other
Mortgage Loan.
(33) Assignment of Leases. Except with respect to the related Mortgaged
Property or that portion of the related Mortgaged Property that is occupied by
the related Borrower, the related Mortgage Loan documents contain the provisions
of an Assignment of Leases or include a separate Assignment of Leases. Any
related Assignment of Leases incorporated within the related Mortgage or set
forth in a separate Mortgage Loan document creates on recordation (with the same
priority as the related Mortgage) a valid assignment of, or security interest
in, the right to receive all payments due under the related leases, if any.
(34) REMIC. (a) Such Mortgage Loan is principally secured by an interest
in real property and either (i) the fair market value of such real property was
at least equal to 80% of the adjusted issue price of such Mortgage Loan on the
date of origination of such Mortgage Loan or, if such Mortgage Loan has been
"significantly modified" within the meaning of Section 1001 of the Code, on the
date of such modification (unless such modification may be disregarded under
Treas. Reg. Sec. 1.860G-2(b)(3)), or (ii) substantially all of the proceeds of
such Mortgage Loan were used to acquire or improve or protect an interest in
real property that, at origination of such Mortgage Loan, was the only security
for such Mortgage Loan; (b) such Mortgage Loan contains no equity participation
by the Seller, and neither the related Mortgage Note nor the related Mortgage
provides for any contingent or additional interest in the form of participation
in the cash flow or proceeds realized on disposition of the related Mortgaged
Property; and (c) such Mortgage Loan is a "qualified mortgage" as defined in,
and for purposes of, Section 860G(3)(A) of the Code and provides for the
payments of interest at a fixed rate or at a rate described in Treas. Reg. Sec.
1.860G-1(a)(3).
(35) Environmental Site Assessments. Environmental Site Assessments
(collectively, the "ESAs"), transaction screen assessments, studies or updates
prepared or obtained within [ ] months prior to the Closing Date in connection
with the origination of such Mortgage Loan identified no material adverse
environmental conditions or circumstances anticipated to require any material
expenditure with respect to any Mortgaged Property, except for: (a) those cases
where such conditions or circumstances were investigated further and, based upon
such additional investigation, a qualified environmental consultant recommended
no further investigation or remediation; (b) those cases in which an operations
and maintenance plan was recommended by the environmental consultant and such
plan was obtained or an escrow reserve established to cover the estimated costs
of obtaining such plan; (c) those conditions in which soil or groundwater
contamination was suspected or identified and either (i) such condition or
circumstance was remediated or abated prior to the date of closing of the
related Mortgage Loan, (ii) a "no further action" letter was obtained from the
applicable regulatory authority, or (iii) either an environmental insurance
policy was obtained, a letter of credit provided, an escrow reserve account
established, or an indemnity from the responsible party was obtained, to cover
the estimated costs of any required investigation, testing, monitoring or
remediation; or (d) those cases in which (i) a leaking underground storage tank
or groundwater contamination was identified to be located on or to have
originated from an offsite property, (ii) a responsible party has been
identified under applicable law, and (iii) either such condition is not known to
have affected the Mortgaged Property or the responsible party has either
received a "no further action"
M-1-30
<PAGE> 461
letter from the applicable regulatory agency, established a remediation fund, or
provided a guaranty or indemnity to the related Borrower.
(36) Notice of Environmental Problem. Other than with respect to any
conditions identified in the ESAs, transaction screen assessments, studies or
updates referred to in Paragraph 34 of this Exhibit C above, the Seller: (a) has
not received actual notice from any federal, state or other governmental
authority of (i) any failure of the related Mortgaged Property to comply with
any applicable Environmental Laws, or (ii) any known or threatened release of
Hazardous Materials on or from such Mortgaged Property in violation of any
applicable Environmental Laws; (b) has not received actual notice from the
related Borrower that (i) such Borrower has received any such notice from any
such governmental authority, (ii) such Mortgaged Property fails to comply with
any applicable Environmental Laws, or (iii) such Borrower has received actual
notice that there is any known or threatened release of Hazardous Materials on
or from such Mortgaged Property in violation of any applicable Environmental
Laws; or (c) has no actual knowledge that (i) the related Mortgaged Property
fails to materially comply with any applicable Environmental Laws or (ii) there
has been any known or threatened release of Hazardous Materials on or from such
Mortgaged Property where such release falls outside the exceptions (a) through
(d) of Paragraph 35 of this Exhibit C above.
(37) Recourse. The related Mortgage Loan documents contain standard
provisions providing for recourse against the related Borrower or a principal of
such Borrower for damages sustained in connection with the Borrower's fraud,
material misrepresentation or misappropriation of any tenant security deposits,
rent, insurance proceeds or condemnation proceeds. The related Mortgage Loan
documents contain provisions pursuant to which the related Borrower or a
principal of such Borrower has agreed to indemnify the mortgagee for damages
resulting from violations of any applicable Environmental Laws.
(38) Environmental Compliance. Each Mortgage Loan contains either a
representation, warranty or covenant that the related Borrower will not use,
cause or permit to exist on the related Mortgaged Property any Hazardous
Materials in violation of any applicable Environmental Laws or an indemnity with
respect to any such violation in favor of the Seller.
(39) Inspection. The Seller or originator has inspected the related
Mortgaged Property or caused such Mortgaged Property to be inspected within the
12 months preceding the Closing Date.
(40) Subordinate Debt. Except as has been disclosed in the Mortgage Loan
Schedule, the related Mortgage contains a provision for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan in the event that
the related Borrower encumbers the related Mortgaged Property without the prior
written consent of the mortgagee thereunder. At the time of origination, the
Mortgaged properties were not, and to the Seller's knowledge, the Mortgaged
Properties are not encumbered by any liens junior to the liens of the related
Mortgages. The Mortgage Loans do not permit the Borrowers to obtain financing
secured by the Mortgaged Properties that is subordinate to or of equal priority
with the lien of the Mortgage without lender's consent.
M-1-31
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(41) Common Ownership. To Seller's knowledge, no two properties securing
Mortgage Loans are directly or indirectly under common ownership except to the
extent that such common ownership and the ownership structure have been
specifically disclosed in Schedule C-3.
(42) Operating or Financial Statement. The related Mortgage Loan
documents require the related Borrower to furnish to the mortgagee at least
annually an operating statement (or a balance sheet and a statement of income
and expenses) with respect to the related Mortgaged Property or, in the case of
a borrower-occupied Mortgaged Property, a financial statement with respect to
the related Borrower.
(43) Litigation. To the best of the Seller's knowledge as of the date of
origination or purchase of such Mortgage Loan, and to the Seller's knowledge
thereafter, there is no pending action, suit, proceeding, arbitration or
governmental investigation with respect to the related Borrower or Mortgaged
Property which if determined adversely to the related Borrower would have a
material adverse effect on the value of the related Mortgaged Property or such
Borrower's ability to continue to perform its obligations under such Mortgage
Loan.
(44) ARD Loans. With respect to each Mortgage Loan that is an ARD Loan,
it commenced amortizing on its initial scheduled Due Date (or, in the case of
certain interest-only Mortgage Loans, as otherwise set forth in the related
Mortgage Notes) and provides that: (a) the spread used in calculating its
Mortgage Rate will increase by no more than five percent (5%) in connection with
the passage of its Anticipated Repayment Date; (b) its Anticipated Repayment
Date is of the term specified [in the Mortgage Loan Schedule] following the
origination of such Mortgage Loan; (c) no later than the related Anticipated
Repayment Date, if it has not previously done so, the related Borrower is
required to enter into a "lockbox agreement" whereby all revenue from the
related Mortgaged Property shall be deposited directly into a designated account
controlled by the Servicer; and (d) any cash flow from the related Mortgaged
Property that is applied to amortize such Mortgage Loan following its
Anticipated Repayment Date shall, to the extent such net cash flow is in excess
of the Monthly Payment payable therefrom, be net of budgeted and discretionary
(lender approved) capital expenditures.
(45) Due-on-Sale. The related Mortgage contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
mortgagee, the related Mortgaged Property subject to such Mortgage is directly
or indirectly transferred or sold; provided that certain of the Mortgages permit
(a) changes in ownership between existing partners and members, (b) transfers to
family members (or trusts for the benefit of family members), affiliated
companies and certain specified individuals and entities, (c) issuance by the
related borrower of new partnership or membership interests, (d) certain other
changes in ownership for estate planning purposes, or (e) certain other
transfers similar in nature to the foregoing that are consistent with customary
commercial lending practices.
(46) Loan Origination; Loan Underwriting. Each Mortgage Loan was
originated by the Seller, an affiliate of Seller or an originator approved by
the Seller, or was purchased by the related Seller, and each Mortgage Loan
substantially complied with all of the terms, conditions
M-1-32
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and requirements of the Seller's underwriting standards in effect at the time of
its origination or purchase of such Mortgage Loan, subject to such exceptions as
the Seller approved.
(47) Interest Accrual. Each related 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).
(48) Cut-off Date Balance. No Mortgage Loan, together with any other
Mortgage Loan made to the same Borrower or to an Affiliate of such Borrower,
represents more than 5% of the aggregate Cut-off Date Balance of the Mortgage
Pool.
(49) Due Date. The Due Date for each Mortgage Loan is scheduled to be the
first day of the month (or the following business day, if such first day is not
a business day).
(50) Appraisal. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of such Mortgage Loan. 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.
(51) No Release. No Mortgage Loan has been satisfied in full, and except
as expressly contemplated by the related loan agreement or other documents
contained in the related file, no material portion of the Mortgaged Property has
been released.
Each representation and warranty of the Seller set forth in
this Exhibit C, to the extent related to the enforceability of any instrument,
agreement or other document or as to offsets, defenses, counterclaims or rights
of rescission related to such enforceability, is qualified to the extent that
(a) enforcement may be limited (i) by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally as from time to time in effect, (ii) by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and (iii) by any applicable anti-deficiency law or statute; and (b)
such instrument, agreement or other document may contain certain provisions
which may be unenforceable in accordance with their terms, in whole or in part,
but the unenforceability of such provisions will not (subject to the
qualification in clause (a) above) (i) cause the related Mortgage Note or the
related Mortgage to be void in their entirety, (ii) invalidate the related
Borrower's obligation to pay interest at the stated interest rate of such
Mortgage Note on, and repay the principal of, the related Mortgage Loan in
accordance with the payment terms of such Mortgage Note, such Mortgage and other
written agreements delivered to the Seller in connection therewith, (iii)
invalidate the obligation of any related guarantor to pay guaranteed obligations
with respect to interest at the stated interest rate of such Note on, and the
principal of, such Mortgage Loan in accordance with the payment terms of such
guarantor's
M-1-33
<PAGE> 464
written guaranty, (iv) impair the mortgagee's right to accelerate and demand
payment of interest at the stated interest rate of such Mortgage Note on, and
principal of, such Mortgage Loan upon the occurrence of a legally enforceable
default, or (v) impair the mortgagee's right to realize against the related
Mortgaged Property by judicial or, if applicable, non-judicial foreclosure.
M-1-34
<PAGE> 465
SCHEDULE C-1
EXCEPTIONS TO THE MORTGAGE LOAN
REPRESENTATIONS AND WARRANTIES
SECTION 19. Representations #17, 27. Loan #6604917 (Kmart - Salt Lake).
The Borrower had until August 10, 2000, to submit and have Lender approve an O&M
Plan. That deadline was extended to November 15, 2000. Borrower has currently
submitted a plan that is in the process of being revised. A Six Hundred and
Fifty Dollar ($650.00) deposit was established at closing and is to be released
upon Lender's approval of the O&M Plan.
SECTION 20. Representations #17, 27. Loan #6605130 (225 Long Ave.). The
Borrower had until August 20, 2000, to complete ADA required repairs. These
repairs have not yet been completed. A Seven Thousand Five Hundred Dollar
($7,500.00) reserve was established at closing and is to be released upon the
completion of these repairs.
SECTION 21. Representation #25. Loan #6604021 (Kmart - Salem) and Loan
#6604917 (Kmart - Salt Lake City). Kmart is allowed to self-insure at any time
while either: (i) Kmart's net worth exceeds One Hundred Million Dollars
($100,000,000), or (ii) Kmart's market capitalization exceeds One Billion
Dollars ($1,000,000,000).
M-1-35
<PAGE> 466
SCHEDULE C-2
RESERVE ACCOUNTS CONTROLLED BY SELLER
<PAGE> 467
SCHEDULE C-3
PROPERTIES UNDER COMMON OWNERSHIP
<PAGE> 468
EXHIBIT D-1
FORM OF CERTIFICATE OF A SECRETARY
OR ASSISTANT SECRETARY OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C3
CERTIFICATE OF SECRETARY OF SALOMON BROTHERS REALTY CORP.
I, Andrew W. Alter, hereby certify that I am a duly elected and
acting Assistant Secretary of Salomon Brothers Realty Corp. (the "Company"), and
certify further as follows:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of New York;
2. Attached hereto as Exhibit A is a true, correct and complete
copy of the organizational documents of the Company, as in full force and effect
on the date hereof;
3. Attached hereto as Exhibit B is a certificate of the
Secretary of State of the State of New York issued within ten days of the date
hereof with respect to the good standing of the Company;
4. Since the date of the good standing certificate referred to
in clause 3 above, the Company has not received any notification from the
Secretary of State of New York, or from any other source, that the Company is
not in good standing in New York.
5. Attached hereto as Exhibit C are the resolutions of the
board of directors of the Company authorizing the transactions contemplated by
the Mortgage Loan Purchase Agreement dated as of December , 2000 (the "Mortgage
Loan Purchase Agreement"), between Salomon Brothers Mortgage Securities VII,
Inc. ("SBMS VII") and the Company, including the sale of the subject mortgage
loans (the "Mortgage Loans") by the Company to SBMS VII. Such resolutions are in
full force and effect on the date hereof and are not in conflict with any other
resolutions of the board of directors of the Company in effect on the date
hereof.
6. The Mortgage Loans do not constitute all or substantially
all of the assets of the Company.
7. To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Company are pending or contemplated.
8. Each person who, as an officer or representative of the
Company, signed (a) the Mortgage Loan Purchase Agreement, (b) the
Indemnification Agreement dated as of December , 2000 (the "Indemnification
Agreement"), among the Company, SBMS VII, Salomon Smith Barney Inc., Greenwich
Capital Markets, Inc., Chase Securities Inc., Deutsche
M-1-36
<PAGE> 469
Bank Securities Inc., J.P. Morgan Securities Inc. and ABN AMRO Bank N.V., and
(c) any other document or certificate delivered on or before the date hereof in
connection with the transactions contemplated by the foregoing documents, was,
at the respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signature of such person appearing on any such document
is his or her genuine signature.
Capitalized terms used but not otherwise defined herein have
the respective meanings assigned to them in the Mortgage Loan Purchase Agreement
and, if not defined therein, then in the Indemnification Agreement.
[SIGNATURE PAGE FOLLOWS]
M-1-37
<PAGE> 470
IN WITNESS WHEREOF, I have hereunto signed my name as of
December , 2000.
By:
----------------------------------
Name: Andrew W. Alter
Title: Assistant Secretary
The undersigned, an officer of the Company, hereby certifies
that Andrew W. Alter is the duly elected and qualified and acting Assistant
Secretary of the Company and that the signature appearing above is his/her
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of
December , 2000.
By:
----------------------------------
Name: Angela M. Hutzel
Title: Authorized Agent
M-1-38
<PAGE> 471
EXHIBIT A
CERTIFICATE OF INCORPORATION AND BY-LAWS
M-1-39
<PAGE> 472
EXHIBIT B
CERTIFICATE OF GOOD STANDING
M-1-40
<PAGE> 473
EXHIBIT C
RESOLUTIONS
M-1-41
<PAGE> 474
UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
SALOMON BROTHERS REALTY CORP.
WITHOUT A MEETING
The undersigned, being all the Directors of Salomon Brothers
Realty Corp., a New York corporation (the "Corporation"), pursuant to Section
708(b) of the General Corporation Law of the State of New York, in lieu of
holding a meeting of the Board of Directors of the Corporation, do hereby
consent to the adoption of, and do hereby unanimously adopt, as of the date
hereof, the resolutions set forth below:
WHEREAS, the Corporation has from time to time originated or
acquired the various commercial mortgage loans identified on Schedule I attached
hereto (the "Mortgage Loans");
NOW, THEREFORE, IT IS RESOLVED, that the sale of Mortgage Loans
by the Corporation to Salomon Brothers Mortgage Securities VII, Inc. ("SBMS
VII") (or, at the direction of SBMS VII, to a trust established by SBMS VII), is
hereby approved;
RESOLVED, that the President or any Vice President, other
officer or director of the Corporation is hereby authorized to negotiate,
execute and deliver, in the name and on behalf of the Corporation, such mortgage
loan purchase and sale agreement, pooling and servicing agreement and/or similar
agreements as may be necessary to effect the intent and purpose of the foregoing
resolutions, in such form as any such officers or directors deem necessary or
advisable;
RESOLVED, that the President or any Vice President, other
officer or director of the Corporation is hereby authorized and directed to pay
any and all expenses and fees arising in connection with the sale of the
Mortgage Loans or otherwise in connection with these resolutions;
RESOLVED, that the corporate seal of the Corporation may be
affixed to any instrument or document executed pursuant to the foregoing
resolutions by impressing or affixing such corporate seal thereon or by
imprinting or otherwise reproducing thereon a facsimile of such corporate seal;
RESOLVED, that the President or any Vice President, other
officer or director of the Corporation is hereby authorized and directed to
negotiate, execute and deliver, in the name and on behalf of the Corporation,
any and all additional instruments, documents, or agreements and to take such
further action as to any of them appears necessary or desirable to carry into
effect the intent and purpose of the foregoing resolutions; and
RESOLVED, that any and all actions of the officers or directors
of the Corporation in connection with the matters contemplated by the foregoing
resolutions taken prior to the date hereof, be, and hereby are, approved,
ratified and adopted in all respects as fully as if
M-1-42
<PAGE> 475
such actions had been presented to this Board of Directors for its approval
prior to such actions being taken.
This Unanimous Written Consent of the Board of Directors can be
executed in counterparts, each of which shall be deemed to be an original and
all such counterparts shall constitute one and the same instrument.
Dated: December , 2000
--------------------------- ---------------------------------
Name: David D. Tibbals Name: Thomas G. Maheras
M-1-43
<PAGE> 476
SCHEDULE I
SEE ATTACHED LIST OF MORTGAGE LOANS
M-1-44
<PAGE> 477
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C3
CERTIFICATE OF SALOMON BROTHERS REALTY CORP.
In connection with the execution and delivery by Salomon
Brothers Realty Corp. ("SBRC") of, and the consummation of the various
transactions contemplated by, that certain Mortgage Loan Purchase Agreement
dated as of December 12, 2000 (the "Mortgage Loan Purchase Agreement"), between
Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII") and SBRC, and the
Indemnification Agreement dated as of December 12, 2000 (the "Indemnification
Agreement"), among SBRC, SBMS VII, Salomon Smith Barney Inc., Greenwich Capital
Markets, Inc., Chase Securities Inc., Deutsche Bank Securities Inc., J.P. Morgan
Securities Inc. and ABN AMRO Bank N.V. (together, the Mortgage Loan Purchase
Agreement and the Indemnification Agreement are referred to herein as the
"Agreements"), the undersigned hereby certifies that (i) the representations and
warranties of SBRC in the Agreements are true and correct in all material
respects at and as of the date hereof (or, in the case of the representations
and warranties set forth in Exhibit C of the Mortgage Loan Purchase Agreement,
as of such other date specifically provided in the particular representation and
warranty) with the same effect as if made on the date hereof (or, in the case of
the representations and warranties set forth in Exhibit C of the Mortgage Loan
Purchase Agreement, on such other date specifically provided in the particular
representation and warranty), and (ii) SBRC has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part
required under the Mortgage Loan Purchase Agreement to be performed or satisfied
at or prior to the date hereof. Capitalized terms used but not otherwise defined
herein have the respective meanings assigned to them in the Mortgage Loan
Purchase Agreement and, if not defined therein, then in the Indemnification
Agreement.
Certified this day of December, 2000.
SALOMON BROTHERS REALTY CORP.
By:
------------------------------
Name: Angela M. Hutzel
Title: Authorized Agent
M-1-45
<PAGE> 478
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL
TO THE SELLER
__________, 2000
Addressees listed on Exhibit A hereto
Re: Salomon Brothers Mortgage Securities VII, Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
This opinion is being provided to you by _____________
pursuant to [Section 7(h)] the Mortgage Loan Purchase Agreement, dated as of
December __, 2000 (the "Mortgage Loan Purchase Agreement"), between Salomon
Brothers Mortgage Securities VII, Inc. ("SBMS VII") and _____________ (the
"Company"), relating to the sale by the Company of certain mortgage loans (the
"Mortgage Loans"). I have also acted as counsel to the Company in connection
with its entering into the Indemnification Agreement dated as of December __,
2000 (the "Indemnification Agreement"), among the Company, SBMS VII, Salomon
Smith Barney Inc., Greenwich Capital Markets, Inc., Chase Securities Inc.,
Deutsche Bank Securities Inc., J.P. Morgan Securities Inc. and ABN AMRO Bank
N.V. The Mortgage Loan Purchase Agreement and the Indemnification Agreement are
collectively referred to herein as the "Agreements". Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Mortgage Loan
Purchase Agreement.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such corporate records of the Company,
certificates of public officials, officers of the Company and other persons and
other documents, agreements and instruments and have made such other
investigations as I have deemed necessary or appropriate for purposes of this
opinion.
Based upon the foregoing, I am of the opinion that:
a. The Company is a validly existing ____________ in good standing under
the laws of ________________, with [corporate] power and authority
under such laws to enter into and perform its obligations under the
Agreements.
b. Each Agreement has been duly authorized, executed and delivered by the
Company.
c. No consent, approval, authorization or order of any court, governmental
agency or body is required in connection with the execution and
delivery by the Company of the Agreements, except for those consents,
approvals, authorizations or orders that previously have been obtained.
d. The transfer of the Mortgage Loans as provided in the Agreements and
the fulfillment of the other terms of the Agreements will not conflict
with or result in a violation of the [Certificate of Incorporation or
the By-laws] of the Company or any agreement, instrument, order, writ,
judgment or decree known to me to which the Company is a party or is
subject.
M-1-46
<PAGE> 479
e. To the best of my knowledge, there are no actions or proceedings
against the Company, pending (with regard to which the Company has
received service of process) or overtly threatened in writing before
any court, governmental agency or arbitrator which affect the
enforceability of the Agreements, or which would draw into question the
validity of the Agreements or any action taken or to be taken in
connection with the Company's obligations contemplated therein, or
which would materially impair the Company's ability to perform under
the terms of the Agreements.
The opinions expressed herein are limited to the laws of
_______________ and the federal law of the United States.
This opinion is given to you for your sole benefit, and no
other person or entity is entitled to rely hereon without my express written
consent.
Very truly yours,
M-1-47
<PAGE> 480
EXHIBIT D-3B
FORM OF OPINION OF SIDLEY & AUSTIN,
SPECIAL COUNSEL TO THE SELLER
S i d l e y & A u s t i n
a partnership including professional corporations
CHICAGO 875 THIRD AVENUE HONG KONG
DALLAS NEW YORK, NEW YORK 10022 LONDON
LOS ANGELES TELEPHONE 212 906 2000 SHANGHAI
WASHINGTON, D.C. FACSIMILE 212 906 2021 SINGAPORE
TOKYO
FOUNDED 1866
December 19, 2000
Salomon Brothers Mortgage ABN AMRO Bank N.V.
Securities VII, Inc. 135 South LaSalle Street
388 Greenwich Street Chicago, Illinois 60603
New York, New York 10013
Salomon Smith Barney Inc. Moody's Investors Service, Inc.
388 Greenwich Street 99 Church Street
New York, New York 10013 New York, New York 10007
Greenwich Capital Markets, Inc. Standard & Poor's Ratings Services
600 Steamboat Road 55 Water Street, 41st Floor
Greenwich, Connecticut 06830 New York, New York 10041
Chase Securities Inc. Salomon Brothers Realty Corp.
270 Park Avenue, 8th Floor 388 Greenwich Street
New York, New York 10017 New York, New York 10013
Deutsche Bank Securities Inc. Wells Fargo Bank Minnesota, N.A.
31 West 52nd Street, 3rd Floor 45 Broadway, 12th Floor
New York, New York 10019 New York, New York 10006
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-C3
M-1-47
<PAGE> 481
Ladies and Gentlemen:
We have acted as special counsel to Salomon Brothers Realty
Corp. ("SBRC") in connection with certain matters relating to the transactions
contemplated by that certain Mortgage Loan Purchase Agreement, dated as of
December 12, 2000 (the "Mortgage Loan Purchase Agreement"), between SBRC, as
seller, and Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII"), as
purchaser.
This opinion letter is being provided to you pursuant to
Section 7(h) of the Mortgage Loan Purchase Agreement. Capitalized terms not
defined herein have the respective meanings set forth in, or otherwise assigned
to them pursuant to, the Mortgage Loan Purchase Agreement.
For the purposes of this opinion letter, we have reviewed the
Mortgage Loan Purchase Agreement. In addition, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of such other
documents and records as we have deemed relevant or necessary as the basis for
the opinions contained in this letter; we have obtained such certificates from
and made such inquiries of officers and representatives of the parties to the
Mortgage Loan Purchase Agreement and public officials as we have deemed relevant
or necessary as the basis for such opinions; and we have relied upon, and
assumed the accuracy of, such other documents and records, such certificates and
the statements made in response to such inquiries, with respect to the factual
matters upon which such opinions are based. We have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters material to this opinion contained in the Mortgage Loan Purchase
Agreement, (ii) the legal capacity of natural persons, (iii) the genuineness of
all signatures, (iv) the authenticity of all documents submitted to us as
originals, (v) the conformity to authentic originals of all documents submitted
to us as certified, conformed or photostatic copies, (vi) the due organization
of the parties to the Mortgage Loan Purchase Agreement and the valid existence
of each such entity in good standing under the laws of its jurisdiction of
organization, (vii) except as expressly addressed in paragraph 2 below, the
power and authority of the parties to the Mortgage Loan Purchase Agreement to
enter into, perform under and consummate the transactions contemplated by the
Mortgage Loan Purchase Agreement, without any resulting conflict with or
violation of the organizational documents of any such party or with or of any
law, rule, regulation, order or decree applicable to any such party or its
assets, and without any resulting default under or breach of any other agreement
or instrument by which any such party is bound or which is applicable to it or
its assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Mortgage Loan Purchase Agreement by the parties
thereto, (ix) except as expressly addressed in paragraph 1 below, the
constitution of the Mortgage Loan Purchase Agreement as the legal, valid and
binding obligation of each party thereto, enforceable against such party in
accordance with its terms, and (x) the absence of any other agreement that
supplements or otherwise modifies the intentions and agreements of the parties
to the Mortgage Loan Purchase Agreement, as expressed therein.
In delivering this opinion letter, we do not express any
opinions concerning the laws of any jurisdiction other than the laws of the
State of New York and, where expressly referred to below, the federal laws of
the United States of America (without regard to conflicts of law principles). In
addition, we do not express any opinion with respect to the tax, securities or
M-1-48
<PAGE> 482
"doing business" laws of any particular jurisdiction or with respect to any
matter not expressly addressed below.
Our opinions set forth below with respect to the enforceability
of any agreement or any particular right or obligation under any agreement are
subject to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Mortgage Loan Purchase Agreement constitutes a valid,
legal and binding agreement of SBRC, enforceable against SBRC in accordance with
its terms.
2. The execution, delivery and performance of the Mortgage Loan
Purchase Agreement by SBRC will not conflict with or result in a violation of
any federal or State of New York statute or regulation generally applicable to
domestic corporations in connection with transactions of the type contemplated
by the Mortgage Loan Purchase Agreement.
The opinions expressed herein are being delivered to you as of
the date hereof, and we assume no obligation to advise you of any changes of law
or fact that may occur after the
M-1-49
<PAGE> 483
date hereof, notwithstanding that such changes may affect the legal analysis or
conclusions contained herein. This opinion letter is being delivered solely for
your benefit in connection with the transactions contemplated by the Mortgage
Loan Purchase Agreement. Accordingly, it may not be quoted, filed with any
governmental authority or other regulatory agency or otherwise circulated or
utilized for any other purpose without our prior written consent.
Very truly yours,
M-1-50
<PAGE> 484
EXHIBIT D-3C
FORM OF LETTER RELATING
TO DISCLOSURE FROM SIDLEY & AUSTIN,
SPECIAL COUNSEL TO THE SELLER
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
CHICAGO 875 THIRD AVENUE HONG KONG
NEW YORK, NEW YORK 10022
DALLAS TELEPHONE 212 906 2000 LONDON
FACSIMILE 212 906 2021
LOS ANGELES SHANGHAI
SEATTLE FOUNDED 1866 SINGAPORE
WASHINGTON, D.C. TOKYO
December 19, 2000
Salomon Brothers Mortgage Deutsche Bank Securities Inc.
Securities VII, Inc. 31 West 52nd Street, 3rd Floor
388 Greenwich Street New York, New York 10019
New York, New York 10013
Salomon Smith Barney Inc. J.P. Morgan Securities Inc.
388 Greenwich Street 60 Wall Street
New York, New York 10013 New York, New York 10260-0060
Greenwich Capital Markets, Inc. ABN AMRO Bank N.V.
600 Steamboat Road 135 South LaSalle Street
Greenwich, Connecticut 06830 Chicago, Illinois 60603
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
We have acted as special counsel to Salomon Brothers Mortgage
Securities VII, Inc. (the "Depositor"), Salomon Brothers Realty Corp. ("SBRC"),
Greenwich Capital Financial Products, Inc. ("GCFP") and Artesia Mortgage Capital
Corporation ("AMCC") in connection with certain matters relating to the
following transactions (collectively, the "Transactions"):
(i) the sale by SBRC, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "SBRC Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of December 12, 2000 (the "SBRC Mortgage Loan Purchase Agreement"),
between SBRC and the Depositor;
(ii) the sale by GCFP, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "GCFP Mortgage
Loans"), pursuant to
M-1-51
<PAGE> 485
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 2
that certain Mortgage Loan Purchase Agreement, dated as of December 12,
2000 (the "GCFP Mortgage Loan Purchase Agreement"), between GCFP and the
Depositor;
(iii) the sale by AMCC, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "AMCC Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of December 12, 2000 (the "AMCC Mortgage Loan Purchase Agreement"),
between AMCC and the Depositor;
(iv) the sale by LaSalle Bank National Association ("LBNA"), and
the purchase by the Depositor, of certain multifamily and commercial
mortgage loans (the "LBNA Mortgage Loans"), pursuant to that certain
Mortgage Loan Purchase Agreement, dated as of December 12, 2000 (the "LBNA
Mortgage Loan Purchase Agreement"), between LBNA and the Depositor;
(v) the creation of a common law trust (the "Trust") and the
issuance of an aggregate $914,661,061 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2000-C3 (the
"Certificates"), consisting of 18 classes designated Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class X, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class R and Class Y,
pursuant to that certain Pooling and Servicing Agreement, dated as of
December 1, 2000 (the "Pooling and Servicing Agreement"), among the
Depositor as depositor, Midland Loan Services, Inc., as master servicer,
Lennar Partners, Inc., as special servicer, Wells Fargo Bank Minnesota,
N.A., as trustee (the "Trustee"), and LaSalle Bank National Association, as
certificate administrator and tax administrator;
(vi) the conveyance of the SBRC Mortgage Loans, the GCFP Mortgage
Loans, the AMCC Mortgage Loans and the LBNA Mortgage Loans (collectively,
the "Mortgage Loans") by the Depositor to the Trust, pursuant to the
Pooling and Servicing Agreement, in exchange for the issuance of the
Certificates; and
(vii) the sale by the Depositor, and the purchase by Salomon Smith
Barney Inc. ("SSBI"), Greenwich Capital Markets, Inc. ("Greenwich
Capital"), Chase Securities Inc. ("Chase"), Deutsche Bank Securities Inc.
("Deutsche Bank"), J.P. Morgan Securities Inc. ("J.P. Morgan") and ABN AMRO
Bank N.V. ("ABN AMRO"; and, together with SSBI, Greenwich Capital, Chase,
Deutsche Bank and J.P. Morgan in such capacity, the "Underwriters"), of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates (collectively, the "Publicly Offered Certificates"), pursuant
to that
M-1-52
<PAGE> 486
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 3
certain Underwriting Agreement, dated as of December 12, 2000 (the
"Underwriting Agreement"), between the Depositor and the Underwriters.
The SBRC Mortgage Loan Purchase Agreement, the GCFP Mortgage Loan
Purchase Agreement, the AMCC Mortgage Loan Purchase Agreement and the LBNA
Mortgage Loan Purchase Agreement are collectively referred to herein as the
"Mortgage Loan Purchase Agreements". The Mortgage Loan Purchase Agreements, the
Pooling and Servicing Agreement, the Underwriting Agreement and the Certificate
Purchase Agreement are collectively referred to herein as the "Agreements".
Capitalized terms not defined herein have the respective meanings set forth in
the Pooling and Servicing Agreement and, to the extent not defined therein, in
the other Agreements.
For the purposes of this letter, we have reviewed: the Agreements; the
Depositor's registration statement on Form S-3 (No. 333-40426) (the
"Registration Statement") filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"); the
Prospectus, dated December 12, 2000, relating to publicly offered mortgage
pass-through certificates evidencing interests in trust funds established by the
Depositor (the "Basic Prospectus"); and the Prospectus Supplement, dated
December 12, 2000, specifically relating to the Trust and the Publicly Offered
Certificates (including all exhibits and annexes thereto, the "Prospectus
Supplement"; and, together with the Basic Prospectus, the "Prospectus"). In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the statements made in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the respective parties to the Agreements and
public officials as we have deemed relevant or necessary as the basis for the
statements made in this letter; and we have relied upon, and assumed the
accuracy of, such other documents and records, such certificates and the
statements made in response to such inquiries, with respect to the factual
matters upon which the statements made in this letter are based. We have also
assumed (i) the truthfulness and accuracy of each of the representations and
warranties as to factual matters contained in the Agreements, (ii) the legal
capacity of natural persons, (iii) the genuineness of all signatures, (iv) the
authenticity of all documents submitted to us as originals, (v) the conformity
to authentic originals of all documents submitted to us as certified, conformed
or photostatic copies, (vi) the due authorization by all necessary action, and
the due execution and delivery, of the Agreements by the parties thereto, (vii)
the constitution of each of the Agreements as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, (viii) compliance with the Agreements by the
M-1-53
<PAGE> 487
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 4
parties thereto, (ix) the conformity, to the requirements of the Pooling and
Servicing Agreement and the respective Mortgage Loan Purchase Agreements, of the
Mortgage Notes, the Mortgages and the other documents relating to the Mortgage
Loans delivered to the Trustee by, on behalf of or at the direction of the
Depositor, SBRC, GCFP, AMCC and LBNA, (x) the conformity of the text of each
document filed with the Commission through the Commission's Electronic Data
Gathering, Analysis and Retrieval System to the printed documents reviewed by
us, and (xi) the absence of any agreement that supplements or otherwise modifies
the intentions and agreements of the parties to the Agreements, as expressed
therein. In rendering this letter, we do not make any statement concerning the
laws of any jurisdiction other than the federal laws of the United States of
America.
In the course of acting as special counsel to the Depositor, SBRC, GCFP
and AMCC in connection with the preparation of the Prospectus, we have generally
reviewed and discussed with certain representatives of the Depositor, SBRC,
GCFP, AMCC, LBNA, SSBI, Greenwich Capital and the other parties to the
Agreements and their respective counsel (in addition to us) the information set
forth in the Prospectus, other than any documents or information incorporated by
reference in either the Prospectus or the Memorandum. In addition, we have
reviewed loan summaries delivered to us by SBRC, GCFP and AMCC with respect to
the SBRC Mortgage Loans, the GCFP Mortgage Loans and the AMCC Mortgage Loans,
respectively; and we have undertaken a limited review of copies of certain
environmental insurance policies and other selected Mortgage Loan documents with
respect to certain SBRC Mortgage Loans, GCFP Mortgage Loans and AMCC Mortgage
Loans. While we have not otherwise made any independent check or verification
of, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, on the basis of the foregoing, nothing has come to our attention
that causes us to believe that the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the Prospectus
Supplement or as of the date hereof, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that we make no statement as to: (i) any
accounting, financial or statistical data or other information of that nature
contained in or omitted from the Registration Statement or the Prospectus; (ii)
any documents or information incorporated by reference in the Registration
Statement or the Prospectus; (iii) any information on the diskette that
accompanies the Prospectus; or (iv) any information with respect to the
characteristics of the LBNA Mortgage
M-1-54
<PAGE> 488
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 5
Loans, the related Borrowers and/or the related Mortgaged Properties contained
in or omitted from the Prospectus. In that connection, we advise you that we
have, as to materiality, relied to the extent we deemed appropriate upon the
judgment of officers and representatives of the Depositor, SBRC, GCFP and AMCC.
In addition, in that connection, we call to your attention that, with your
knowledge and consent, except as stated above, we have not examined or otherwise
reviewed any of the Mortgage Files, Servicing Files or any particular documents
contained in such files or any other documents with respect to the Mortgage
Loans.
When used in this letter, the term "attention" or any other word or
phrase of similar import means the conscious awareness of facts or other
information of solely those attorneys who are currently practicing law with
Sidley & Austin and have been actively involved in representing the Depositor,
SBRC, GCFP and AMCC in connection with any matters relating to the Transactions.
With your permission, no attempt was made by such attorneys to gather
information from any other attorneys currently practicing law with Sidley &
Austin that may have represented the Depositor, SBRC, GCFP, AMCC or any of their
respective affiliates in other matters or to review any files associated with
those matters.
This letter is being delivered to you as of the date hereof, and we
assume no obligation to advise you of any changes of law or fact that may occur
after the date hereof, notwithstanding that such changes may affect the
statements made herein. This letter is solely for your benefit in connection
with the Transactions and may not be relied on in any manner for any other
purpose or by any other person or transmitted to any other person without our
prior consent.
Very truly yours,
M-1-55
<PAGE> 489
EXHIBIT E
ORGANIZATIONAL DOCUMENTS OF THE SELLER
M-1-56
<PAGE> 490
EXHIBIT M-2
FORM OF GCFP MORTGAGE LOAN PURCHASE
AGREEMENT
<PAGE> 491
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective as of December 12, 2000, between Greenwich Capital Financial
Products, Inc., a Delaware ("GCFP"), as seller (in such capacity, together with
its successors and permitted assigns hereunder, the "Seller"), and Salomon
Brothers Mortgage Securities VII, Inc., a Delaware corporation ("SBMS VII"), as
purchaser (in such capacity, together with its successors and permitted assigns
hereunder, the "Purchaser").
RECITALS
GCFP desires to sell, assign, transfer and otherwise convey to
SBMS VII, without recourse, and SBMS VII desires to purchase, subject to the
terms and conditions set forth herein, the multifamily and commercial mortgage
loans (the "Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended from
time to time pursuant to the terms hereof.
SBMS VII intends to create a trust (the "Trust"), the primary
assets of which will be the Mortgage Loans, certain other multifamily and
commercial mortgage loans (the "Other Loans"; and, together with the Mortgage
Loans, the "Securitized Loans"). Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund") will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc. and Moody's Investors Service, Inc. (together,
the "Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be subject to registration under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of December 1, 2000 (the "Pooling and Servicing Agreement"), among SBMS
VII, as depositor, Midland Loan Services, Inc., as master servicer (the "Master
Servicer"), Lennar Partners, Inc., as special servicer ( "Special Servicer"),
and Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee"). Capitalized
terms used but not otherwise defined herein have the respective meanings
assigned to them in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date (as defined in Section 1 hereof). It is anticipated
that SBMS VII will transfer the Mortgage Loans to the Trust contemporaneously
with its purchase of the Mortgage Loans hereunder.
The Depositor will acquire some of the Other Loans from Salomon
Brothers Realty Corp. ("SBRC"), some of the Other Loans from LaSalle Bank
National Association ("LaSalle"), and the remaining Other Loans from Artesia
Mortgage Capital Corporation ("AMCC"; and, collectively with SBRC and LaSalle,
the "Other Loan Sellers").
SBMS VII intends to sell the Registered Certificates to Salomon
Smith Barney Inc. ("SSBI"), Greenwich Capital Markets, Inc. ("Greenwich
Capital"), Chase Securities Inc. ("Chase"), Deutsche Bank Securities Inc.
("Deutsche Bank"), J.P. Morgan Securities Inc. ("J.P. Morgan") and ABN AMRO Bank
N.V. ("ABN AMRO"), pursuant to an underwriting
M-2-2
<PAGE> 492
agreement, dated as of the date hereof (the "Underwriting Agreement"), among
SBMS VII, SSBI, Greenwich Capital, Chase, Deutsche Bank, J.P. Morgan and ABN
AMRO; and SBMS VII intends to sell the remaining Certificates (the
"Non-Registered Certificates") to SSBI and Greenwich Capital, pursuant to a
certificate purchase agreement, dated as of the date hereof (the "Certificate
Purchase Agreement"), among SBMS VII, SSBI and Greenwich Capital. The Registered
Certificates are more fully described in the prospectus dated December 12, 2000
(the "Basic Prospectus"); and the supplement to the Basic Prospectus dated
December 12, 2000 (the "Prospectus Supplement"; and, together with the Basic
Prospectus, the "Prospectus"), as each may be amended or supplemented any time
hereafter. Certain classes of the Non-Registered Certificates are more fully
described in the private placement memorandum dated December 12, 2000 (the
"Memorandum"), as it may be amended or supplemented at any time hereafter.
GCFP will indemnify SBMS VII, SSBI, Greenwich Capital, Chase,
Deutsche Bank, J.P. Morgan, ABN AMRO and certain related parties with respect to
the disclosure regarding the Mortgage Loans and GCFP contained in the
Prospectus, the Memorandum and certain other disclosure documents and offering
materials relating to the Certificates, pursuant to an indemnification agreement
dated as of the date hereof (the "Indemnification Agreement"), among GCFP, SBMS
VII, SSBI, Greenwich Capital, Chase, Deutsche Bank, J.P. Morgan and ABN AMRO.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise
convey (without recourse) to the Purchaser, and the Purchaser agrees to
purchase, subject to the terms and conditions set forth herein, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on December
19, 2000 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). As of the close of business on their respective due
dates in December 2000 (individually, on a loan-by-loan basis, and collectively,
the "Cut-off Date"), the Mortgage Loans will have an aggregate principal
balance, after application of all payments of principal due on the Mortgage
Loans on or before such date, whether or not received, of $337,444,107, subject
to a variance of plus or minus 5%. The purchase price for the Mortgage Loans
shall be $___________, together with accrued interest on the Mortgage Loans at
their respective Net Mortgage Rates from and including the Cut-off Date to but
not including the Closing Date, and shall be paid to the Seller by wire transfer
in immediately available funds on the Closing Date (or by such other method as
shall be mutually acceptable to the parties hereto).
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to its
receipt and acceptance of the purchase price referred to in Section 1 hereof,
the Seller does hereby transfer, assign, set over and otherwise convey to the
Purchaser, without recourse but subject to the terms of this Agreement, all the
right, title and interest of the Seller in and to the Mortgage Loans identified
on the Mortgage Loan Schedule as of such date, including, without limitation,
all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard or other insurance
M-2-3
<PAGE> 493
policies received by the Seller on or with respect to the Mortgage Loans after
the Cut-off Date and any Additional Collateral. The Seller shall, within 15 days
of the discovery of an error on the Mortgage Loan Schedule, amend the Mortgage
Loan Schedule and deliver to the Purchaser or its designee an amended Mortgage
Loan Schedule. The Mortgage Loan Schedule, as it may be amended, shall conform
to the requirements set forth in this Agreement.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its
expense, deliver or cause to be delivered to the Purchaser or its designee the
Mortgage File and any Additional Collateral (other than reserve funds and escrow
payments) with respect to each Mortgage Loan. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipient of the items
described in the preceding sentence shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original
or certified recorded document or original policy of title insurance which is to
be delivered as part of the related Mortgage File, solely because the Seller is
delayed in making such delivery by reason of the fact that such original or
certified recorded document has not been returned by the appropriate recording
office or such original policy of title insurance has not yet been issued, then
the Seller shall notify the Purchaser, in writing, of such delay (unless the
Trustee shall have provided the Purchaser with an exception report indicating
such delay), and the Seller shall deliver such documents to the Purchaser or its
designee promptly upon the Seller's receipt thereof.
In addition, unless previously delivered by the Seller to the
Purchaser or its designee, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, the following items, within 10 days following the Closing Date
(or, if any of the following items are not in the actual possession of the
Seller, within 30 days following the Closing Date): (i) copies of the Mortgage
Files for the respective Mortgage Loans; (ii) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are necessary for the ongoing servicing and
administration of the Mortgage Loans; and (iii) all unapplied reserve funds and
escrow payments in the possession or under the control of the Seller that relate
to the Mortgage Loans, other than those that are to be retained by a
sub-servicer or primary servicer that will continue to act on behalf of the
Purchaser. Unless the Purchaser notifies the Seller in writing to the contrary,
the designated recipient of the items described in clauses (i) - (iii) of the
preceding sentence shall be the Master Servicer.
M-2-4
<PAGE> 494
The Seller shall also provide to the Purchaser or its designee
the initial data on the Mortgage Loans (as of the Closing Date or the most
recent earlier date for which such date is available) contemplated by the Loan
Set-up File, the Loan Periodic Update File, the Operating Statement Analysis
Report and the Property File.
(d) The Seller shall be responsible for all reasonable costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer to the Purchaser with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement; provided that the Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer. If any such assignment or other instrument of transfer
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, and the Seller receives notice to such effect from the Purchaser
or its designee, then the Seller shall prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be. The Seller shall
provide the Purchaser or its designee with a power of attorney to enable it or
them to record any loan documents that the Purchaser has been unable to record.
(e) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller shall report its transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of those assets
to the Purchaser in exchange for the consideration specified in Section 1
hereof. In connection with the foregoing, the Seller shall cause all of its
records to reflect such transfer as a sale (as opposed to a secured loan) and to
reflect that the Mortgage Loans are no longer property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with any examination of
the Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser. The
fact that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section
4, except as such remedies are otherwise limited by the terms of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes, as of the Closing Date, to and for
the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit B.
M-2-5
<PAGE> 495
(b) The Seller hereby makes, as of the Closing Date (or as of
such other date specifically provided in the particular representation or
warranty) to and for the benefit of the Purchaser, each of the representations
and warranties set forth in Exhibit C.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 4 shall survive delivery of the respective
Mortgage Files to the Purchaser or its designee and shall inure to the benefit
of the Purchaser for so long as any of the Mortgage Loans remains outstanding,
notwithstanding any restrictive or qualified endorsement or assignment.
SECTION 4A. Representations, Warranties and Covenants of Purchaser.
The Purchaser hereby represents and warrants, as of the Closing Date,
that:
(a) The Purchaser is a duly formed corporation, validly
existing and in good standing under the laws of the State of Delaware.
(d) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(e) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(f) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this Agreement
by the Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or instrument to which it is a party or which is applicable to it or
any of its assets.
(g) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(h) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the Purchaser
from entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, is likely to materially and
M-2-6
<PAGE> 496
adversely affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Seller.
(i) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency or body
is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations and
orders that previously have been obtained and those filings and registrations
that previously have been completed.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within 90 days of the earlier of discovery or receipt of
notice by the Seller that there has been a Material Breach or a Material
Document Defect, the Seller shall, subject to subsection (b) below, (i) cure
such Material Breach or Material Document Defect, as the case may be, in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price provided for in the
Pooling and Servicing Agreement, which Purchase Price shall be deposited or
delivered in accordance with the directions of the Purchaser; provided that if
(i) any such Material Breach or Material Document Defect, as the case may be,
does not affect whether the Defective Mortgage Loan was, is or will continue to
be, a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
(a "Qualified Mortgage"), (ii) such Material Breach or Material Document Defect,
as the case may be, is capable of being cured but not within such 90-day period,
(iii) the Seller has commenced and is diligently proceeding with the cure of
such Material Breach or Material Document Defect, as the case may be, within
such 90-day period, and (iv) the Seller shall have delivered to the Purchaser a
certification executed on behalf of the Seller by an officer thereof setting
forth the reason that such Material Breach or Material Document Defect, as the
case may be, is not capable of being cured within the initial 90-day period and
what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Material Breach or Material
Document Defect, as the case may be, will be cured within an additional period
not to exceed 90 more days, then the Seller shall have an additional 90 days to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan.
Any such repurchase of a Defective Mortgage Loan shall be on a whole loan,
servicing released basis (subject to any right of a Designated Sub-Servicer to
continue to sub-service such Defective Mortgage Loan as set forth in the related
Designated Sub-Servicer Agreement). The Seller shall have no obligation to
monitor the Mortgage Loans regarding the existence of a Material Breach or a
Material Document Defect, but if the Seller has actual knowledge of a Material
Breach or Material Document Defect with respect to a Mortgage Loan, it will
notify the Purchaser.
If 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 Borrower and record, such documentation as may be
necessary to terminate the cross-collateralization between the Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the one hand, and
the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly
M-2-7
<PAGE> 497
corresponding thereto; provided that no such termination shall be effected
unless and until the Purchaser and its servicing agent has received from the
Seller: (i) 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 either Grantor Trust Pool and (ii)
written confirmation from each Rating Agency that such termination will not
cause an Adverse Rating Event to occur with respect to any Class of Rated
Certificates; and provided, further, that the Seller may, at its option,
purchase the entire subject Cross-Collateralized Group in lieu of terminating
the cross-collateralization. All costs and expenses incurred by the Purchaser 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 is a Material Breach or Material Document Defect,
as the case may be, and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
If any Defective Mortgage Loan is to be repurchased as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and shall forward
such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller
set forth in this Section 5(a) to cure a Material Breach or a Material Document
Defect or repurchase the related Defective Mortgage Loan(s), constitute the sole
remedies available to the Purchaser with respect to a Breach or Document Defect.
(b) It shall be a condition to any repurchase of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that (i) the Purchaser
shall have executed and delivered such instruments of transfer or assignment
then presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto), to the extent that such
ownership interest was transferred to the Purchaser hereunder and (ii) the
Purchaser or its assignee shall release or cause the release to the Seller or
its designee of the Mortgage File, any Additional Collateral, all insurance
policies and proceeds thereunder, the Servicing File and any Escrow Payments
and/or Reserve Funds held by or on behalf of the Purchaser (or its assignee)
with respect to such Mortgage Loan.
SECTION 6. Closing.
(a) 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.
(b) The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
made pursuant to Section 4 of this Agreement shall be true and correct in
all material respects as of the Closing Date or such other date as
specified in Exhibit C;
M-2-8
<PAGE> 498
(b) All documents specified in Section 7 of this Agreement
(the "Closing Documents"), in such forms as are reasonably acceptable to
the Purchaser and, in the case of the Pooling and Servicing Agreement
(insofar as it affects the obligations of the Seller hereunder), to the
Seller, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the
Purchaser or its designee, all documents and funds required to be so
delivered pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required
to be complied with by the Seller and the Purchaser, including, without
limitation, in the case of the Purchaser, payment of the purchase price,
on or before the Closing Date shall have been complied with, and the
Seller shall have the ability to comply with all terms and conditions and
perform all duties and obligations required to be complied with or
performed after the Closing Date;
(e) The Seller shall have paid all fees, costs and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement;
and
(f) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
(c) Both parties agree to use their best efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents.
The Closing Documents shall consist of the following:
(a) this Agreement duly executed and delivered by the Purchaser
and the Seller;
(b) the Indemnification Agreement duly executed and delivered
by the Seller, the Purchaser and each of SSBI, Greenwich Capital, Chase,
Deutsche Bank, J.P. Morgan and ABN AMRO;
(c) the Pooling and Servicing Agreement duly executed and
delivered by SBMS VII, the Master Servicer, the Special Servicer and the
Trustee;
(d) an Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and upon
which the Purchaser, SSBI, Greenwich Capital, Chase, Deutsche Bank, J.P. Morgan,
ABN AMRO and the Rating Agencies (collectively, the "Interested Parties") may
rely, attaching thereto as exhibits the organizational documents of the Seller,
as in full force and effect on the date hereof, and the Resolutions described in
clause(g) below;
M-2-9
<PAGE> 499
(e) a certificate of good standing with respect to the Seller
issued by the Secretary of State of the State of New York dated not earlier than
10 days prior to the Closing Date;
(f) a certificate of the Seller substantially in the form of
Exhibit D-2 hereto, executed by an executive officer or authorized signatory of
the Seller and dated the Closing Date, and upon which the Interested Parties may
rely;
(g) resolutions of the Seller authorizing the transactions
contemplated by this Agreement, which resolutions will be in full force and
effect, and will not have been rescinded, as of the Closing Date;
(h) a written opinion of counsel for the Seller, which may be
delivered by in-house counsel, substantially in the form of Exhibit D-3A hereto
(with any modifications required by any Rating Agency, and subject to such
reasonable assumptions, qualifications and limitations as may be requested by
counsel for the Seller and acceptable to counsel for the Purchaser), dated the
Closing Date and addressed to the Purchaser, each of the other parties to the
Pooling and Servicing Agreement and each of the other Interested Parties;
(i) a written opinion of Sidley & Austin, as special counsel
for the Seller, substantially in the form of Exhibit D-3B hereto (with any
modifications required by any Rating Agency, and subject to such reasonable
assumptions, qualifications and limitations as may be requested by counsel for
the Seller and acceptable to counsel for the Purchaser), dated the Closing Date
and addressed to the Purchaser, each of the other parties to the Pooling and
Servicing Agreement and each of the other Interested Parties;
(j) such other written opinions as may be required by either
Rating Agency (including, without limitation, a favorable opinion as to the
"true sale" characterization of the transfer of the Mortgage Loans contemplated
by this Agreement);
(k) a written letter of Sidley & Austin, as special counsel to
the Seller, substantially in the Form of Exhibit D-3C, relating to the
disclosure in the Prospectus regarding the Mortgage Loans and GCFP, dated the
Closing Date and addressed to the Purchaser and each of the other Interested
Parties (except for the Rating Agencies);
(l) one or more accountants' comfort letters, addressed, and in
form and substance reasonably acceptable, to SSBI, Greenwich Capital, Chase,
Deutsche Bank, J.P. Morgan and ABN AMRO, relating to the information regarding
the Mortgage Loans contained in the Prospectus and Memorandum that is of a
statistical nature; and
SECTION 8. Costs.
Any costs and expenses incurred by either party hereto in
connection with the transactions contemplated hereunder shall be borne by the
parties in accordance with the terms of that certain Term Sheet, dated October
20, 2000 (the "Term Sheet"), between the Seller, Salomon Brothers Realty Corp.,
LaSalle Bank National Association and Artesia Mortgage Capital Corporation.
M-2-10
<PAGE> 500
SECTION 9. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to the Purchaser at 388 Greenwich Street, New
York, New York 10013, attention: Angela Hutzel, facsimile no.: 212-816-8306, or
to such other address or facsimile number as may hereafter be furnished to the
Seller in writing by the Purchaser; and, if to the Seller, addressed to the
Seller at 600 Steamboat Road, Greenwich, Connecticut 06830, attention: Mark
Jarrell, facsimile no.: 203-618-2134, or to such other address or facsimile
number as may hereafter be furnished to the Purchaser in writing by the Seller.
SECTION 10. Characterization.
The parties hereto agree that it is their express intent that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. The parties hereto further agree that it is not
their intention that such conveyance be deemed a pledge of the Mortgage Loans by
the Seller to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to continue to be property of the Seller, then: (a) this Agreement shall be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder(s) of those assets in accordance with the terms thereof (other
than scheduled payments of interest and principal due on or before the Cut-off
Date) and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property; (c) the
assignment by SBMS VII to the Trustee of its interests in the Mortgage Loans as
contemplated by Section 16 hereof shall be deemed to be an assignment of any
security interest created hereunder; (d) the possession by the Purchaser or any
successor thereto of the related Mortgage Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction; and
(e) notifications to, and acknowledgments, receipts or confirmations from,
persons or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery.
M-2-11
<PAGE> 501
All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
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 or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as
M-2-12
<PAGE> 502
contemplated by the recitals hereto, SBMS VII is expressly authorized to assign
it rights and obligations under this Agreement, in whole or in part, to the
Trustee for the benefit of the registered holders and beneficial owners of the
Certificates. To the extent of any such assignment, the Trustee (including
acting through the Master Servicer and Special Servicer pursuant to the terms of
the Pooling and Servicing Agreement), for the benefit of the registered holders
and beneficial owners of the Certificates, shall be the Purchaser hereunder. In
connection with the transfer of any Mortgage Loan by the Trust as contemplated
by the terms of the Pooling and Servicing Agreement, the Trustee, for the
benefit of the registered holders and beneficial owners of the Certificates, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be the Purchaser hereunder (but
solely with respect to such Mortgage Loan that was transferred to it). Subject
to the foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 17. Amendments.
(a) No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced.
(b) Notwithstanding any contrary provision of this Agreement or
the Pooling and Servicing Agreement, no amendment of the Pooling and Servicing
Agreement executed after the Closing Date that increases the obligations of or
otherwise adversely affects the Seller, shall be effective against the Seller.
SECTION 18. Entire Agreement.
Except as otherwise expressly contemplated hereby, this
Agreement constitutes the entire agreement and understanding of the parties with
respect to the matters addressed herein, and this Agreement supersedes any prior
agreements and/or understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
M-2-13
<PAGE> 503
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.
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
----------------------------
Name:
Title:
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
By:
----------------------------
Name:
Title:
M-2-14
<PAGE> 504
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached Schedule}
M-2-15
<PAGE> 505
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY PROPERTY CITY STATE ZIP PROPERTY PROP
NUMBER NUMBER NATOR NAME ADDRESS CODE SIZE ERTY
SIZE
UNIT
TYPE
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows 30600 Van Born Road Westland MI 48186 774 Pads
105 03-0810413 GCM Stonegate One 15050 Conference Chantilly VA 20151 142,477 SF
Center Drive
111 03-0810092 GCM Granite State Marketplace 1328 Hooksett Road Hooksett NH 03106 249,621 SF
112 11483 GCM Pacific Plaza 1375 Sutter Street San Francisco CA 94109 81,551 SF
116 03-0812601 GCM Webster Building 51 N Street, N.E. Washington DC 20002 136,270 SF
120 03-0810405 GCM 801 Boylston Street 801 Boylston Street Boston MA 02164 26,834 SF
122 03-0810402 GCM Simchik Four Property
Portfolio 93,250 SF
122a 03-0810402a GCM 100 Market Street 100 Market Street Portsmouth NH 03801 50,674 SF
122b 03-0810402b GCM 9 Executive Park Drive 9 Executive Park Drive Merrimack NH 03054 27,325 SF
122c 03-0810402c GCM 1255 South Willow Street 1255 South Willow Manchester NH 03103 7,820 SF
Street
122d 03-0810402d GCM 135 Daniel Webster 135 Daniel Webster Manchester NH 03104 7,431 SF
Highway Highway
123 03-0810401 GCM Four Points Hotel by 426 Main Avenue Norwalk CT 06851 127 Rooms
Sheraton
129 11312 GCM Burlington Self Storage 35 Ray Avenue Burlington MA 01803 88,430 SF
130 11358 GCM Boynton Plaza 133 North Congress
Avenue Boynton Beach FL 33426 97,524 SF
132 10511 GCM Garden Ridge 6103 Landmark Center
Boulevard Greensboro NC 27407 122,400 SF
133 2010092 GCM 300 West Pratt Street 300 West Pratt Street Baltimore MD 21201 60,323 SF
134 2010093 GCM The GTE Building 200 West Ocean
Boulevard Long Beach CA 90802 107,920 SF
135 2010096 GCM Hamlin Court 930 & 940 Hamlin Court Sunnyvale CA 94089 42,868 SF
138 03-0810219 GCM Michael's Plaza 10303-10351,10355 &
10357
Magnolia Avenue Riverside CA 92505 67,788 SF
139 03-0810404 GCM Mountain Vista Apartments
& Cibola Village
348 Units
139a 03-0810404a GCM Mountain Vista Apartments 13110 Constitution
Boulevard and
1501 Tramway Boulevard
N.E. Albuquerque NM 87111 220 Units
139b 03-0810404b GCM Cibola Village 12400 Montgomery
Boulevard, N.E. Albuquerque NM 87112 128 Units
141 03-0812040 GCM 300 West Hubbard Street 300 West Hubbard Street Chicago IL 60610 26,054 SF
Building
142 03-0812041 GCM 445 North Wells Street 445 North Wells Street Chicago IL 60610 31,226 SF
Building
143 03-0810224 GCM Miracle Mile Business 1310 West Miracle Mile Tucson AZ 85705 116,391 SF
Center
144 03-0810256 GCM Folsom Self-Storage 600 Nesmith Court Folsom CA 95630 117,200 SF
147 03-0810259 GCM Northpointe Shopping 4230-4354 Redondo
Beach Boulevard
& 17204-17270
Hawthorne Boulevard Torrance CA 90504 51,621 SF
148 03-0810406 GCM 2 Willow Street 2 Willow Street Southborough MA 01745 39,984 SF
150 9.911E+09 GCM Calaveras Landing 30057-81 Industrial
Shopping Center Parkway SW Union City CA 94358 64,956 SF
151 1010091 GCM Healtheon 4600 Patrick Henry
Drive Santa Clara CA 95054 49,837 SF
152 03-0812028 GCM 444 North Wells Street 444 North Wells Street Chicago IL 60610 58,451 SF
Building
153 03-0810239 GCM 1600 Corporate Center 1600 Corporate Center
Drive Drive Monterey Park CA 91754 47,787 SF
154 03-0810417 GCM Little Creek Apartments 496 Bending Creek Road Gates NY 14624 199 Units
155 03-0810177 GCM 271 - 285 East Fordham 271 - 285 East Fordham
Road Road Bronx NY 10458 18,000 SF
157 03-0810247 GCM El Dorado Plaza 1602, 1702, 1730,
1750, 1790 and
1802 N. Imperial Avenue El Centro CA 92243 62,767 SF
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY CROSS CROSS OWNER- ORIGINAL MORTGAGE RATE
NUMBER NUMBER NATOR NAME COLLATER- COLLATER- SHIP BALANCE RATE TYPE
ALIZED ALIZED INTEREST
(MORTGAGE MORTGAGE
LOAN LOAN GROUP
GROUP) AGGREGATE
CUT-OFF
DATE
BALANCE
-----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows No 22,714,214 Fee Simple ####### 7.8300% Fixed
105 03-0810413 GCM Stonegate One No 20,985,981 Fee Simple ####### 8.0250% Fixed
111 03-0810092 GCM Granite State Marketplace No 18,205,497 Fee Simple ####### 7.7350% Fixed
112 11483 GCM Pacific Plaza No 16,426,642 Fee Simple ####### 8.4000% Fixed
116 03-0812601 GCM Webster Building No 15,933,791 Fee Simple ####### 8.3800% Fixed
120 03-0810405 GCM 801 Boylston Street No 11,010,038 Fee Simple ####### 8.1200% Fixed
122 03-0810402 GCM Simchik Four Property
Portfolio No 9,975,377 ####### 8.4500% Fixed
122a 03-0810402a GCM 100 Market Street Fee Simple
122b 03-0810402b GCM 9 Executive Park Drive Fee Simple
122c 03-0810402c GCM 1255 South Willow Street Fee Simple
122d 03-0810402d GCM 135 Daniel Webster Fee Simple
Highway
123 03-0810401 GCM Four Points Hotel by No 9,550,083 Leasehold ####### 9.1400% Fixed
Sheraton
129 11312 GCM Burlington Self Storage No 7,984,459 Fee Simple ####### 8.5500% Fixed
130 11358 GCM Boynton Plaza No 7,679,220 Fee Simple ####### 8.0300% Fixed
132 10511 GCM Garden Ridge No 7,095,636 Fee Simple ####### 8.4300% Fixed
133 2010092 GCM 300 West Pratt Street No 7,018,345 Part Fee ####### 8.0800% Fixed
Simple &
Part
Leasehold
134 2010093 GCM The GTE Building No 6,877,665 Fee Simple ####### 8.2000% Fixed
135 2010096 GCM Hamlin Court No 6,810,393 Fee Simple ####### 8.6300% Fixed
138 03-0810219 GCM Michael's Plaza No 6,247,050 Fee Simple ####### 8.1100% Fixed
139 03-0810404 GCM Mountain Vista Apartments No 5,982,627 ####### 8.6000% Fixed
& Cibola Village
139a 03-0810404a GCM Mountain Vista Apartments Fee Simple
139b 03-0810404b GCM Cibola Village Fee Simple
141 03-0812040 GCM 300 West Hubbard Street Yes (G1) 5,742,051 Fee Simple ####### 8.3900% Fixed
Building
142 03-0812041 GCM 445 North Wells Street Yes (G1) 5,742,051 Fee Simple ####### 8.3900% Fixed
Building
143 03-0810224 GCM Miracle Mile Business No 5,679,549 Fee Simple ####### 8.2800% Fixed
Center
144 03-0810256 GCM Folsom Self-Storage No 5,591,013 Fee Simple ####### 8.4700% Fixed
147 03-0810259 GCM Northpointe Shopping No 5,194,650 Fee Simple ####### 8.3200% Fixed
Center
148 03-0810406 GCM 2 Willow Street No 5,191,447 Fee Simple ####### 8.3720% Fixed
150 9.911E+09 GCM Calaveras Landing No 5,173,542 Fee Simple ####### 7.9800% Fixed
Shopping Center
Part Fee
Simple &
Part
151 1010091 GCM Healtheon No 5,145,165 Leasehold ####### 8.0400% Fixed
152 03-0812028 GCM 444 North Wells Street No 5,124,646 Fee Simple ####### 8.4900% Fixed
Building
153 03-0810239 GCM 1600 Corporate Center No 5,055,905 Fee Simple ####### 8.4600% Fixed
Drive
154 03-0810417 GCM Little Creek Apartments No 5,044,068 Fee Simple ####### 7.8300% Fixed
155 03-0810177 GCM 271 - 285 East Fordham No 4,933,555 Fee Simple ####### 8.4000% Fixed
Road
157 03-0810247 GCM El Dorado Plaza No 4,420,203 Fee Simple ####### 8.1300% Fixed
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY INTEREST LOAN NOTE DATE CONTROL LOAN ANTICI-
NUMBER NUMBER NATOR NAME ACCRUAL TYPE NUMBER NUMBER PATED
METHOD REPAY-
MENT DATE
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows Actual/360 Balloon 10/12/00 104 03-0812051 NAP
105 03-0810413 GCM Stonegate One Actual/360 Balloon 10/11/00 105 03-0810413 NAP
111 03-0810092 GCM Granite State Marketplace Actual/360 Balloon 08/19/98 111 03-0810092 NAP
112 11483 GCM Pacific Plaza Actual/360 Balloon 07/21/00 112 11483 NAP
116 03-0812601 GCM Webster Building Actual/360 Balloon 03/24/00 116 03-0812601 NAP
120 03-0810405 GCM 801 Boylston Street Actual/360 Balloon 08/24/00 120 03-0810405 NAP
122 03-0810402 GCM Simchik Four Property
Portfolio Actual/360 Balloon 06/29/00 122 03-0810402 NAP
122a 03-0810402a GCM 100 Market Street 122a 03-0810402a
122b 03-0810402b GCM 9 Executive Park Drive 122b 03-0810402b
122c 03-0810402c GCM 1255 South Willow Street 122c 03-0810402c
122d 03-0810402d GCM 135 Daniel Webster 122d 03-0810402d
Highway
123 03-0810401 GCM Four Points Hotel by Actual/360 Balloon 04/05/00 123 03-0810401 NAP
Sheraton
129 11312 GCM Burlington Self Storage Actual/360 Balloon 07/31/00 129 11312 NAP
130 11358 GCM Boynton Plaza Actual/360 Balloon 06/30/00 130 11358 NAP
132 10511 GCM Garden Ridge Actual/360 Balloon 10/03/00 132 10511 NAP
133 2010092 GCM 300 West Pratt Street Actual/360 Balloon 03/30/00 133 2010092 NAP
134 2010093 GCM The GTE Building Actual/360 Balloon 05/09/00 134 2010093 NAP
135 2010096 GCM Hamlin Court Actual/360 Balloon 05/15/00 135 2010096 NAP
138 03-0810219 GCM Michael's Plaza Actual/360 Balloon 03/22/00 138 03-0810219 NAP
139 03-0810404 GCM Mountain Vista Apartments Actual/360 Balloon 05/18/00 139 03-0810404 NAP
& Cibola Village
139a 03-0810404a GCM Mountain Vista Apartments 139a 03-0810404a
139b 03-0810404b GCM Cibola Village 139b 03-0810404b
141 03-0812040 GCM 300 West Hubbard Street Actual/360 Balloon 04/30/00 141 03-0812040 NAP
Building
142 03-0812041 GCM 445 North Wells Street Actual/360 Balloon 04/30/00 142 03-0812041 NAP
Building
143 03-0810224 GCM Miracle Mile Business Actual/360 Balloon 04/26/00 143 03-0810224 NAP
Center
144 03-0810256 GCM Folsom Self-Storage Actual/360 Balloon 08/02/00 144 03-0810256 NAP
147 03-0810259 GCM Northpointe Shopping Actual/360 Balloon 09/18/00 147 03-0810259 NAP
Center
148 03-0810406 GCM 2 Willow Street Actual/360 Balloon 08/16/00 148 03-0810406 NAP
150 9.911E+09 GCM Calaveras Landing Actual/360 Balloon 02/23/00 150 9.911E+09 NAP
Shopping Center
151 1010091 GCM Healtheon Actual/360 Balloon 04/28/00 151 1010091 NAP
152 03-0812028 GCM 444 North Wells Street Actual/360 Balloon 04/30/00 152 03-0812028 NAP
Building
153 03-0810239 GCM 1600 Corporate Center Actual/360 Balloon 07/14/00 153 03-0810239 NAP
Drive
154 03-0810417 GCM Little Creek Apartments Actual/360 Balloon 09/13/00 154 03-0810417 NAP
155 03-0810177 GCM 271 - 285 East Fordham Actual/360 Balloon 10/01/99 155 03-0810177 NAP
Road
157 03-0810247 GCM El Dorado Plaza Actual/360 Balloon 09/21/00 157 03-0810247 NAP
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY SCHEDULED MONTHLY ORIGINAL STATED SEASON- REMAIN-
NUMBER NUMBER NATOR NAME MATURITY DEBT TERM TO ORIGINAL ING ING TERM
DATE SERVICE MATURITY AMORT- (MONTHS) TO MATURITY
PAYMENT / ARD IZATION / ARD
(MONTHS) TERM (MONTHS)
(MONTHS)
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows ####### ######### 120 360 1 119
105 03-0810413 GCM Stonegate One ####### ######### 120 360 1 119
111 03-0810092 GCM Granite State Marketplace ####### ######### 120 360 27 93
112 11483 GCM Pacific Plaza ####### ######### 120 360 4 116
116 03-0812601 GCM Webster Building ####### ######### 120 360 8 112
120 03-0810405 GCM 801 Boylston Street ####### 88,832.26 120 273.3404 3 117
122 03-0810402 GCM Simchik Four Property
Portfolio ####### 76,568.40 117 357 2 115
122a 03-0810402a GCM 100 Market Street
122b 03-0810402b GCM 9 Executive Park Drive
122c 03-0810402c GCM 1255 South Willow Street
122d 03-0810402d GCM 135 Daniel Webster
Highway
123 03-0810401 GCM Four Points Hotel by ####### 81,485.19 120 300 7 113
Sheraton
129 11312 GCM Burlington Self Storage ####### 61,796.79 120 360 4 116
130 11358 GCM Boynton Plaza ####### 56,660.99 120 360 5 115
132 10511 GCM Garden Ridge ####### 54,241.02 120 360 1 119
133 2010092 GCM 300 West Pratt Street ####### 52,124.12 120 360 8 112
134 2010093 GCM The GTE Building ####### 51,595.06 120 360 6 114
135 2010096 GCM Hamlin Court ####### 53,147.34 120 360 6 114
138 03-0810219 GCM Michael's Plaza ####### 46,525.82 120 360 8 112
139 03-0810404 GCM Mountain Vista Apartments ####### 46,560.70 120 360 6 114
& Cibola Village
139a 03-0810404a GCM Mountain Vista Apartments
139b 03-0810404b GCM Cibola Village
141 03-0812040 GCM 300 West Hubbard Street ####### 27,020.16 120 360 8 112
Building
142 03-0812041 GCM 445 North Wells Street ####### 16,847.64 120 360 6 114
Building
143 03-0810224 GCM Miracle Mile Business ####### 42,942.47 120 360 7 113
Center
144 03-0810256 GCM Folsom Self-Storage ####### 42,940.15 120 360 3 117
147 03-0810259 GCM Northpointe Shopping ####### 39,322.05 120 360 2 118
Center
148 03-0810406 GCM 2 Willow Street ####### 39,512.75 120 360 3 117
150 9.911E+09 GCM Calaveras Landing ####### 38,083.28 120 360 9 111
Shopping Center
151 1010091 GCM Healtheon ####### 38,043.06 120 360 7 113
152 03-0812028 GCM 444 North Wells Street ####### 39,485.73 120 360 6 114
Building
153 03-0810239 GCM 1600 Corporate Center ####### 38,809.64 120 360 4 116
Drive
154 03-0810417 GCM Little Creek Apartments ####### 36,458.39 120 360 2 118
155 03-0810177 GCM 271 - 285 East Fordham ####### 37,848.09 120 360 13 107
Road
157 03-0810247 GCM El Dorado Plaza ####### 32,870.99 120 360 2 118
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY STATED CUT-OFF DATE LOAN BALANCE DEFEASE DEFEASE
NUMBER NUMBER NATOR NAME REMAINING BALANCE AT MATURITY START END DATE
AMORT- / ARD DATE
IZATION
TERM
(MONTHS)
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows 359 ####### ############ 01/01/03 07/31/10
105 03-0810413 GCM Stonegate One 359 ####### ############ 01/01/03 07/31/10
111 03-0810092 GCM Granite State Marketplace 333 ####### ############ 01/01/03 05/31/08
112 11483 GCM Pacific Plaza 356 ####### ############ 01/01/03 04/30/10
116 03-0812601 GCM Webster Building 352 ####### ############ 01/01/03 12/31/09
120 03-0810405 GCM 801 Boylston Street 270.3404 ####### 8,641,402.47 01/01/03 05/31/10
122 03-0810402 GCM Simchik Four Property
Portfolio 355 ####### 9,030,561.21 01/01/04 03/31/10
122a 03-0810402a GCM 100 Market Street
122b 03-0810402b GCM 9 Executive Park Drive
122c 03-0810402c GCM 1255 South Willow Street
122d 03-0810402d GCM 135 Daniel Webster
Highway
123 03-0810401 GCM Four Points Hotel by 293 ####### 8,166,373.14 01/01/03 01/31/10
Sheraton
129 11312 GCM Burlington Self Storage 356 ####### 7,245,063.89 01/01/03 04/30/10
130 11358 GCM Boynton Plaza 355 ####### 6,891,403.27 01/01/03 03/31/10
132 10511 GCM Garden Ridge 359 ####### 6,410,871.89 01/01/03 07/31/10
133 2010092 GCM 300 West Pratt Street 352 ####### 6,316,486.79 01/01/03 12/31/09
134 2010093 GCM The GTE Building 354 ####### 6,199,267.50 01/01/03 02/28/10
135 2010096 GCM Hamlin Court 354 ####### 6,196,874.77 01/01/03 02/28/10
138 03-0810219 GCM Michael's Plaza 352 ####### 5,626,103.89 01/01/03 12/31/09
139 03-0810404 GCM Mountain Vista Apartments 354 ####### 5,440,167.14 01/01/03 02/28/10
& Cibola Village
139a 03-0810404a GCM Mountain Vista Apartments
139b 03-0810404b GCM Cibola Village
141 03-0812040 GCM 300 West Hubbard Street 352 ####### 3,203,659.77 01/01/03 12/31/09
Building
142 03-0812041 GCM 445 North Wells Street 354 ####### 1,997,455.92 01/01/03 02/28/10
Building
143 03-0810224 GCM Miracle Mile Business 353 ####### 5,131,700.85 NAP NAP
Center
144 03-0810256 GCM Folsom Self-Storage 357 ####### 5,061,310.68 01/01/03 05/31/10
147 03-0810259 GCM Northpointe Shopping 358 ####### 4,684,476.44 NAP NAP
Center
148 03-0810406 GCM 2 Willow Street 357 ####### 4,689,327.96 NAP NAP
150 9.911E+09 GCM Calaveras Landing 351 ####### 4,648,782.57 01/01/03 11/30/09
Shopping Center
151 1010091 GCM Healtheon 353 ####### 4,623,910.76 01/01/03 01/31/10
152 03-0812028 GCM 444 North Wells Street 354 ####### 4,648,886.38 01/01/03 02/28/10
Building
153 03-0810239 GCM 1600 Corporate Center 356 ####### 4,578,618.92 01/01/03 04/30/10
Drive
154 03-0810417 GCM Little Creek Apartments 358 ####### 4,496,994.44 01/01/03 06/30/10
155 03-0810177 GCM 271 - 285 East Fordham 347 ####### 4,485,072.55 01/01/03 07/31/09
Road
157 03-0810247 GCM El Dorado Plaza 358 ####### 3,968,739.20 01/01/03 06/30/10
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY YIELD YIELD PREPAY- PREPAY- YIELD
NUMBER NUMBER NATOR NAME MAINTEN- MAINTEN- MENT MENT MAINTEN-
ANCE ANCE PENALTY PENALTY ANCE
PERIOD PERIOD END START END CALCULA-
START DATE DATE DATE DATE TION
METHOD
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows NAP NAP NAP NAP NAP
105 03-0810413 GCM Stonegate One NAP NAP NAP NAP NAP
111 03-0810092 GCM Granite State Marketplace NAP NAP NAP NAP NAP
112 11483 GCM Pacific Plaza NAP NAP NAP NAP NAP
116 03-0812601 GCM Webster Building NAP NAP NAP NAP NAP
120 03-0810405 GCM 801 Boylston Street NAP NAP NAP NAP NAP
122 03-0810402 GCM Simchik Four Property
Portfolio NAP NAP NAP NAP NAP
122a 03-0810402a GCM 100 Market Street
122b 03-0810402b GCM 9 Executive Park Drive
122c 03-0810402c GCM 1255 South Willow Street
122d 03-0810402d GCM 135 Daniel Webster
Highway
123 03-0810401 GCM Four Points Hotel by NAP NAP NAP NAP NAP
Sheraton
129 11312 GCM Burlington Self Storage NAP NAP NAP NAP NAP
130 11358 GCM Boynton Plaza NAP NAP NAP NAP NAP
132 10511 GCM Garden Ridge NAP NAP NAP NAP NAP
133 2010092 GCM 300 West Pratt Street NAP NAP NAP NAP NAP
134 2010093 GCM The GTE Building NAP NAP NAP NAP NAP
135 2010096 GCM Hamlin Court NAP NAP NAP NAP NAP
138 03-0810219 GCM Michael's Plaza NAP NAP NAP NAP NAP
139 03-0810404 GCM Mountain Vista Apartments NAP NAP NAP NAP NAP
& Cibola Village
139a 03-0810404a GCM Mountain Vista Apartments
139b 03-0810404b GCM Cibola Village
141 03-0812040 GCM 300 West Hubbard Street NAP NAP NAP NAP NAP
Building
142 03-0812041 GCM 445 North Wells Street NAP NAP NAP NAP NAP
Building
143 03-0810224 GCM Miracle Mile Business 05/01/05 01/31/10 NAP NAP Interest
Center Differential
144 03-0810256 GCM Folsom Self-Storage NAP NAP NAP NAP NAP
147 03-0810259 GCM Northpointe Shopping 10/01/05 06/30/10 NAP NAP Interest
Center Differential
148 03-0810406 GCM 2 Willow Street 09/01/05 06/30/10 NAP NAP Interest
Differential
150 9.911E+09 GCM Calaveras Landing NAP NAP NAP NAP NAP
Shopping Center
151 1010091 GCM Healtheon NAP NAP NAP NAP NAP
152 03-0812028 GCM 444 North Wells Street NAP NAP NAP NAP NAP
Building
153 03-0810239 GCM 1600 Corporate Center NAP NAP NAP NAP NAP
Drive
154 03-0810417 GCM Little Creek Apartments NAP NAP NAP NAP NAP
155 03-0810177 GCM 271 - 285 East Fordham NAP NAP NAP NAP NAP
Road
157 03-0810247 GCM El Dorado Plaza NAP NAP NAP NAP NAP
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY YIELD MASTER
NUMBER NUMBER NATOR NAME MAINTEN- SERVICING
ANCE FEE RATE
INTEREST
RATE
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
104 03-0812051 GCM Westland Meadows NAP 0.0200%
105 03-0810413 GCM Stonegate One NAP 0.0200%
111 03-0810092 GCM Granite State Marketplace NAP 0.0200%
112 11483 GCM Pacific Plaza NAP 0.0200%
116 03-0812601 GCM Webster Building NAP 0.0200%
120 03-0810405 GCM 801 Boylston Street NAP 0.0200%
122 03-0810402 GCM Simchik Four Property
Portfolio NAP 0.0200%
122a 03-0810402a GCM 100 Market Street
122b 03-0810402b GCM 9 Executive Park Drive
122c 03-0810402c GCM 1255 South Willow Street
122d 03-0810402d GCM 135 Daniel Webster
Highway
123 03-0810401 GCM Four Points Hotel by NAP 0.0200%
Sheraton
129 11312 GCM Burlington Self Storage NAP 0.0200%
130 11358 GCM Boynton Plaza NAP 0.0200%
132 10511 GCM Garden Ridge NAP 0.0200%
133 2010092 GCM 300 West Pratt Street NAP 0.0200%
134 2010093 GCM The GTE Building NAP 0.0200%
135 2010096 GCM Hamlin Court NAP 0.0200%
138 03-0810219 GCM Michael's Plaza NAP 0.0200%
139 03-0810404 GCM Mountain Vista Apartments NAP 0.0200%
& Cibola Village
139a 03-0810404a GCM Mountain Vista Apartments
139b 03-0810404b GCM Cibola Village
141 03-0812040 GCM 300 West Hubbard Street NAP 0.0200%
Building
142 03-0812041 GCM 445 North Wells Street NAP 0.0200%
Building
143 03-0810224 GCM Miracle Mile Business Treasury Flat
Center -Maturity 0.0200%
144 03-0810256 GCM Folsom Self-Storage NAP 0.0200%
147 03-0810259 GCM Northpointe Shopping Treasury Flat
Center -Maturity 0.0200%
148 03-0810406 GCM 2 Willow Street Treasury Flat
-Maturity 0.0200%
150 9.911E+09 GCM Calaveras Landing NAP 0.0200%
Shopping Center
151 1010091 GCM Healtheon NAP 0.0200%
152 03-0812028 GCM 444 North Wells Street NAP 0.0200%
Building
153 03-0810239 GCM 1600 Corporate Center NAP 0.0200%
Drive
154 03-0810417 GCM Little Creek Apartments NAP 0.0200%
155 03-0810177 GCM 271 - 285 East Fordham NAP 0.0200%
Road
157 03-0810247 GCM El Dorado Plaza NAP 0.0200%
</TABLE>
M-2-16
<PAGE> 506
<TABLE>
<CAPTION>
PROP-
ERTY
SIZE
CONTROL LOAN ORIGI- LOAN/PROPERTY PROPERTY ZIP PROPERTY UNIT
NUMBER NUMBER NATOR NAME ADDRESS CITY STATE CODE SIZE TYPE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing Retail 30701 - 30791 Dyer Union City CA 94587 38,625 SF
Center Street
162 03-0810251 GCM Briarwood Apartments 141 Golf Club Road Pleasant Hill CA 94523 64 Units
164 03-0810191 GCM Conquistador Apartments 3343 South 1300 East Salt Lake City UT 84106 121 Units
165 11432 GCM Greenhill Corporate 1161 McDermott Drive West Goshen PA 19380 35,225 SF
Center Township
166 03-0812034 GCM Northridge Apartments 8114 West Britton Road Oklahoma City OK 73132 216 Units
167 03-0812035 GCM Red Coach Village 211 The Post Road Springfield OH 45503 136 Units
Apartments
170 03-0812036 GCM The Trane Company 7100 Madison Street Willowbrook IL 60521 50,157 SF
Building
177 03-0812019 GCM Wythe Shopping Center 800 East Main Street Wytheville VA 24382 100,544 SF
180 03-0812029 GCM 801 West Diversey Parkway 801 West Diversey Chicago IL 60614 17,514 SF
Parkway
181 9.91E+09 GCM Lafayette Business Park 5151 Lafayette Santa Clara CA 95054 70,200 SF
Street/2318 Calle
De Luna/5122 Calle Del
Sol
182 11573 GCM Arrow Business Center 402-446 West Arrow San Dimas CA 91773 96,101 SF
Highway
185 03-0812603 GCM Crossroads Professional 7676 New Hampshire Takoma Park MD 20783 50,745 SF
Building Avenue
187 HHCC0064 GCM Fran Murphy Building 12800 U.S. Highway 1 Juno Beach FL 33408 45,697 SF
188 03-0810412 GCM Walgreen's - South 1580 Route 112 South Medford NY 11763 13,905 SF
Medford
189 03-0810210 GCM Sav-on and Carl's Jr. 688 & 690 East Upland CA 91786 19,747 SF
Foothill Boulevard
192 10896 GCM Weatherbridge Center 1771 NW Maynard Road Cary NC 27513 50,930 SF
Buildings II and and 111
III James Jackson Avenue
194 9.904E+09 GCM 1201 Sharp Street 1201 South Sharp Street Baltimore MD 21230 47,305 SF
197 03-0810241 GCM Redondo Tower Apartments 425 West Paseo Redondo Tucson AZ 85701 96 Units
203 9.906E+09 GCM Pioneer Point Apartments 2760 Mayport Road Atlantic Beach FL 32233 100 Units
206 2E+10 GCM 6396, 6392, 6372 McLeod 6396, 6392, 6372 Las Vegas NV 89120 25,042 SF
Drive McLeod Drive
210 03-0812016 GCM Summit/Breckenridge 1009-1125 Glen Place Duluth MN 55806 107 Units
Apartments
211 HHCC0063 GCM Peppertree Apartments 2840 Las Vegas Trail Fort Worth TX 76116 152 Units
212 03-0812031 GCM Hillmount Apartments 505 Cherry Street SE Grand Rapids MI 49503 101 Units
216 03-0812030 GCM Oakwood Manor Apartments 547 Cherry Street, SE Grand Rapids MI 49503 96 Units
217 03-0812602 GCM Woodbend Apartments 2106 Waverly Parkway Opelika AL 36801 100 Units
221 03-0810254 GCM U-Stor Chambers 1800 South Chambers Aurora CO 80017 49,900 SF
Self-Storage Road
222 03-0810218 GCM 9925-9929 Jefferson 9925-9929 Jefferson Culver City CA 90232 38,764 SF
Boulevard Boulevard
226 03-0810232 GCM Oro Valley Self Storage 10880 North Mavinee Oro Valley AZ 85737 51,000 SF
Drive
231 03-0812045a GCM Senate Place Apartments 2620 - 2720 Senate Lansing Township MI 48912 32 Units
Drive
232 03-0812045b GCM Eastfield Townhouses 1014-1216 Eastfield Lansing Township MI 48917 32 Units
Road, 2705-2719
Harwick Drive
242 2.001E+10 GCM 6380 McLeod Drive 6380 McLeod Drive Las Vegas NV 89120 20,455 SF
250 03-0810220 GCM 6668 Owens Drive 6668 Owens Drive Pleasanton CA 94588 18,683 SF
251 2.001E+10 GCM 6320 - 6330 McLeod Drive 6320 - 6330 McLeod Las Vegas NV 89120 15,665 SF
Drive
252 03-0810627 GCM Rite Aid - Hillside 162-19 Hillside Avenue Jamaica NY 11432 16,079 SF
258 03-0810237 GCM Nogales Self Storage 1120 North Industrial Nogales AZ 85621 48,377 SF
Park Avenue
259 03-0810238 GCM Glendale West Self 8049 West Glendale Glendale AZ 85303 56,280 SF
Storage Avenue
263 03-0810661 GCM Airport Business Center 611 Access Road Stratford CT 06615 24,596 SF
</TABLE>
<TABLE>
<CAPTION>
CROSS
COLLATER-
ALIZED
CROSS MORTGAGE
COLLATER- LOAN GROUP
ALIZED AGGREGATE
(MORTGAGE CUT-OFF OWNER-
CONTROL LOAN ORIGI- LOAN/PROPERTY LOAN DATE SHIP ORIGINAL MORTGAGE RATE
NUMBER NUMBER NATOR NAME GROUP) BALANCE INTEREST BALANCE RATE TYPE
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing Retail No 4,232,425 Fee Simple ####### 7.7700% Fixed
Center
162 03-0810251 GCM Briarwood Apartments No 4,194,883 Fee Simple ####### 7.6900% Fixed
164 03-0810191 GCM Conquistador Apartments No 4,161,547 Fee Simple ####### 8.1100% Fixed
165 11432 GCM Greenhill Corporate No 4,089,788 Fee Simple ####### 8.3200% Fixed
Center
166 03-0812034 GCM Northridge Apartments No 4,085,920 Fee Simple ####### 7.9800% Fixed
167 03-0812035 GCM Red Coach Village No 4,083,990 Fee Simple ####### 7.9800% Fixed
Apartments
170 03-0812036 GCM The Trane Company No 3,894,616 Fee Simple ####### 8.4400% Fixed
Building
177 03-0812019 GCM Wythe Shopping Center No 3,629,791 Fee Simple ####### 8.3500% Fixed
180 03-0812029 GCM 801 West Diversey Parkway No 3,391,218 Fee Simple ####### 8.9900% Fixed
181 9.91E+09 GCM Lafayette Business Park No 3,383,355 Fee Simple ####### 8.1200% Fixed
182 11573 GCM Arrow Business Center No 3,246,693 Fee Simple ####### 8.3600% Fixed
185 03-0812603 GCM Crossroads Professional No 3,144,186 Fee Simple ####### 8.1100% Fixed
Building
187 HHCC0064 GCM Fran Murphy Building No 3,044,546 Fee Simple ####### 8.2700% Fixed
188 03-0810412 GCM Walgreen's - South No 3,006,951 Fee Simple ####### 8.2300% Fixed
Medford
189 03-0810210 GCM Sav-on and Carl's Jr. No 2,994,591 Fee Simple ####### 8.0000% Fixed
192 10896 GCM Weatherbridge Center No 2,842,834 Fee Simple ####### 8.6900% Fixed
Buildings II and
III
194 9.904E+09 GCM 1201 Sharp Street No 2,758,740 Part Fee
Simple &
Part
Leasehold ####### 8.3900% Fixed
197 03-0810241 GCM Redondo Tower Apartments No 2,592,863 Fee Simple ####### 7.9700% Fixed
203 9.906E+09 GCM Pioneer Point Apartments No 2,458,055 Fee Simple ####### 8.4200% Fixed
206 2E+10 GCM 6396, 6392, 6372 McLeod No 2,415,404 Leasehold ####### 8.5400% Fixed
Drive
210 03-0812016 GCM Summit/Breckenridge No 2,381,344 Fee Simple ####### 8.4900% Fixed
Apartments
211 HHCC0063 GCM Peppertree Apartments No 2,363,874 Fee Simple ####### 8.1800% Fixed
212 03-0812031 GCM Hillmount Apartments No 2,349,601 Fee Simple ####### 8.1500% Fixed
216 03-0812030 GCM Oakwood Manor Apartments No 2,230,130 Fee Simple ####### 8.1500% Fixed
217 03-0812602 GCM Woodbend Apartments No 2,181,165 Fee Simple ####### 8.1100% Fixed
221 03-0810254 GCM U-Stor Chambers No 2,071,653 Fee Simple ####### 8.4500% Fixed
Self-Storage
222 03-0810218 GCM 9925-9929 Jefferson No 1,995,327 Fee Simple ####### 8.5200% Fixed
Boulevard
226 03-0810232 GCM Oro Valley Self Storage No 1,716,954 Fee Simple ####### 8.5000% Fixed
231 03-0812045a GCM Senate Place Apartments Yes (G2) 1,556,107 Fee Simple 885,000 8.3000% Fixed
232 03-0812045b GCM Eastfield Townhouses Yes (G2) 1,556,107 Fee Simple 675,000 8.3000% Fixed
242 2.001E+10 GCM 6380 McLeod Drive No 1,402,676 Leasehold ####### 8.3500% Fixed
250 03-0810220 GCM 6668 Owens Drive No 1,245,346 Fee Simple ####### 8.1500% Fixed
251 2.001E+10 GCM 6320 - 6330 McLeod Drive No 1,239,024 Leasehold ####### 8.7200% Fixed
252 03-0810627 GCM Rite Aid - Hillside No 1,152,649 Fee Simple ####### 8.5900% Fixed
258 03-0810237 GCM Nogales Self Storage No 1,077,461 Fee Simple ####### 8.5000% Fixed
259 03-0810238 GCM Glendale West Self No 1,047,532 Fee Simple ####### 8.5000% Fixed
Storage
263 03-0810661 GCM Airport Business Center No 988,054 Fee Simple ####### 8.7200% Fixed
</TABLE>
<TABLE>
<CAPTION>
ANTICI-
INTEREST PATED
CONTROL LOAN ORIGI- LOAN/PROPERTY ACCRUAL LOAN CONTROL LOAN REPAY-
NUMBER NUMBER NATOR NAME METHOD TYPE NOTE DATE NUMBER NUMBER MENT DATE
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing Retail Actual/360 Balloon 04/24/00 161 03-0810225 NAP
Center
162 03-0810251 GCM Briarwood Apartments Actual/360 Balloon 09/25/00 162 03-0810251 NAP
164 03-0810191 GCM Conquistador Apartments Actual/360 Balloon 07/28/99 164 03-0810191 NAP
165 11432 GCM Greenhill Corporate Actual/360 Balloon 09/21/00 165 11432 NAP
Center
166 03-0812034 GCM Northridge Apartments Actual/360 Balloon 05/03/00 166 03-0812034 NAP
167 03-0812035 GCM Red Coach Village Actual/360 Balloon 04/12/00 167 03-0812035 NAP
Apartments
170 03-0812036 GCM The Trane Company Actual/360 Balloon 04/27/00 170 03-0812036 NAP
Building
177 03-0812019 GCM Wythe Shopping Center Actual/360 Balloon 03/30/00 177 03-0812019 NAP
180 03-0812029 GCM 801 West Diversey Parkway Actual/360 Balloon 05/18/00 180 03-0812029 NAP
181 9.91E+09 GCM Lafayette Business Park Actual/360 Balloon 02/25/00 181 9.91E+09 NAP
182 11573 GCM Arrow Business Center Actual/360 Balloon 09/28/00 182 11573 NAP
185 03-0812603 GCM Crossroads Professional Actual/360 Balloon 09/07/00 185 03-0812603 NAP
Building
187 HHCC0064 GCM Fran Murphy Building Actual/360 Balloon 09/18/00 187 HHCC0064 NAP
188 03-0810412 GCM Walgreen's - South Actual/360 Balloon 10/02/00 188 03-0810412 NAP
Medford
189 03-0810210 GCM Sav-on and Carl's Jr. Actual/360 Balloon 08/31/00 189 03-0810210 NAP
192 10896 GCM Weatherbridge Center Actual/360 Full 07/12/00 192 10896 NAP
Buildings II and Amort
III
194 9.904E+09 GCM 1201 Sharp Street Actual/360 Balloon 12/10/99 194 9.904E+09 NAP
197 03-0810241 GCM Redondo Tower Apartments Actual/360 Balloon 06/27/00 197 03-0810241 NAP
203 9.906E+09 GCM Pioneer Point Apartments Actual/360 Balloon 06/24/99 203 9.906E+09 NAP
206 2E+10 GCM 6396, 6392, 6372 McLeod Actual/360 Balloon 03/02/00 206 2E+10 NAP
Drive
210 03-0812016 GCM Summit/Breckenridge Actual/360 Balloon 02/10/00 210 03-0812016 NAP
Apartments
211 HHCC0063 GCM Peppertree Apartments Actual/360 Balloon 06/08/00 211 HHCC0063 NAP
212 03-0812031 GCM Hillmount Apartments Actual/360 Balloon 03/31/00 212 03-0812031 NAP
216 03-0812030 GCM Oakwood Manor Apartments Actual/360 Balloon 03/31/00 216 03-0812030 NAP
217 03-0812602 GCM Woodbend Apartments Actual/360 Balloon 08/14/00 217 03-0812602 NAP
221 03-0810254 GCM U-Stor Chambers Actual/360 Balloon 08/02/00 221 03-0810254 NAP
Self-Storage
222 03-0810218 GCM 9925-9929 Jefferson Actual/360 Balloon 06/09/00 222 03-0810218 NAP
Boulevard
226 03-0810232 GCM Oro Valley Self Storage Actual/360 Balloon 06/07/00 226 03-0810232 NAP
231 03-0812045a GCM Senate Place Apartments Actual/360 Balloon 06/15/00 231 03-0812045a NAP
232 03-0812045b GCM Eastfield Townhouses Actual/360 Balloon 06/15/00 232 03-0812045b NAP
242 2.001E+10 GCM 6380 McLeod Drive Actual/360 Balloon 08/07/00 242 2.001E+10 NAP
250 03-0810220 GCM 6668 Owens Drive Actual/360 Balloon 04/17/00 250 03-0810220 NAP
251 2.001E+10 GCM 6320 - 6330 McLeod Drive Actual/360 Balloon 06/01/00 251 2.001E+10 NAP
252 03-0810627 GCM Rite Aid - Hillside Actual/360 Full 05/26/99 252 03-0810627 NAP
Amort
258 03-0810237 GCM Nogales Self Storage Actual/360 Balloon 06/07/00 258 03-0810237 NAP
259 03-0810238 GCM Glendale West Self Actual/360 Balloon 06/07/00 259 03-0810238 NAP
Storage
263 03-0810661 GCM Airport Business Center Actual/360 Balloon 09/30/99 263 03-0810661 NAP
</TABLE>
<TABLE>
<CAPTION>
STATED
ORIGINAL ORIGINAL REMAIN-
MONTHLY TERM TO AMORT- ING TERM
SCHEDULED DEBT MATURITY IZATION SEASON- TO MATURITY
CONTROL LOAN ORIGI- LOAN/PROPERTY MATURITY SERVICE /ARD TERM ING /ARD
NUMBER NUMBER NATOR NAME DATE PAYMENT (MONTHS) (MONTHS) (MONTHS) (MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing Retail ####### 30,506.28 120 360 7 113
Center
162 03-0810251 GCM Briarwood Apartments ####### 29,915.36 120 360 2 118
164 03-0810191 GCM Conquistador Apartments ####### 31,140.79 120 360 16 104
165 11432 GCM Greenhill Corporate ####### 30,958.56 120 360 2 118
Center
166 03-0812034 GCM Northridge Apartments ####### 30,027.20 120 360 6 114
167 03-0812035 GCM Red Coach Village ####### 30,027.20 120 360 7 113
Apartments
170 03-0812036 GCM The Trane Company ####### 29,883.12 120 360 7 113
Building
177 03-0812019 GCM Wythe Shopping Center ####### 27,640.34 120 360 8 112
180 03-0812029 GCM 801 West Diversey Parkway ####### 27,332.71 120 360 6 114
181 9.91E+09 GCM Lafayette Business Park ####### 25,233.00 120 360 9 111
182 11573 GCM Arrow Business Center ####### 24,667.94 120 360 2 118
185 03-0812603 GCM Crossroads Professional ####### 24,542.19 120 300 2 118
Building
187 HHCC0064 GCM Fran Murphy Building ####### 24,088.51 120 300 2 118
188 03-0810412 GCM Walgreen's - South ####### 23,692.13 120 300 1 119
Medford
189 03-0810210 GCM Sav-on and Carl's Jr. ####### 22,012.94 120 360 3 117
192 10896 GCM Weatherbridge Center ####### 28,612.45 180 180 4 176
Buildings II and
III
194 9.904E+09 GCM 1201 Sharp Street ####### 21,121.39 120 360 11 109
197 03-0810241 GCM Redondo Tower Apartments ####### 19,023.53 120 360 5 115
203 9.906E+09 GCM Pioneer Point Apartments ####### 18,928.68 120 360 17 103
206 2E+10 GCM 6396, 6392, 6372 McLeod ####### 18,715.00 120 360 8 112
Drive
210 03-0812016 GCM Summit/Breckenridge ####### 19,309.28 120 300 9 111
Apartments
211 HHCC0063 GCM Peppertree Apartments ####### 17,688.52 120 360 5 115
212 03-0812031 GCM Hillmount Apartments ####### 17,564.26 120 360 8 112
216 03-0812030 GCM Oakwood Manor Apartments ####### 16,671.16 120 360 8 112
217 03-0812602 GCM Woodbend Apartments ####### 16,200.62 120 360 3 117
221 03-0810254 GCM U-Stor Chambers ####### 15,881.48 120 360 3 117
Self-Storage
222 03-0810218 GCM 9925-9929 Jefferson ####### 15,406.63 120 360 5 115
Boulevard
226 03-0810232 GCM Oro Valley Self Storage ####### 13,233.00 120 360 5 115
231 03-0812045a GCM Senate Place Apartments ####### 6,679.84 120 360 5 115
232 03-0812045b GCM Eastfield Townhouses ####### 5,094.80 120 360 5 115
242 2.001E+10 GCM 6380 McLeod Drive ####### 10,654.23 120 360 3 117
250 03-0810220 GCM 6668 Owens Drive ####### 9,303.10 120 360 7 113
251 2.001E+10 GCM 6320 - 6330 McLeod Drive ####### 9,748.14 120 360 6 114
252 03-0810627 GCM Rite Aid - Hillside ####### 11,204.99 204 204 18 186
258 03-0810237 GCM Nogales Self Storage ####### 8,304.27 120 360 5 115
259 03-0810238 GCM Glendale West Self ####### 8,073.59 120 360 5 115
Storage
263 03-0810661 GCM Airport Business Center ####### 8,201.06 120 300 14 106
</TABLE>
<TABLE>
<CAPTION>
STATED
REMAINING
AMORT-
IZATION LOAN BALANCE DEFEASE
CONTROL LOAN ORIGI- LOAN/PROPERTY TERM CUT-OFF DATE AT MATURITY START DEFEASE
NUMBER NUMBER NATOR NAME (MONTHS) BALANCE /ARD DATE END DATE
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing Retail 353 ####### 3,780,072.41 01/01/03 01/31/10
Center
162 03-0810251 GCM Briarwood Apartments 358 ####### 3,727,310.33 01/01/03 03/31/10
164 03-0810191 GCM Conquistador Apartments 344 ####### 3,767,153.50 01/01/03 04/30/09
165 11432 GCM Greenhill Corporate 358 ####### 3,688,122.92 01/01/03 06/30/10
Center
166 03-0812034 GCM Northridge Apartments 354 ####### 3,664,543.96 01/01/03 02/28/10
167 03-0812035 GCM Red Coach Village 353 ####### 3,665,231.99 01/01/03 01/31/10
Apartments
170 03-0812036 GCM The Trane Company 353 ####### 3,531,334.99 01/01/03 01/31/10
Building
177 03-0812019 GCM Wythe Shopping Center 352 ####### 3,286,374.38 01/01/03 12/31/09
180 03-0812029 GCM 801 West Diversey Parkway 354 ####### 3,109,240.20 01/01/03 02/28/10
181 9.91E+09 GCM Lafayette Business Park 351 ####### 3,049,717.75 01/01/03 11/30/09
182 11573 GCM Arrow Business Center 358 ####### 2,930,489.34 01/01/03 06/30/10
185 03-0812603 GCM Crossroads Professional 298 ####### 2,604,013.03 01/01/03 03/31/10
Building
187 HHCC0064 GCM Fran Murphy Building 298 ####### 2,532,797.86 01/01/03 06/30/10
188 03-0810412 GCM Walgreen's - South 299 ####### 2,496,191.64 01/01/03 07/31/10
Medford
189 03-0810210 GCM Sav-on and Carl's Jr. 357 ####### 2,682,025.64 01/01/03 05/31/10
192 10896 GCM Weatherbridge Center 176 ####### 79,398.11 01/01/03 04/30/15
Buildings II and
III
194 9.904E+09 GCM 1201 Sharp Street 349 ####### 2,504,565.71 01/01/03 09/30/09
197 03-0810241 GCM Redondo Tower Apartments 355 ####### 2,323,637.96 01/01/03 03/31/10
203 9.906E+09 GCM Pioneer Point Apartments 343 ####### 2,240,961.00 01/01/03 06/30/09
206 2E+10 GCM 6396, 6392, 6372 McLeod 352 ####### 2,195,870.09 01/01/03 12/31/09
Drive
210 03-0812016 GCM Summit/Breckenridge 291 ####### 2,006,116.70 01/01/03 11/30/09
Apartments
211 HHCC0063 GCM Peppertree Apartments 355 ####### 2,128,644.62 01/01/03 03/31/10
212 03-0812031 GCM Hillmount Apartments 352 ####### 2,117,943.65 01/01/03 12/31/09
216 03-0812030 GCM Oakwood Manor Apartments 352 ####### 2,010,251.98 01/01/03 12/31/09
217 03-0812602 GCM Woodbend Apartments 357 ####### 1,958,494.26 01/01/03 02/28/10
221 03-0810254 GCM U-Stor Chambers 357 ####### 1,874,548.25 01/01/03 05/31/10
Self-Storage
222 03-0810218 GCM 9925-9929 Jefferson 355 ####### 1,810,431.58 01/01/03 03/31/10
Boulevard
226 03-0810232 GCM Oro Valley Self Storage 355 ####### 1,557,172.19 01/01/03 03/31/10
231 03-0812045a GCM Senate Place Apartments 355 ####### 797,097.02 01/01/03 03/31/10
232 03-0812045b GCM Eastfield Townhouses 355 ####### 607,954.09 01/01/03 03/31/10
242 2.001E+10 GCM 6380 McLeod Drive 357 ####### 1,266,383.15 01/01/03 05/31/10
250 03-0810220 GCM 6668 Owens Drive 353 ####### 1,121,963.01 01/01/03 01/31/10
251 2.001E+10 GCM 6320 - 6330 McLeod Drive 354 ####### 1,129,578.61 01/01/03 02/28/10
252 03-0810627 GCM Rite Aid - Hillside 186 ####### 43,283.61 01/01/03 02/29/16
258 03-0810237 GCM Nogales Self Storage 355 ####### 977,190.19 01/01/03 03/31/10
259 03-0810238 GCM Glendale West Self 355 ####### 950,047.13 01/01/03 03/31/10
Storage
263 03-0810661 GCM Airport Business Center 286 ####### 841,317.63 01/01/03 06/30/09
</TABLE>
<TABLE>
<CAPTION>
YIELD
YIELD YIELD PREPAY- PREPAY- MAINTEN-
MAINTEN- MAINTEN- MENT MENT ANCE
ANCE ANCE PENALTY PENALTY CALCULA-
CONTROL LOAN ORIGI- LOAN/PROPERTY PERIOD PERIOD END START END TION
NUMBER NUMBER NATOR NAME START DATE DATE DATE DATE METHOD
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing Retail NAP NAP NAP NAP NAP
Center
162 03-0810251 GCM Briarwood Apartments NAP NAP NAP NAP NAP
164 03-0810191 GCM Conquistador Apartments NAP NAP NAP NAP NAP
165 11432 GCM Greenhill Corporate NAP NAP NAP NAP NAP
Center
166 03-0812034 GCM Northridge Apartments NAP NAP NAP NAP NAP
167 03-0812035 GCM Red Coach Village NAP NAP NAP NAP NAP
Apartments
170 03-0812036 GCM The Trane Company NAP NAP NAP NAP NAP
Building
177 03-0812019 GCM Wythe Shopping Center NAP NAP NAP NAP NAP
180 03-0812029 GCM 801 West Diversey Parkway NAP NAP NAP NAP NAP
181 9.91E+09 GCM Lafayette Business Park NAP NAP NAP NAP NAP
182 11573 GCM Arrow Business Center NAP NAP NAP NAP NAP
185 03-0812603 GCM Crossroads Professional NAP NAP NAP NAP NAP
Building
187 HHCC0064 GCM Fran Murphy Building NAP NAP NAP NAP NAP
188 03-0810412 GCM Walgreen's - South NAP NAP NAP NAP NAP
Medford
189 03-0810210 GCM Sav-on and Carl's Jr. NAP NAP NAP NAP NAP
192 10896 GCM Weatherbridge Center NAP NAP NAP NAP NAP
Buildings II and
III
194 9.904E+09 GCM 1201 Sharp Street NAP NAP NAP NAP NAP
197 03-0810241 GCM Redondo Tower Apartments NAP NAP NAP NAP NAP
203 9.906E+09 GCM Pioneer Point Apartments NAP NAP NAP NAP NAP
206 2E+10 GCM 6396, 6392, 6372 McLeod NAP NAP NAP NAP NAP
Drive
210 03-0812016 GCM Summit/Breckenridge NAP NAP NAP NAP NAP
Apartments
211 HHCC0063 GCM Peppertree Apartments NAP NAP NAP NAP NAP
212 03-0812031 GCM Hillmount Apartments NAP NAP NAP NAP NAP
216 03-0812030 GCM Oakwood Manor Apartments NAP NAP NAP NAP NAP
217 03-0812602 GCM Woodbend Apartments NAP NAP NAP NAP NAP
221 03-0810254 GCM U-Stor Chambers NAP NAP NAP NAP NAP
Self-Storage
222 03-0810218 GCM 9925-9929 Jefferson NAP NAP NAP NAP NAP
Boulevard
226 03-0810232 GCM Oro Valley Self Storage NAP NAP NAP NAP NAP
231 03-0812045a GCM Senate Place Apartments NAP NAP NAP NAP NAP
232 03-0812045b GCM Eastfield Townhouses NAP NAP NAP NAP NAP
242 2.001E+10 GCM 6380 McLeod Drive NAP NAP NAP NAP NAP
250 03-0810220 GCM 6668 Owens Drive NAP NAP NAP NAP NAP
251 2.001E+10 GCM 6320 - 6330 McLeod Drive NAP NAP NAP NAP NAP
252 03-0810627 GCM Rite Aid - Hillside NAP NAP NAP NAP NAP
258 03-0810237 GCM Nogales Self Storage NAP NAP NAP NAP NAP
259 03-0810238 GCM Glendale West Self NAP NAP NAP NAP NAP
Storage
263 03-0810661 GCM Airport Business Center NAP NAP NAP NAP NAP
</TABLE>
<TABLE>
<CAPTION>
YIELD
MAINTEN-
ANCE MASTER
CONTROL LOAN ORIGI- LOAN/PROPERTY INTEREST SERVICING
NUMBER NUMBER NATOR NAME RATE FEE RATE
---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
161 03-0810225 GCM Union Landing Retail NAP 0.0200%
Center
162 03-0810251 GCM Briarwood Apartments NAP 0.0200%
164 03-0810191 GCM Conquistador Apartments NAP 0.0200%
165 11432 GCM Greenhill Corporate NAP 0.0200%
Center
166 03-0812034 GCM Northridge Apartments NAP 0.0200%
167 03-0812035 GCM Red Coach Village NAP 0.0200%
Apartments
170 03-0812036 GCM The Trane Company NAP 0.0200%
Building
177 03-0812019 GCM Wythe Shopping Center NAP 0.0200%
180 03-0812029 GCM 801 West Diversey Parkway NAP 0.0200%
181 9.91E+09 GCM Lafayette Business Park NAP 0.0200%
182 11573 GCM Arrow Business Center NAP 0.0200%
185 03-0812603 GCM Crossroads Professional NAP 0.0200%
Building
187 HHCC0064 GCM Fran Murphy Building NAP 0.0200%
188 03-0810412 GCM Walgreen's - South NAP 0.0200%
Medford
189 03-0810210 GCM Sav-on and Carl's Jr. NAP 0.0200%
192 10896 GCM Weatherbridge Center NAP 0.0200%
Buildings II and
III
194 9.904E+09 GCM 1201 Sharp Street NAP 0.0200%
197 03-0810241 GCM Redondo Tower Apartments NAP 0.0200%
203 9.906E+09 GCM Pioneer Point Apartments NAP 0.0200%
206 2E+10 GCM 6396, 6392, 6372 McLeod NAP 0.0200%
Drive
210 03-0812016 GCM Summit/Breckenridge NAP 0.0200%
Apartments
211 HHCC0063 GCM Peppertree Apartments NAP 0.0200%
212 03-0812031 GCM Hillmount Apartments NAP 0.0200%
216 03-0812030 GCM Oakwood Manor Apartments NAP 0.0200%
217 03-0812602 GCM Woodbend Apartments NAP 0.0200%
221 03-0810254 GCM U-Stor Chambers NAP 0.0200%
Self-Storage
222 03-0810218 GCM 9925-9929 Jefferson NAP 0.0200%
Boulevard
226 03-0810232 GCM Oro Valley Self Storage NAP 0.0200%
231 03-0812045a GCM Senate Place Apartments NAP 0.0200%
232 03-0812045b GCM Eastfield Townhouses NAP 0.0200%
242 2.001E+10 GCM 6380 McLeod Drive NAP 0.0200%
250 03-0810220 GCM 6668 Owens Drive NAP 0.0200%
251 2.001E+10 GCM 6320 - 6330 McLeod Drive NAP 0.0200%
252 03-0810627 GCM Rite Aid - Hillside NAP 0.0200%
258 03-0810237 GCM Nogales Self Storage NAP 0.0200%
259 03-0810238 GCM Glendale West Self NAP 0.0200%
Storage
263 03-0810661 GCM Airport Business Center NAP 0.0200%
</TABLE>
M-2-17
<PAGE> 507
EXHIBIT B
CORPORATE REPRESENTATIONS AND WARRANTIES
The Seller hereby represents and warrants, as of the Closing Date,
that:
(a) The Seller is a duly formed corporation, validly existing and in
good standing under the laws of Delaware. The principal place of business and
chief executive office of the Seller is located in the State of Connecticut.
(b) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
(c) This Agreement, assuming due authorization, execution and delivery
by the Purchaser, constitutes a valid, legal and binding obligation of the
Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(d) The execution and delivery of this Agreement by the Seller, and the
performance and compliance with the terms of this Agreement by the Seller, will
not violate the Seller's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or instrument to which
it is a party or which is applicable to it or any of its assets. Attached hereto
as Exhibit E are true, correct, and complete copies of the Seller's
organizational documents in effect as of the Closing Date.
(e) The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the Seller's
good faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(f) No litigation is pending or, to the best of the Seller's knowledge,
threatened against the Seller which would prohibit the Seller from entering into
this Agreement or, in the Seller's good faith and reasonable judgment, is likely
to materially and adversely affect either the ability of the Seller to perform
its obligations under this Agreement or the financial condition of the Seller.
(g) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation
M-2-18
<PAGE> 508
by the Seller of the transactions contemplated herein, except for those
consents, approvals, authorizations and orders that previously have been
obtained and those filings and registrations that previously have been
completed.
(h) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(i) The transfer of the Mortgage Loans by the Seller to the Purchaser,
as contemplated herein, is not subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(j) The Seller is not transferring the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud its present or future creditors.
(k) The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
(l) 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.
(m) 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.
(n) In connection with, and at the time of, its transfer of the
Mortgage Loans hereunder, the Seller will receive consideration constituting at
least reasonably equivalent value and fair consideration for the assets
transferred.
(o) The execution, delivery and performance of this Agreement by the
Seller constitute bona fide and arm's length transactions and are undertaken in
the ordinary course of business of the Seller.
(p) Seller is not a party to or bound by a written or oral agreement
granting to any person or entity an option or right of first refusal or other
arrangement to acquire directly or indirectly any of the Mortgage Loans.
M-2-19
<PAGE> 509
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
The Seller (with respect to each Mortgage Loan unless otherwise indicated)
hereby represents and warrants to SBMS VII and its successors and assigns as
provided in this Agreement (subject to the qualifications with respect to
matters of enforceability set forth below in the last paragraph of this Exhibit
C) that as of the date specified below or, if no such date is specified, as of
the date hereof, and as of the Closing Date and subject to the exceptions
disclosed on Schedule C-1 attached hereto:
(1) Mortgage Loan Characteristics. The information set forth in the
Mortgage Loan Schedule is true, correct and complete in all material respects;
provided, however, that with respect to the information set forth with respect
to each Mortgage Loan under the captions "Physical Occupancy %," "Occupancy As
of Date," "1998 NOI," "1999 NOI," "Underwritten NOI," "Underwritten Net Cash
Flow" and "Underwritten NOI DSCR," the Seller represents only that such
information is a correct and accurate reproduction or derivation, as adjusted by
the Seller in accordance with its customary underwriting practices and
procedures, of the information provided to it by the related Borrower (or an
affiliate or principal thereof) and takes no responsibility for the accuracy or
completeness of any such information provided by the related Borrower (or such
affiliate or principal); provided, further, that the Seller has no actual
knowledge that such information is incorrect, inaccurate or incomplete following
the reasonable and customary due diligence performed by the Seller in connection
with its origination or purchase of the Mortgage Loans.
(2) Domestic Borrower. The related Borrower is an individual who is a
citizen of, or an entity organized under the laws of, a state of the United
States of America.
(3) Single-Purpose, Bankruptcy Remote Entity. Each Borrower of a
Mortgage Loan in excess of $25,000,000 is an entity which has represented in
connection with the origination of the Mortgage Loan, and whose organizational
documents as of the date of origination of the Mortgage Loan provide that so
long as the Mortgage Loan is outstanding, it will be a single-purpose entity
whose activities and ability to incur debt are restricted by the applicable
Mortgage or the organizational documents in a manner intended to make the
likelihood of bankruptcy proceedings being commenced by or against such Borrower
remote, and as to which the Borrower has delivered an opinion of counsel
concerning substantive non-consolidation and as to which the Borrower has at
least one independent director. For this purpose, "single-purpose entity" shall
mean a Person, other than an individual, which does not engage in any business
unrelated to the related Mortgaged Property and its financing, does not have any
assets other than those related to its interest in such Mortgaged Property or
its financing, or any indebtedness other than as permitted by the related
Mortgage or the other Mortgage Loan documents, has its own books and records
separate and apart from any other Person and holds itself out as being a legal
entity, separate and apart from any other Person.
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(4) Delivery of Mortgage Loans Documents. The Seller has caused or will
cause to be delivered to the Purchaser (or its designee) within the time period
prescribed in Section 2 each of the documents comprising the Mortgage File for
such Mortgage Loan.
(5) Payment Current. All payments required to be made with respect to
such Mortgage Loan under the terms of the related Mortgage Note or the related
Mortgage (inclusive of any applicable grace or cure period) up to the Closing
Date have been made. Within the twelve months preceding the Closing Date, there
has not been any delinquency in excess of 30 days with respect to such Mortgage
Loan.
(6) Equity Participation or Participation Interest. Such Mortgage Loan
contains no equity participation by the Seller and is a whole loan and not a
participation interest. Neither the related Note nor the related Mortgage
provides for negative amortization, unless the Mortgage Loan is an ARD loan, or
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property. The Seller has no ownership interest in
such Mortgaged Property or the related Borrower other than in such Mortgage Loan
being sold and assigned. Neither the Seller nor any affiliate of the Seller has
any obligation to make any capital contributions to the related Borrower under
the Mortgage or any other related Mortgage Loan document.
(7) Compliance with Applicable Laws. As of the date of its origination,
such Mortgage Loan either complied with, or was exempt from, applicable federal
or state laws, regulations and other requirements pertaining to usury. To the
best of the Seller's knowledge, as of the date of origination of such Mortgage
Loan, the related originator complied in all material respects with the
requirements of any and all other federal, state or local laws applicable to the
origination, servicing and collection of such Mortgage Loan. No governmental or
regulatory approval or consent is required for the sale of such Mortgage Loan by
the Seller, and the Seller has full right, power and authority to sell such
Mortgage Loan. To the extent necessary to ensure the enforceability of such
Mortgage Loan and the effective sale, transfer and assignment thereof and of the
related Mortgage Note, the originator and/or the Seller and, if applicable, each
subsequent holder of the related Mortgage Note each was qualified and
appropriately licensed to transact business in the jurisdiction in which the
related Mortgaged Property is located at the time such entity had possession of
the related Mortgage Note.
(8) Proceeds Fully Disbursed. The proceeds of such Mortgage Loan have
been fully disbursed (although certain reserve accounts controlled by the Seller
may have been established as described in Schedule C-2), and there is no
requirement for future advances thereunder.
(9) Origination Expenses Paid. All costs, fees and expenses incurred in
connection with the origination and closing of such Mortgage Loan, including,
without limitation, recording costs and fees, have been paid to the appropriate
person or arrangements have been made for their payment to the appropriate
person on a timely basis by the related Borrower.
(10) Documents Valid. Each of the related Mortgage Note, the related
Mortgage and any other related Mortgage Loan document is the legal, valid and
binding
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obligation of the related Borrower, the related guarantor or other party
executing such document (subject to any non-recourse or partial recourse
provisions contained therein), and is enforceable in accordance with its terms.
There is no valid offset, defense, counterclaim or right of rescission with
respect to such Mortgage Note, Mortgage or any other Mortgage Loan document, nor
will the operation of any of the terms of such Mortgage Note or Mortgage, or the
exercise of any right thereunder, render either such Mortgage Note or Mortgage
unenforceable or subject to any valid offset, defense, counterclaim or right of
rescission, including, without limitation, the defense of usury, and the Seller
has no knowledge that any such offset, defense, counterclaim, or right of
rescission has been asserted or is available with respect thereto. Except as
described in the immediately following sentence, the related Mortgage Note and
the related Mortgage do not require the related mortgagee to release any portion
of the related Mortgaged Property except upon payment in full of such Mortgage
Loan or the exercise of a defeasance feature. In the case of certain Mortgaged
Properties securing cross-collateralized Mortgage Loans, certain Mortgage Loans
secured by multiple Mortgaged Properties, and certain Mortgage Loans secured by
one or more parcels constituting a single Mortgaged Property, the related
mortgagee may be required to release a Mortgaged Property or a portion thereof
upon payment of a portion of the related Mortgage Loan as specified in the
related Mortgage Loan documents.
(11) Assignment of Mortgage; Note Endorsement. The related Assignment
of Mortgage (but for the insertion of the name of the assignee and any related
recording information which is not yet available to the Seller) is or will be in
recordable form and constitutes or will constitute the Seller's legal, valid and
binding assignment to the Purchaser of the related Mortgage and any related
Assignment of Leases or assignment of Assignment of Leases. The Seller's
endorsement and delivery of the related Mortgage Note to the Purchaser in
accordance with the terms of this Agreement constitutes or will constitute the
Seller's legal, valid and binding assignment to the Purchaser of such Mortgage
Note, and together with the Seller's execution and delivery of such Assignment
of Mortgage to the Purchaser, legally and validly conveys or will convey all
right, title and interest of the Seller in such Mortgage Loan to the Purchaser.
Neither the related Mortgage Note nor the related Mortgage contain provisions
limiting the right or ability of Seller to assign, transfer and convey such
documents.
(12) Assignment of Leases. There exists as part of the related Mortgage
File an Assignment of Leases (either as a separate instrument or incorporated
into the related Mortgage); and such Assignment of Leases creates in favor of
the holder, a valid, perfected and (subject to the exceptions set forth in
paragraph 13 below) enforceable lien of the same priority as the related
Mortgage, in the property and rights described therein;
(13) First Lien. The related Mortgage is a legal, valid and enforceable
first lien on the related Mortgaged Property (including all buildings and
improvements on such Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems located in or annexed
to such buildings, and all additions, alterations and replacements made at any
time prior to the closing date of such Mortgage Loan with respect to the
foregoing, but excluding any related personal property) which Mortgaged Property
is free and clear of all liens and encumbrances having priority over or equal to
the first lien of such Mortgage, except for (a) the lien of current real estate
taxes and special assessments not yet delinquent or accruing interest or
penalties, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording of such Mortgage
which do not
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materially and adversely (i) affect the value of such Mortgaged Property as
security for such Mortgage Loan, or (ii) interfere with the related Borrower's
ability to make required interest and principal payments or to make use of such
Mortgaged Property for the intended purposes therefor, (c) leases and subleases
pertaining to such Mortgaged Property which the Seller did not require to be
subordinated to the lien of such Mortgage (provided that such leases and
subleases, if any, are with entities which are not affiliated with the Seller),
and (d) other matters which do not, individually or in the aggregate, materially
and adversely (i) affect the value of such Mortgaged Property as security for
such Mortgage Loan, or (ii) interfere with the related Borrower's ability to
make required principal and interest payments or to make use of such Mortgaged
Property for the intended purposes therefor. Subject to the foregoing
exceptions, the related Assignment of Leases has the same priority as the
related Mortgage.
(14) No Modification, Release or Satisfaction. Except by a written
instrument which has been delivered to the Purchaser or its designee as a part
of the related Mortgage File, (a) neither the related Note nor the related
Mortgage (including any amendments or supplements thereto included in the
related Mortgage File, none of which alter the information on the Mortgage Loan
Schedule or make any of the other representations in this Agreement untrue) has
been impaired, waived, modified, altered, satisfied, canceled or subordinated or
rescinded, (b) the related Mortgaged Property has not been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in any part, in each such event
in a manner which would materially interfere with the benefits of the security
intended to be provided by such Mortgage.
(15) Defeasance. A Mortgage Loan which permits defeasance provides
that, no earlier than the second anniversary of the Closing Date (or, in the
case of any Mortgage Loan included in its own Loan REMIC, no earlier than the
second anniversary of the "startup day" of such Loan REMIC), the related
Borrower may obtain the release of all or a portion of the related Mortgaged
Property from the lien of the related Mortgage upon the pledge to the Trustee of
non-callable U.S. Treasury or other non-callable U.S. government obligations
that provide for payments on or prior to all successive payment dates to
maturity (or, in the case of an ARD Loan, through the related Anticipated
Repayment Date) in the amounts due on such dates and upon the satisfaction of
certain other conditions. A Mortgage Loan that permits defeasance provides that
related Borrower is responsible for all reasonable costs incurred in connection
with the defeasance of any such Mortgage Loan and the release of the related
Mortgaged Property. A Mortgage Loan that permits defeasance provides that the
related Borrower is responsible for all cots incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgage
Property. A Mortgage Loan that permits defeasance requires that a first priority
perfected security interest opinion be provided and also requires the related
Borrower to provide either a REMIC opinion, as a condition to exercise of any
defeasance option or a written confirmation from the Rating Agencies indicating
that such defeasance will not result in a reduction, withdrawal or qualification
of the respective ratings of any outstanding Classes of Certificates. For all
loans with a Cut-off Date Balance over $5,000,000, as a condition to the
exercise of any defeasance option, either rating agency confirmation or lender
approval is required. In addition, the related Mortgage or other related
Mortgage Loan documents generally require the satisfaction of one or more of the
following conditions prior to the defeasance of the Mortgage Loan and release of
the related Mortgaged Property:
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(a) the related Borrower must provide the mortgagee with a prior
written notice of not less than 30 days;
(b) the related Borrower must either (i) deliver to the mortgagee or
the servicer of the Mortgage Loan, as the case may be, government
obligations described above in this Paragraph 15 or (ii) pay to the
mortgagee or the servicer of the Mortgage Loan, as the case may be, an
amount sufficient to purchase the government obligations described above in
this Paragraph 15;
(c) the related Borrower must deliver an officer's certificate to the
effect that all of its obligations with respect to the Mortgage Loan have
been satisfied and that the Mortgage Loan is not in default; and
(d) the related Borrower must undertake to provide such other
documents or information as the mortgagee may reasonably request in
connection with such defeasance.
(16) No Delinquent Taxes or Assessments. All tax or governmental
assessments, or installments thereof, which were due on or prior to the date of
origination had been paid as of such date and the Seller knows of no tax or
governmental assessment, or if payable in installments, any installment thereof,
which became due and owing thereafter and prior to the Closing Date in respect
of the related Mortgaged Property, which, if left unpaid, would be, or might
become, a lien on such Mortgaged Property having priority over the related
Mortgage which has become delinquent such that (a) such tax, assessment or
installment has commenced to accrue interest or penalties, or (b) the applicable
taxing authority may commence proceedings to collect such tax, assessment or
installment, as applicable.
(17) Escrow or Reserve Deposits. As of the Closing Date, the related
reserve account(s), if any, contain all escrow deposits and other payments
required by the terms of the related Mortgage Loan documents (inclusive of any
applicable grace or cure period) to be held by the Seller as of the Closing
Date. Pursuant to Section 2 hereof, the Seller is transferring all amounts on
deposit in the related reserve account(s) to the Purchaser, or to the extent not
being transferred to the Purchaser, all escrow deposits and other payments
required under the related Mortgage Note, the related Mortgage and any other
related Mortgage Loan documents have been applied in accordance with their
intended purposes by the related Mortgage Loan originator, the Seller or its
agent.
(18) No Third Party Advances. The Seller has not, directly or
indirectly, (a) advanced funds, (b) induced or solicited any payment from a
Person other than the related Borrower, or (c) to the Seller's knowledge,
received any payment other than from such Borrower, for the payment of any
amount required under the related Mortgage Note or the related Mortgage, except
for interest accruing from the date of such Mortgage Note or the date of
disbursement of the proceeds of such Mortgage Loan, whichever is later, to the
date which precedes by 30 days the first Due Date under such Mortgage Note.
(19) No Condemnation or Damages. To the best of the Seller's knowledge,
no proceedings for the total or partial condemnation of the related Mortgaged
Property (a) have
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occurred since the date as of which the appraisal relied upon in the origination
of such Mortgage Loan was prepared, or (b) are pending or threatened other than,
in each such case, proceedings as to partial condemnation which do not
materially and adversely affect the value of such Mortgaged Property as security
for such Mortgage Loan. To the best of Seller's knowledge, the related Mortgaged
Property is free of material damage. The related Mortgage requires that any
related condemnation award and/or insurance proceeds be applied either to the
restoration of the related Mortgaged Property or to the payment of the
outstanding principal balance of or accrued interest on such Mortgage Loan.
(20) No Mechanics' Liens. To the Seller's knowledge, the related
Mortgaged Property (excluding any related personal property) (a) is free and
clear of any mechanics' and materialmen's liens or liens in the nature thereof,
and (b) no rights are outstanding that, under applicable law, could give rise to
any of these types of liens, any of which liens are or may be prior to, or equal
with, the lien of the related Mortgage, except, with respect to clauses (a) and
(b) above in this Paragraph 20, those which are insured against by the related
lender's title insurance policy referred to in Paragraph 24 of this Exhibit C
below.
(21) Title Survey: Improvements; Separate Tax Parcels. The Seller has
delivered an as-built survey, a survey recertification, a site plan, a recorded
plat or the like with respect to the related Mortgaged Property which satisfied,
or the Seller otherwise satisfied, the requirements of the related title
insurance company for deletion of the standard general exceptions for
encroachments, boundary and other survey matters and for easements not shown by
the public records from the related title insurance policy, except with respect
to any related Mortgaged Property located in a jurisdiction (such as the State
of Texas where survey title insurance coverage is prohibited by law) in which
the exception for easements not shown by the public records could not be deleted
and such standard general exception is customarily accepted by prudent
commercial mortgage lenders in such jurisdiction. The property described in the
survey is the same as the Mortgaged Property described in the Mortgage and the
lender's title insurance policy. Except for encroachments and similar matters
which are inconsequential, do not materially and adversely affect the value of
such Mortgaged Property as security for such Mortgage Loan, or are insured
against by the related lender's title insurance policy described in Paragraph 23
of this Exhibit C below, surveys and/or title insurance obtained at the time of
the origination of such Mortgage Loan indicated or insured that (a) none of the
improvements which were included for the purpose of determining the appraised
value of such Mortgaged Property in the related appraisal obtained in connection
with of the origination of such Mortgage Loan lie outside the boundaries and
building restriction lines of such Mortgaged Property, and (b) no improvements
on adjoining properties encroach upon such Mortgaged Property. The related
Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related lender's title insurance policy. No
one other than the related Borrower, any guarantor or indemnitor, any tenants
under the requirements of tenant leases or (if it escrows real estate taxes) the
related mortgagee is obligated under the related Mortgage Loan documents to pay
real estate taxes on the Mortgaged Property.
(22) Title. The Seller has good and marketable title to and is the sole
and lawful owner and beneficial holder of such Mortgage Loan. The Seller has
full power, authority and legal right to sell and assign such Mortgage Loan
hereunder, is the sole mortgagee or beneficiary of record under the related
Mortgage and is transferring such Mortgage Loan to the
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Purchaser free and clear of any and all liens, encumbrances, participation
interests, pledges, charges or security interests of any nature encumbering such
Mortgage Loan.
(23) Compliance with Laws. To the best of the Seller's knowledge (based
upon a letter or letters from governmental authorities, a legal opinion, an
endorsement or endorsements to the related title insurance policy, a
representation of the related Borrower at the time of origination of such
Mortgage Loan or other information reasonably acceptable to the Seller based on
the Seller's underwriting standards at the time of its origination thereof), (a)
no improvements located on or forming a part of the related Mortgaged Property
are in violation of any applicable zoning and building laws or ordinances, (b)
the related Mortgaged Property complies with all other laws and regulations
pertaining to the use and occupancy thereof (excluding Environmental Laws which
are addressed in Paragraph 35 and Paragraph 36 below) and all applicable
insurance requirements, (c) such Borrower has obtained all inspections,
licenses, permits, authorizations, and certificates necessary for such
compliance, including, but not limited to, certificates of occupancy (if
available), and (d) the Seller has not received notification from any
governmental authority that such Mortgaged Property violates or does not comply
with such laws or regulations or is being used, operated or occupied unlawfully
or that such Borrower has failed to obtain such inspections, licenses, permits,
authorizations, or certificates, except for such violation or non-compliance (i)
which does not materially and adversely affect the value of such Mortgaged
Property as security for such Mortgage Loan or the use for which such Mortgaged
Property was intended at the time of origination of such Mortgage Loan, (ii)
which is specifically addressed by the appraiser in the determination of the
related appraised value in connection with the origination of such Mortgage
Loan, or (iii) for which a reserve account held for the Seller has been
established in an amount sufficient to pay for the estimated costs to correct
such violations or non-compliance.
(24) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy or, if an ALTA lender's title insurance
policy is unavailable, another state-approved form of lender's title insurance
policy issued in an amount not less than the stated principal amount of such
Mortgage Loan (after all advances of principal) insuring the Seller and its
successors and assigns that the related Mortgage is a valid first lien on the
related Mortgaged Property, subject only to exceptions described in Paragraph 13
of this Exhibit C above (or, if such a title insurance policy has not yet been
issued in respect of such Mortgage Loan, such a policy will be issued and is
currently evidenced by a pro forma or specimen policy or by a "marked-up"
commitment for title insurance which was furnished by the related title
insurance company for purposes of closing such Mortgage Loan). The premium for
such title insurance policy has been paid in full and such title insurance
policy is (or, when issued, will be) in full force and effect, and upon
endorsement and delivery of the related Mortgage Note to the Purchaser and
recording of the related Assignment of Mortgage in favor of the Purchaser in the
applicable real estate records, such title insurance policy will inure to the
benefit of the Purchaser. Such title insurance policy (a) does not contain the
standard general exceptions for encroachments, boundary or other survey matters
and for easements not shown by the public records, other than matters which do
not materially and adversely (i) affect the value of the related Mortgaged
Property as security for the Mortgage Loan, or (ii) interfere with the related
Borrower's ability to make required principal and interest payments or to make
use of such Mortgaged Property for the intended purposes, and (b) only contains
such exceptions for encroachments, boundary and other survey matters as are
customarily accepted by prudent
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commercial mortgage lenders. The Seller and its agents have not taken, or failed
to take, any action that would materially impair the coverage benefits of any
such title insurance policy. The Seller has not made any claim under such title
insurance policy.
(25) Insurance Related to Mortgaged Property. All improvements on the
related Mortgaged Property are insured by (a) a fire and extended perils
insurance policy providing coverage on a full replacement cost basis in an
amount not less than the lesser of (i) the full replacement cost of all
improvements to such Mortgaged Property (without deduction for depreciation),
and (ii) the outstanding principal balance of such Mortgage Loan, but in any
event in an amount sufficient to avoid the operation of any co-insurance
provisions contained in such insurance policy, which policy contains a standard
mortgagee clause naming the originator or the Seller and its successors as
additional insureds; (b) an insurance policy providing business interruption or
rental continuation coverage in an amount not less than the income anticipated
from 12 months of operations of such Mortgaged Property; (c) a comprehensive
general liability insurance policy in an amount not less than $1,000,000 per
occurrence; and (d) if any material improvement on such Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards under the National Flood Insurance Act of 1968, as
amended, a flood insurance policy providing coverage in an amount not less than
the lesser of (i) the stated principal amount of the related Mortgage Note, and
(ii) the maximum amount of insurance available under the Flood Disaster
Protection Act of 1973, as amended. As of the Closing Date, the insurance
premium for each such insurance policy shall have been paid or escrowed. Each
such insurance policy contains a clause providing that it is not terminable and
may not be reduced without 30 days' prior written notice to the mortgagee
(except that, in the event of nonpayment of insurance premiums, each such
insurance policy provides for termination upon not less than 10 days' prior
written notice), and no such notice has been received by the Seller. With
respect to each such insurance policy, the Seller has received a certificate of
insurance or similar document dated within the last 12 months to the effect that
such insurance policy is in full force and effect. The Seller has no knowledge
of any action, omission, misrepresentation, negligence or fraud which would
result in the failure of any such insurance policy. The related Mortgage Loan
documents require the related Borrower or a tenant of such Borrower to maintain
each such insurance policy at its expense, but authorizes the mortgagee to
maintain any such insurance policy at the related Borrower's expense upon such
Borrower's or such tenant's failure to do so (subject to any applicable notice
or cure periods). The related Mortgage and insurance policy require that any
related insurance proceeds, in excess of a specified amount, will be applied
either to the repair or restoration of all or part of the related Mortgaged
Property or to the payment of the outstanding principal balance of or accrued
interest on such Mortgage Loan.
(26) UCC Financing Statements. One or more Uniform Commercial Code
financing statements covering all furniture, fixtures, equipment and other
personal property (a) which are collateral under the related Mortgage or under a
security or similar agreement executed and delivered in connection with such
Mortgage Loan, and (b) in which a security interest can be perfected by the
filing of Uniform Commercial Code financing statement(s) under applicable law,
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law a security interest in such furniture,
fixtures, equipment and other personal property.
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(27) Default, Breach and Acceleration. There is no material default,
breach, violation or event of acceleration existing under the related loan
agreement, related Mortgage Note or the related Mortgage, and the Seller has no
knowledge of any event (other than failure to make payments due but not yet
delinquent) 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 thereunder; provided that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Exhibit C. The
Seller has no knowledge, after performing at the time of origination of the
related Mortgage Loan due diligence customarily performed by prudent commercial
lenders at the time of such origination, that the related Borrower is a debtor
in any state or federal bankruptcy or insolvency proceeding.
(28) Customary Provisions. The related Mortgage Note, the related
Mortgage, and the related Assignment of Leases, together with applicable state
law, contain customary and enforceable provisions (including, without
limitation, those relating to receivers) such as to render the rights and
remedies of the holder thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby, including realization by judicial or, if
applicable, non-judicial foreclosure.
(29) Access Routes. (a) Surveys, title insurance reports, the title
insurance policy or other relevant documents contained in the related Mortgage
File indicate that at the time of origination of such Mortgage Loan the related
Borrower had sufficient rights with respect to amenities, ingress and egress and
similar matters identified in the appraisal of the related Mortgaged Property
obtained in connection with the origination of such Mortgage Loan, as being
critical to the appraised value thereof, and (b) such Mortgaged Property was
receiving services from public or private water, sewer and other utilities that
were adequate as of the date that the Mortgage Loan was originated, and none of
such services is subject to revocation as a result of a foreclosure or change in
ownership of an adjacent property.
(30) Mortgage Loans Secured by Ground Lease but Not Fee Interest. With
respect to each Mortgage Loan that is secured in whole or in part by the
interest of the related Borrower as lessee under a ground lease of all or a
portion of the related Mortgaged Property (a "Ground Lease"), but the related
fee interest in the portion of such Mortgaged Property covered by such Ground
Lease (the "Fee Interest") is not subject or subordinate to the lien of the
related Mortgage, the Seller hereby represents and warrants that:
(a) as of the Closing Date, such Ground Lease is in full force and
effect, and such Ground Lease or a memorandum thereof has been duly
recorded in the applicable real estate records and (i) such Ground Lease
(or the related estoppel letter or lender protection agreement between the
Seller and related lessor) does not prohibit the interest of the related
lessee thereunder from being encumbered by the related Mortgage and does
not restrict the use of the related Mortgaged Property of such lessee in a
manner that would interfere with the related Borrower's ability to make
required principal and interest payments or to make use of such Mortgaged
Property for the intended purposes, or a separate written agreement
permitting such encumbrance has been obtained, and (ii) there have been no
material changes in the terms of such Ground Lease that would be
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binding on the mortgagee as successor to the lessee except as set forth in
written instruments which are part of the related Mortgage File;
(b) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances securing indebtedness which are superior to, or
of equal priority with, the related Mortgage, except for liens of current
real estate taxes and special assessments not yet delinquent or accruing
interest or penalties;
(c) the related lessee's interest in such Ground Lease may be
transferred to the Purchaser and its successors and assigns through a
foreclosure of the related Mortgage or conveyance in lieu of foreclosure
and, thereafter, may be transferred to another Person by the related
mortgagee and its successors and assigns, upon notice to, but without the
consent of, the related lessor (or, if any such consent is required, either
(i) it has been obtained prior to the Closing Date, or (ii) it may not be
unreasonably withheld), provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(d) the related lessor is required to give notice of any default under
such Ground Lease by the related lessee to the mortgagee either under the
terms of such Ground Lease or under the terms of a separate estoppel letter
or written agreement;
(e) the related mortgagee is entitled, under the terms of such Ground
Lease or a separate estoppel letter or written agreement, to receive notice
of any default by the related lessee under such Ground Lease, and after any
default notice, is entitled to not less than the time provided to the
related lessee under such Ground Lease to cure such default (which is, in
any event, a commercially reasonable time period), which is curable during
such period before the lessor may terminate the Ground Lease; all rights of
the related lessee under the Ground Lease may be exercised by or on behalf
of the mortgagee;
(f) the currently effective term of such Ground Lease (excluding any
extension or renewal which is not binding on the lessor thereunder) extends
not less than 20 years beyond the Stated Maturity Date of such Mortgage
Loan;
(g) such Ground Lease does not impose any restrictions on subletting
which the Seller considered to be commercially unreasonable at the time of
its origination or purchase of such Mortgage Loan or that a prudent
commercial mortgage lender would have considered unreasonable at such date;
(h) as of the Closing Date, (i) no event of default has occurred under
such Ground Lease and (ii) to Seller's knowledge, no event has occurred
which, with the passage of time, the giving of notice or both (other than
rental or other payments being due, but not yet delinquent), would result
in a default or an event of default under the terms of such Ground Lease;
(i) the related lessor has agreed in a writing included in the related
Mortgage File that such Ground Lease may not be amended, modified,
cancelled or
M-2-29
<PAGE> 519
terminated without the prior written consent of the Seller or the mortgagee
and that any such action without such consent is not binding upon the
mortgagee, its successors and assigns. Unless the mortgagee fails to cure a
default of the lessee under the Ground Lease following notice thereof from
the lessor as set forth in clause (e) of this Paragraph 30, the lessor is
required to enter into a new ground lease upon termination of such Ground
Lease for any reason (including, without limitation, rejection of such
Ground Lease in a bankruptcy proceeding);
(j) under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or taking) will be
applied either to (i) the repair or restoration of all or part of the
related Mortgaged Property covered by such Ground Lease, with the mortgagee
or a trustee appointed by it having the right to hold and disburse such
proceeds as such repair or restoration progresses (except where such
Mortgage Loan provides that the related Borrower or its agent may hold and
disburse such proceeds with respect to any loss or taking less than a
stipulated amount not greater than $50,000), or (ii) the payment of the
outstanding principal balance of and accrued interest on such Mortgage
Loan; and
(k) there are no existing mortgages on the Fee Interest which can be
foreclosed upon that are not subject to the Ground Lease, and the
provisions of the Ground Lease and/or other documents related thereto and
included as part of the related Mortgage File preclude the creation of any
future mortgage on the Fee Interest that can be foreclosed upon not subject
to the Ground Lease.
(l) except for fixed or determinable increases expressly set forth in
such Ground Lease, such Ground Lease does not permit any increase in the
amount of rent payable by the ground lessee during the term of the Mortgage
Loan.
(m) the terms of any related Ground Lease have not been waived,
modified, altered, satisfied, impaired, cancelled, subordinated, or
rescinded in any manner which materially interferes with the security
intended to be provided by the related Mortgage.
(31) Deed of Trust. With respect to any related Mortgage that is a deed
of trust or trust deed, a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and currently so serves or may be
substituted in accordance with applicable law. Except in connection with (a) a
trustee's sale after default by the related Borrower or (b) the release of the
related Mortgaged Property following the payment of the related Mortgage Loan in
full, no fees or expenses are payable by the Seller or the Purchaser to such
trustee.
(32) Cross-Security. The related Mortgaged Property is not collateral
or security for the payment or performance of (a) any other obligations owed to
the originator of such Mortgage Loan or the Seller other than another Mortgage
Loan being sold, transferred and assigned by the Seller under this Agreement, or
(b) to the Seller's knowledge, any other obligations owed to any Person other
than the Seller. The related Mortgage Note is not secured by any real property
other than a Mortgaged Property. Each related Mortgage does not provide
M-2-30
<PAGE> 520
or permit, without the prior written consent of the holder of the Mortgage Note,
each related Mortgaged Property to secure any other promissory note or
obligation, other than any other Mortgage Loan.
(33) Assignment of Leases. Except with respect to the related Mortgaged
Property or that portion of the related Mortgaged Property that is occupied by
the related Borrower, the related Mortgage Loan documents contain the provisions
of an Assignment of Leases or include a separate Assignment of Leases. Any
related Assignment of Leases incorporated within the related Mortgage or set
forth in a separate Mortgage Loan document creates on recordation (with the same
priority as the related Mortgage) a valid assignment of, or security interest
in, the right to receive all payments due under the related leases, if any.
(34) REMIC. (a) Such Mortgage Loan is principally secured by an
interest in real property and either (i) the fair market value of such real
property was at least equal to 80% of the adjusted issue price of such Mortgage
Loan on the date of origination of such Mortgage Loan or, if such Mortgage Loan
has been "significantly modified" within the meaning of Section 1001 of the
Code, on the date of such modification (unless such modification may be
disregarded under Treas. Reg. Sec. 1.860G-2(b)(3)), or (ii) substantially all of
the proceeds of such Mortgage Loan were used to acquire or improve or protect an
interest in real property that, at origination of such Mortgage Loan, was the
only security for such Mortgage Loan; (b) such Mortgage Loan contains no equity
participation by the Seller, and neither the related Mortgage Note nor the
related Mortgage provides for any contingent or additional interest in the form
of participation in the cash flow or proceeds realized on disposition of the
related Mortgaged Property; and (c) such Mortgage Loan is a "qualified mortgage"
as defined in, and for purposes of, Section 860G(3)(A) of the Code and provides
for the payments of interest at a fixed rate or at a rate described in Treas.
Reg. Sec. 1.860G-1(a)(3).
(35) Environmental Site Assessments. Environmental Site Assessments
(collectively, the "ESAs"), transaction screen assessments, studies or updates
prepared or obtained within [ ] months prior to the Closing Date in connection
with the origination of such Mortgage Loan identified no material adverse
environmental conditions or circumstances anticipated to require any material
expenditure with respect to any Mortgaged Property, except for: (a) those cases
where such conditions or circumstances were investigated further and, based upon
such additional investigation, a qualified environmental consultant recommended
no further investigation or remediation; (b) those cases in which an operations
and maintenance plan was recommended by the environmental consultant and such
plan was obtained or an escrow reserve established to cover the estimated costs
of obtaining such plan; (c) those conditions in which soil or groundwater
contamination was suspected or identified and either (i) such condition or
circumstance was remediated or abated prior to the date of closing of the
related Mortgage Loan, (ii) a "no further action" letter was obtained from the
applicable regulatory authority, or (iii) either an environmental insurance
policy was obtained, a letter of credit provided, an escrow reserve account
established, or an indemnity from the responsible party was obtained, to cover
the estimated costs of any required investigation, testing, monitoring or
remediation; or (d) those cases in which (i) a leaking underground storage tank
or groundwater contamination was identified to be located on or to have
originated from an offsite property, (ii) a responsible party has been
identified under applicable law, and (iii) either such condition is not known to
have affected the Mortgaged Property or the responsible party has either
received a "no
M-2-31
<PAGE> 521
further action" letter from the applicable regulatory agency, established a
remediation fund, or provided a guaranty or indemnity to the related Borrower.
(36) Notice of Environmental Problem. Other than with respect to any
conditions identified in the ESAs, transaction screen assessments, studies or
updates referred to in Paragraph 34 of this Exhibit C above, the Seller: (a) has
not received actual notice from any federal, state or other governmental
authority of (i) any failure of the related Mortgaged Property to comply with
any applicable Environmental Laws, or (ii) any known or threatened release of
Hazardous Materials on or from such Mortgaged Property in violation of any
applicable Environmental Laws; (b) has not received actual notice from the
related Borrower that (i) such Borrower has received any such notice from any
such governmental authority, (ii) such Mortgaged Property fails to comply with
any applicable Environmental Laws, or (iii) such Borrower has received actual
notice that there is any known or threatened release of Hazardous Materials on
or from such Mortgaged Property in violation of any applicable Environmental
Laws; or (c) has no actual knowledge that (i) the related Mortgaged Property
fails to materially comply with any applicable Environmental Laws or (ii) there
has been any known or threatened release of Hazardous Materials on or from such
Mortgaged Property where such release falls outside the exceptions (a) through
(d) of Paragraph 35 of this Exhibit C above.
(37) Recourse. The related Mortgage Loan documents contain standard
provisions providing for recourse against the related Borrower or a principal of
such Borrower for damages sustained in connection with the Borrower's fraud,
material misrepresentation or misappropriation of any tenant security deposits,
rent, insurance proceeds or condemnation proceeds. The related Mortgage Loan
documents contain provisions pursuant to which the related Borrower or a
principal of such Borrower has agreed to indemnify the mortgagee for damages
resulting from violations of any applicable Environmental Laws.
(38) Environmental Compliance. Each Mortgage Loan contains either a
representation, warranty or covenant that the related Borrower will not use,
cause or permit to exist on the related Mortgaged Property any Hazardous
Materials in violation of any applicable Environmental Laws or an indemnity with
respect to any such violation in favor of the Seller.
(39) Inspection. The Seller or originator has inspected the related
Mortgaged Property or caused such Mortgaged Property to be inspected within the
12 months preceding the Closing Date.
(40) Subordinate Debt. Except as has been disclosed in the Mortgage
Loan Schedule, the related Mortgage contains a provision for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan in the
event that the related Borrower encumbers the related Mortgaged Property without
the prior written consent of the mortgagee thereunder. At the time of
origination, the Mortgaged properties were not, and to the Seller's knowledge,
the Mortgaged Properties are not encumbered by any liens junior to the liens of
the related Mortgages. The Mortgage Loans do not permit the Borrowers to obtain
financing secured by the Mortgaged Properties that is subordinate to or of equal
priority with the lien of the Mortgage without lender's consent.
M-2-32
<PAGE> 522
(41) Common Ownership. To Seller's knowledge, no two properties
securing Mortgage Loans are directly or indirectly under common ownership except
to the extent that such common ownership and the ownership structure have been
specifically disclosed in Schedule C-3.
(42) Operating or Financial Statement. The related Mortgage Loan
documents require the related Borrower to furnish to the mortgagee at least
annually an operating statement (or a balance sheet and a statement of income
and expenses) with respect to the related Mortgaged Property or, in the case of
a borrower-occupied Mortgaged Property, a financial statement with respect to
the related Borrower.
(43) Litigation. To the best of the Seller's knowledge as of the date
of origination or purchase of such Mortgage Loan, and to the Seller's knowledge
thereafter, there is no pending action, suit, proceeding, arbitration or
governmental investigation with respect to the related Borrower or Mortgaged
Property which if determined adversely to the related Borrower would have a
material adverse effect on the value of the related Mortgaged Property or such
Borrower's ability to continue to perform its obligations under such Mortgage
Loan.
(44) ARD Loans. With respect to each Mortgage Loan that is an ARD Loan,
it commenced amortizing on its initial scheduled Due Date (or, in the case of
certain interest-only Mortgage Loans, as otherwise set forth in the related
Mortgage Notes) and provides that: (a) the spread used in calculating its
Mortgage Rate will increase by no more than five percent (5%) in connection with
the passage of its Anticipated Repayment Date; (b) its Anticipated Repayment
Date is of the term specified [in the Mortgage Loan Schedule] following the
origination of such Mortgage Loan; (c) no later than the related Anticipated
Repayment Date, if it has not previously done so, the related Borrower is
required to enter into a "lockbox agreement" whereby all revenue from the
related Mortgaged Property shall be deposited directly into a designated account
controlled by the Servicer; and (d) any cash flow from the related Mortgaged
Property that is applied to amortize such Mortgage Loan following its
Anticipated Repayment Date shall, to the extent such net cash flow is in excess
of the Monthly Payment payable therefrom, be net of budgeted and discretionary
(lender approved) capital expenditures.
(45) Due-on-Sale. The related Mortgage contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
mortgagee, the related Mortgaged Property subject to such Mortgage is directly
or indirectly transferred or sold; provided that certain of the Mortgages permit
(a) changes in ownership between existing partners and members, (b) transfers to
family members (or trusts for the benefit of family members), affiliated
companies and certain specified individuals and entities, (c) issuance by the
related borrower of new partnership or membership interests, (d) certain other
changes in ownership for estate planning purposes, or (e) certain other
transfers similar in nature to the foregoing that are consistent with customary
commercial lending practices.
(46) Loan Origination; Loan Underwriting. Each Mortgage Loan was
originated by the Seller, an affiliate of Seller or an originator approved by
the Seller, or was purchased by the related Seller, and each Mortgage Loan
substantially complied with all of the terms, conditions and requirements of the
Seller's underwriting standards in effect at the time of
M-2-33
<PAGE> 523
its origination or purchase of such Mortgage Loan, subject to such exceptions as
the Seller approved.
(47) Interest Accrual. Each related 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).
(48) Cut-off Date Balance. No Mortgage Loan, together with any other
Mortgage Loan made to the same Borrower or to an Affiliate of such Borrower,
represents more than 5% of the aggregate Cut-off Date Balance of the Mortgage
Pool.
(49) Due Date. The Due Date for each Mortgage Loan is scheduled to be
the first day of the month (or the following business day, if such first day is
not a business day).
(50) Appraisal. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of such Mortgage Loan. 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.
(51) No Release. No Mortgage Loan has been satisfied in full, and
except as expressly contemplated by the related loan agreement or other
documents contained in the related file, no material portion of the Mortgaged
Property has been released.
---------------------------
Each representation and warranty of the Seller set forth in this
Exhibit C, to the extent related to the enforceability of any instrument,
agreement or other document or as to offsets, defenses, counterclaims or rights
of rescission related to such enforceability, is qualified to the extent that
(a) enforcement may be limited (i) by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally as from time to time in effect, (ii) by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and (iii) by any applicable anti-deficiency law or statute; and (b)
such instrument, agreement or other document may contain certain provisions
which may be unenforceable in accordance with their terms, in whole or in part,
but the unenforceability of such provisions will not (subject to the
qualification in clause (a) above) (i) cause the related Mortgage Note or the
related Mortgage to be void in their entirety, (ii) invalidate the related
Borrower's obligation to pay interest at the stated interest rate of such
Mortgage Note on, and repay the principal of, the related Mortgage Loan in
accordance with the payment terms of such Mortgage Note, such Mortgage and other
written agreements delivered to the Seller in connection therewith, (iii)
invalidate the obligation of any related guarantor to pay guaranteed obligations
with respect to interest at the stated interest rate of such Note on, and the
principal of, such Mortgage Loan in accordance with the payment terms of such
guarantor's
M-2-34
<PAGE> 524
written guaranty, (iv) impair the mortgagee's right to accelerate and demand
payment of interest at the stated interest rate of such Mortgage Note on, and
principal of, such Mortgage Loan upon the occurrence of a legally enforceable
default, or (v) impair the mortgagee's right to realize against the related
Mortgaged Property by judicial or, if applicable, non-judicial foreclosure.
M-2-35
<PAGE> 525
SCHEDULE C-1
EXCEPTIONS TO THE MORTGAGE LOAN
REPRESENTATIONS AND WARRANTIES
SECTION 2. Rep #15: Defeasance
The Cut-Off Date Balance for this loan exceeds $5,000,000, and neither rating
agency confirmation or lender approval is required as a condition to defeasance.
However, a REMIC opinion is required as a condition to defeasance.
SECTION 3. Rep #17: Escrow Deposits/Rep #26: No Defaults
The attached Excel spreadsheet lists loans for which the loan documents provide
certain deadlines for repairs, which repairs have not been completed by the
associated deadline. The spreadsheet summarizes the status of each.
SECTION 4. Rep #30: Unsubordinated Ground Leases
This exception is to the ground lease rep (#29), section (i) as it relates to
the 1201 Sharp Street loan (# 9904010054). For this loan, Landlord is required
to provide 60 days notice of any amendment, modification, termination or
cancellation. Although mortgagee consent is not specifically required, in the
event of foreclosure mortgagee is not bound by any modification to which it had
not previously acknowledged. There is no provision for the creation of a new
lease; however, the landlord has agreed that: (A) the lender is not required to
cure any event of default not susceptible to lender cure and (B) if lender
assumes the tenant's interest under the lease, to waive any such incurable
defaults.
SECTION 5. Rep #39: Inspection
The following loans do not meet the 12-month prior to Closing Date standard set
forth in the Rep (assuming a 12/1/00 Closing Date). The most recent inspection
date is listed in parentheses next to each loan:
- Summit/Breckenridge Apts. (#03-0812016) - 9/99
- Little Creek Apts. (#03-0810417) - 11/99
M-2-36
<PAGE> 526
- Lafayette Business Park (#9910010082) - 11/99
M-2-37
<PAGE> 527
SCHEDULE C-2
RESERVE ACCOUNTS CONTROLLED BY SELLER
<PAGE> 528
SCHEDULE C-3
PROPERTIES UNDER COMMON OWNERSHIP
<PAGE> 529
EXHIBIT D-1
FORM OF CERTIFICATE OF A SECRETARY
OR ASSISTANT SECRETARY OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C3 CERTIFICATE OF
SECRETARY OF GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
I, , hereby certify that I am a duly elected and
acting Secretary of Greenwich Capital Financial Products, Inc. (the "Company"),
and certify further as follows:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware;
2. Attached hereto as Exhibit A is a true, correct and complete copy of
the organizational documents of the Company, as in full force and effect on the
date hereof;
3. Attached hereto as Exhibit B is a certificate of the Secretary of
State of the State of Delaware issued within ten days of the date hereof with
respect to the good standing of the Company;
4. Since the date of the good standing certificate referred to in
clause 3 above, the Company has not received any notification from the Secretary
of State of Delaware, or from any other source, that the Company is not in good
standing in Delaware.
5. Attached hereto as Exhibit C are the resolutions of the board of
directors of the Company authorizing the transactions contemplated by the
Mortgage Loan Purchase Agreement dated as of December 12, 2000 (the "Mortgage
Loan Purchase Agreement"), between Salomon Brothers Mortgage Securities VII,
Inc. ("SBMS VII") and the Company.
6. The Mortgage Loans do not constitute all or substantially all of the
assets of the Company.
7. To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Company are pending or contemplated.
8. Each person who, as an officer or representative of the Company,
signed (a) the Mortgage Loan Purchase Agreement, (b) the Indemnification
Agreement dated as of December , 2000 (the "Indemnification Agreement"), among
the Company, SBMS VII, Salomon Smith Barney Inc., Greenwich Capital Markets,
Inc., Chase Securities Inc., Deutsche Bank Securities Inc., J.P. Morgan
Securities Inc. and ABN AMRO Bank N.V.; and (c) any other document or
certificate delivered on or before the date hereof in connection with the
transactions
M-2-38
<PAGE> 530
contemplated by the foregoing documents, was, at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signature of
such person appearing on any such document is his or her genuine signature.
Capitalized terms used but not otherwise defined herein have the
respective meanings assigned to them in the Mortgage Loan Purchase Agreement
and, if not defined therein, then in the Indemnification Agreement.
M-2-39
<PAGE> 531
IN WITNESS WHEREOF, I have hereunto signed my name as of December ,
2000.
By:
------------------------------------
Name:
Title:
The undersigned, an officer of the Company, hereby certifies that is
the duly elected and qualified and acting Secretary of the Company and that the
signature appearing above is his/her genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of December ,
2000.
By:
------------------------------------
Name:
Title:
M-2-40
<PAGE> 532
EXHIBIT A
CERTIFICATE OF INCORPORATION AND BY-LAWS
M-2-41
<PAGE> 533
EXHIBIT B
CERTIFICATE OF GOOD STANDING
M-2-42
<PAGE> 534
EXHIBIT C
RESOLUTIONS
M-2-43
<PAGE> 535
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C3
CERTIFICATE OF GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
In connection with the execution and delivery by Greenwich Capital
Financial Products, Inc. ("GCFP") of, and the consummation of the various
transactions contemplated by, that certain Mortgage Loan Purchase Agreement
dated as of December , 2000 (the "Mortgage Loan Purchase Agreement"), between
Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII") and GCFP, and the
Indemnification Agreement dated as of December , 2000 (the "Indemnification
Agreement"), among GCFP, SBMS VII, Salomon Smith Barney Inc., Greenwich Capital
Markets, Inc., Chase Securities Inc., Deutsche Bank Securities Inc., J.P. Morgan
Securities Inc. and ABN AMRO Bank N.V. (together, the Mortgage Loan Purchase
Agreement and the Indemnification Agreement are referred to herein as the
"Agreements"), the undersigned hereby certifies that (i) the representations and
warranties of GCFP in the Agreements are true and correct in all material
respects at and as of the date hereof (or, in the case of the representations
and warranties set forth in Exhibit C of the Mortgage Loan Purchase Agreement,
as of such other date specifically provided in the particular representation and
warranty) with the same effect as if made on the date hereof (or, in the case of
the representations and warranties set forth in Exhibit C of the Mortgage Loan
Purchase Agreement, on such other date specifically provided in the particular
representation and warranty), and (ii) GCFP has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part
required under the Mortgage Loan Purchase Agreement to be performed or satisfied
at or prior to the date hereof. Capitalized terms used but not otherwise defined
herein have the respective meanings assigned to them in the Mortgage Loan
Purchase Agreement and, if not defined therein, then in the Indemnification
Agreement.
Certified this day of December, 2000.
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
--------------------------------
Name:
Title:
M-2-44
<PAGE> 536
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL
TO THE SELLER
December 19, 2000
Addressees listed on Exhibit A hereto
Re: Salomon Brothers Mortgage Securities VII, Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
This opinion is being provided to you by in-house counsel to Greenwich
Capital Financial Products, Inc. (the "Company") pursuant to Section 7(h) the
Mortgage Loan Purchase Agreement, dated as of December 12, 2000 (the "Mortgage
Loan Purchase Agreement"), between Salomon Brothers Mortgage Securities VII,
Inc. ("SBMS VII") and the Company, relating to the sale by the Company of
certain mortgage loans (the "Mortgage Loans"). I have also acted as counsel to
the Company in connection with its entering into the Indemnification Agreement
dated as of December 12, 2000 (the "Indemnification Agreement"), among the
Company, SBMS VII, Salomon Smith Barney Inc., Chase Securities Inc., Deutsche
Bank Securities Inc., J.P. Morgan Securities Inc. and ABN AMRO Bank N.V. The
Mortgage Loan Purchase Agreement and the Indemnification Agreement are
collectively referred to herein as the "Agreements". Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Mortgage Loan
Purchase Agreement.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such corporate records of the Company, certificates of
public officials, officers of the Company and other persons and other documents,
agreements and instruments and have made such other investigations as I have
deemed necessary or appropriate for purposes of this opinion.
Based upon the foregoing, I am of the opinion that:
a. The Company is a validly existing Delaware corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority under such laws to enter into and perform its obligations
under the Agreements.
b. Each Agreement has been duly authorized, executed and delivered by the
Company.
c. No consent, approval, authorization or order of any court, governmental
agency or body is required in connection with the execution and
delivery by the Company of the Agreements, except for those consents,
approvals, authorizations or orders that previously have been obtained.
d. The transfer of the Mortgage Loans as provided in the Agreements and
the fulfillment of the other terms of the Agreements will not conflict
with or result in a violation of the Certificate of Incorporation or
the By-laws of the Company or any agreement, instrument, order, writ,
judgment or decree known to me to which the Company is a party or is
subject.
M-2-45
<PAGE> 537
e. To the best of my knowledge, there are no actions or proceedings
against the Company, pending (with regard to which the Company has
received service of process) or overtly threatened in writing before
any court, governmental agency or arbitrator which affect the
enforceability of the Agreements, or which would draw into question the
validity of the Agreements or any action taken or to be taken in
connection with the Company's obligations contemplated therein, or
which would materially impair the Company's ability to perform under
the terms of the Agreements.
The opinions expressed herein are limited to the laws of ______________
and the federal law of the United States.
This opinion is given to you for your sole benefit, and no other person
or entity is entitled to rely hereon without my express written consent.
Very truly yours,
Paul Stevelman, Esq.
M-2-46
<PAGE> 538
EXHIBIT D-3B
FORM OF OPINION OF SIDLEY & AUSTIN,
SPECIAL COUNSEL TO THE SELLER
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
<TABLE>
<S> <C> <C>
CHICAGO 875 THIRD AVENUE HONG KONG
NEW YORK, NEW YORK 10022
DALLAS TELEPHONE 212 906 2000 LONDON
FACSIMILE 212 906 2021
LOS ANGELES SHANGHAI
WASHINGTON, D.C. FOUNDED 1866 SINGAPORE
TOKYO
</TABLE>
December 19, 2000
Salomon Brothers Mortgage
Securities VII, Inc.
388 Greenwich Street
New York, New York 10013
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Deutsche Bank Securities Inc.
31 West 52nd Street, 3rd Floor
New York, New York 10019
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
ABN AMRO Bank N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services
55 Water Street, 41st Floor
New York, New York 10041
Greenwich Capital Financial Products, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Wells Fargo Bank Minnesota, N.A.
45 Broadway, 12th Floor
New York, New York 10006
Re: Salomon Brothers Mortgage Securities VII, Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
M-2-47
<PAGE> 539
We have acted as special counsel to Greenwich Capital Financial
Products, Inc. ("GCFP") in connection with certain matters relating to the
transactions contemplated by that certain Mortgage Loan Purchase Agreement,
dated as of December 12, 2000 (the "Mortgage Loan Purchase Agreement"), between
GCFP, as seller, and Salomon Brothers Mortgage Securities VII, Inc. ("SBMS
VII"), as purchaser.
This opinion letter is being provided to you pursuant to Section 7(h)
of the Mortgage Loan Purchase Agreement. Capitalized terms not defined herein
have the respective meanings set forth in, or otherwise assigned to them
pursuant to, the Mortgage Loan Purchase Agreement.
For the purposes of this opinion letter, we have reviewed the Mortgage
Loan Purchase Agreement. In addition, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such other documents
and records as we have deemed relevant or necessary as the basis for the
opinions contained in this letter; we have obtained such certificates from and
made such inquiries of officers and representatives of the parties to the
Mortgage Loan Purchase Agreement and public officials as we have deemed relevant
or necessary as the basis for such opinions; and we have relied upon, and
assumed the accuracy of, such other documents and records, such certificates and
the statements made in response to such inquiries, with respect to the factual
matters upon which such opinions are based. We have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters material to this opinion contained in the Mortgage Loan Purchase
Agreement, (ii) the legal capacity of natural persons, (iii) the genuineness of
all signatures, (iv) the authenticity of all documents submitted to us as
originals, (v) the conformity to authentic originals of all documents submitted
to us as certified, conformed or photostatic copies, (vi) the due organization
of the parties to the Mortgage Loan Purchase Agreement and the valid existence
of each such entity in good standing under the laws of its jurisdiction of
organization, (vii) except as expressly addressed in paragraph 2 below, the
power and authority of the parties to the Mortgage Loan Purchase Agreement to
enter into, perform under and consummate the transactions contemplated by the
Mortgage Loan Purchase Agreement, without any resulting conflict with or
violation of the organizational documents of any such party or with or of any
law, rule, regulation, order or decree applicable to any such party or its
assets, and without any resulting default under or breach of any other agreement
or instrument by which any such party is bound or which is applicable to it or
its assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Mortgage Loan Purchase Agreement by the parties
thereto, (ix) except as expressly addressed in paragraph 1 below, the
constitution of the Mortgage Loan Purchase Agreement as the legal, valid and
binding obligation of each party thereto, enforceable against such party in
accordance with its terms, and (x) the absence of any other agreement that
supplements or otherwise modifies the intentions and agreements of the parties
to the Mortgage Loan Purchase Agreement, as expressed therein.
In delivering this opinion letter, we do not express any opinions
concerning the laws of any jurisdiction other than the laws of the State of New
York and, where expressly referred to below, the federal laws of the United
States of America (without regard to conflicts of law principles). In addition,
we do not express any opinion with respect to the tax, securities or "doing
business" laws of any particular jurisdiction or with respect to any matter not
expressly addressed below.
M-2-48
<PAGE> 540
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Mortgage Loan Purchase Agreement constitutes a valid, legal and
binding agreement of GCFP, enforceable against GCFP in accordance with its
terms.
2. The execution, delivery and performance of the Mortgage Loan
Purchase Agreement by GCFP will not conflict with or result in a violation of
any federal or State of New York statute or regulation generally applicable to
domestic corporations in connection with transactions of the type contemplated
by the Mortgage Loan Purchase Agreement.
M-2-49
<PAGE> 541
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is being delivered solely for your benefit in connection with the transactions
contemplated by the Mortgage Loan Purchase Agreement. Accordingly, it may not be
quoted, filed with any governmental authority or other regulatory agency or
otherwise circulated or utilized for any other purpose without our prior written
consent.
Very truly yours,
M-2-50
<PAGE> 542
EXHIBIT D-3C
FORM OF LETTER RELATING
TO DISCLOSURE FROM SIDLEY & AUSTIN,
SPECIAL COUNSEL TO THE SELLER
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
CHICAGO 875 THIRD AVENUE HONG KONG
NEW YORK, NEW YORK 10022
DALLAS TELEPHONE 212 906 2000 LONDON
FACSIMILE 212 906 2021
LOS ANGELES SHANGHAI
SEATTLE FOUNDED 1866 SINGAPORE
WASHINGTON, D.C. TOKYO
December 19, 2000
Salomon Brothers Mortgage Deutsche Bank Securities Inc.
Securities VII, Inc. 31 West 52nd Street, 3rd Floor
388 Greenwich Street New York, New York 10019
New York, New York 10013
Salomon Smith Barney Inc. J.P. Morgan Securities Inc.
388 Greenwich Street 60 Wall Street
New York, New York 10013 New York, New York 10260-0060
Greenwich Capital Markets, Inc. ABN AMRO Bank N.V.
600 Steamboat Road 135 South LaSalle Street
Greenwich, Connecticut 06830 Chicago, Illinois 60603
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
We have acted as special counsel to Salomon Brothers Mortgage
Securities VII, Inc. (the "Depositor"), Salomon Brothers Realty Corp. ("SBRC"),
Greenwich Capital Financial Products, Inc. ("GCFP") and Artesia Mortgage Capital
Corporation ("AMCC") in connection with certain matters relating to the
following transactions (collectively, the "Transactions"):
(i) the sale by SBRC, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "SBRC Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of December 12, 2000 (the "SBRC Mortgage Loan Purchase Agreement"),
between SBRC and the Depositor;
(ii) the sale by GCFP, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "GCFP Mortgage
Loans"), pursuant to
M-2-51
<PAGE> 543
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 2
that certain Mortgage Loan Purchase Agreement, dated as of December 12,
2000 (the "GCFP Mortgage Loan Purchase Agreement"), between GCFP and the
Depositor;
(iii) the sale by AMCC, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "AMCC Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of December 12, 2000 (the "AMCC Mortgage Loan Purchase Agreement"),
between AMCC and the Depositor;
(iv) the sale by LaSalle Bank National Association ("LBNA"), and
the purchase by the Depositor, of certain multifamily and commercial
mortgage loans (the "LBNA Mortgage Loans"), pursuant to that certain
Mortgage Loan Purchase Agreement, dated as of December 12, 2000 (the "LBNA
Mortgage Loan Purchase Agreement"), between LBNA and the Depositor;
(v) the creation of a common law trust (the "Trust") and the
issuance of an aggregate $914,661,061 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2000-C3 (the
"Certificates"), consisting of 18 classes designated Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class X, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class R and Class Y,
pursuant to that certain Pooling and Servicing Agreement, dated as of
December 1, 2000 (the "Pooling and Servicing Agreement"), among the
Depositor as depositor, Midland Loan Services, Inc., as master servicer,
Lennar Partners, Inc., as special servicer, Wells Fargo Bank Minnesota,
N.A., as trustee (the "Trustee"), and LaSalle Bank National Association, as
certificate administrator and tax administrator;
(vi) the conveyance of the SBRC Mortgage Loans, the GCFP Mortgage
Loans, the AMCC Mortgage Loans and the LBNA Mortgage Loans (collectively,
the "Mortgage Loans") by the Depositor to the Trust, pursuant to the
Pooling and Servicing Agreement, in exchange for the issuance of the
Certificates; and
(vii) the sale by the Depositor, and the purchase by Salomon Smith
Barney Inc. ("SSBI"), Greenwich Capital Markets, Inc. ("Greenwich
Capital"), Chase Securities Inc. ("Chase"), Deutsche Bank Securities Inc.
("Deutsche Bank"), J.P. Morgan Securities Inc. ("J.P. Morgan") and ABN AMRO
Bank N.V. ("ABN AMRO"; and, together with SSBI, Greenwich Capital, Chase,
Deutsche Bank and J.P. Morgan in such capacity, the "Underwriters"), of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates (collectively, the "Publicly Offered Certificates"), pursuant
to that
M-2-52
<PAGE> 544
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 3
certain Underwriting Agreement, dated as of December 12, 2000 (the
"Underwriting Agreement"), between the Depositor and the Underwriters.
The SBRC Mortgage Loan Purchase Agreement, the GCFP Mortgage Loan
Purchase Agreement, the AMCC Mortgage Loan Purchase Agreement and the LBNA
Mortgage Loan Purchase Agreement are collectively referred to herein as the
"Mortgage Loan Purchase Agreements". The Mortgage Loan Purchase Agreements, the
Pooling and Servicing Agreement, the Underwriting Agreement and the Certificate
Purchase Agreement are collectively referred to herein as the "Agreements".
Capitalized terms not defined herein have the respective meanings set forth in
the Pooling and Servicing Agreement and, to the extent not defined therein, in
the other Agreements.
For the purposes of this letter, we have reviewed: the Agreements; the
Depositor's registration statement on Form S-3 (No. 333-40426) (the
"Registration Statement") filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"); the
Prospectus, dated December 12, 2000, relating to publicly offered mortgage
pass-through certificates evidencing interests in trust funds established by the
Depositor (the "Basic Prospectus"); and the Prospectus Supplement, dated
December 12, 2000, specifically relating to the Trust and the Publicly Offered
Certificates (including all exhibits and annexes thereto, the "Prospectus
Supplement"; and, together with the Basic Prospectus, the "Prospectus"). In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the statements made in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the respective parties to the Agreements and
public officials as we have deemed relevant or necessary as the basis for the
statements made in this letter; and we have relied upon, and assumed the
accuracy of, such other documents and records, such certificates and the
statements made in response to such inquiries, with respect to the factual
matters upon which the statements made in this letter are based. We have also
assumed (i) the truthfulness and accuracy of each of the representations and
warranties as to factual matters contained in the Agreements, (ii) the legal
capacity of natural persons, (iii) the genuineness of all signatures, (iv) the
authenticity of all documents submitted to us as originals, (v) the conformity
to authentic originals of all documents submitted to us as certified, conformed
or photostatic copies, (vi) the due authorization by all necessary action, and
the due execution and delivery, of the Agreements by the parties thereto, (vii)
the constitution of each of the Agreements as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, (viii) compliance with the Agreements by the
M-2-53
<PAGE> 545
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 4
parties thereto, (ix) the conformity, to the requirements of the Pooling and
Servicing Agreement and the respective Mortgage Loan Purchase Agreements, of the
Mortgage Notes, the Mortgages and the other documents relating to the Mortgage
Loans delivered to the Trustee by, on behalf of or at the direction of the
Depositor, SBRC, GCFP, AMCC and LBNA, (x) the conformity of the text of each
document filed with the Commission through the Commission's Electronic Data
Gathering, Analysis and Retrieval System to the printed documents reviewed by
us, and (xi) the absence of any agreement that supplements or otherwise modifies
the intentions and agreements of the parties to the Agreements, as expressed
therein. In rendering this letter, we do not make any statement concerning the
laws of any jurisdiction other than the federal laws of the United States of
America.
In the course of acting as special counsel to the Depositor, SBRC, GCFP
and AMCC in connection with the preparation of the Prospectus, we have generally
reviewed and discussed with certain representatives of the Depositor, SBRC,
GCFP, AMCC, LBNA, SSBI, Greenwich Capital and the other parties to the
Agreements and their respective counsel (in addition to us) the information set
forth in the Prospectus, other than any documents or information incorporated by
reference in either the Prospectus or the Memorandum. In addition, we have
reviewed loan summaries delivered to us by SBRC, GCFP and AMCC with respect to
the SBRC Mortgage Loans, the GCFP Mortgage Loans and the AMCC Mortgage Loans,
respectively; and we have undertaken a limited review of copies of certain
environmental insurance policies and other selected Mortgage Loan documents with
respect to certain SBRC Mortgage Loans, GCFP Mortgage Loans and AMCC Mortgage
Loans. While we have not otherwise made any independent check or verification
of, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, on the basis of the foregoing, nothing has come to our attention
that causes us to believe that the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the Prospectus
Supplement or as of the date hereof, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that we make no statement as to: (i) any
accounting, financial or statistical data or other information of that nature
contained in or omitted from the Registration Statement or the Prospectus; (ii)
any documents or information incorporated by reference in the Registration
Statement or the Prospectus; (iii) any information on the diskette that
accompanies the Prospectus; or (iv) any information with respect to the
characteristics of the LBNA Mortgage
M-2-54
<PAGE> 546
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 5
Loans, the related Borrowers and/or the related Mortgaged Properties contained
in or omitted from the Prospectus. In that connection, we advise you that we
have, as to materiality, relied to the extent we deemed appropriate upon the
judgment of officers and representatives of the Depositor, SBRC, GCFP and AMCC.
In addition, in that connection, we call to your attention that, with your
knowledge and consent, except as stated above, we have not examined or otherwise
reviewed any of the Mortgage Files, Servicing Files or any particular documents
contained in such files or any other documents with respect to the Mortgage
Loans.
When used in this letter, the term "attention" or any other word or
phrase of similar import means the conscious awareness of facts or other
information of solely those attorneys who are currently practicing law with
Sidley & Austin and have been actively involved in representing the Depositor,
SBRC, GCFP and AMCC in connection with any matters relating to the Transactions.
With your permission, no attempt was made by such attorneys to gather
information from any other attorneys currently practicing law with Sidley &
Austin that may have represented the Depositor, SBRC, GCFP, AMCC or any of their
respective affiliates in other matters or to review any files associated with
those matters.
This letter is being delivered to you as of the date hereof, and we
assume no obligation to advise you of any changes of law or fact that may occur
after the date hereof, notwithstanding that such changes may affect the
statements made herein. This letter is solely for your benefit in connection
with the Transactions and may not be relied on in any manner for any other
purpose or by any other person or transmitted to any other person without our
prior consent.
Very truly yours,
M-2-55
<PAGE> 547
EXHIBIT E
ORGANIZATIONAL DOCUMENTS OF THE SELLER
M-2-56
<PAGE> 548
EXHIBIT M-3
FORM OF AMCC MORTGAGE LOAN PURCHASE
AGREEMENT
<PAGE> 549
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 12, 2000, between Artesia Mortgage Capital Corporation,
a Delaware corporation ("AMCC"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "Seller"), and Salomon Brothers
Mortgage Securities VII, Inc., a Delaware corporation ("SBMS VII"), as purchaser
(in such capacity, together with its successors and permitted assigns hereunder,
the "Purchaser").
RECITALS
AMCC desires to sell, assign, transfer and otherwise convey to SBMS
VII, without recourse, and SBMS VII desires to purchase, subject to the terms
and conditions set forth herein, the multifamily and commercial mortgage loans
(the "Mortgage Loans") identified on the schedule annexed hereto as Exhibit A
(the "Mortgage Loan Schedule"), as such schedule may be amended from time to
time pursuant to the terms hereof.
A real estate mortgage investment conduit ("REMIC") election has been
made with respect to each of two Mortgage Loans (the resulting REMICs being
herein referred to as "Loan REMICs"), for federal income tax purposes. AMCC also
desires to sell, assign, transfer and otherwise convey to SBMS VII, without
recourse, and SBMS VII desires to purchase, subject to the terms and conditions
set forth herein, the regular interests (the "Loan REMIC Regular Interests") and
residual interests (the "Loan REMIC Residual Interests"; and, collectively with
the Loan REMIC Regular Interests, the "Loan REMIC Interests") in the Loan
REMICs.
SBMS VII intends to create a trust (the "Trust"), the primary assets of
which will be the Mortgage Loans, certain other multifamily and commercial
mortgage loans (the "Other Loans"; and, together with the Mortgage Loans, the
"Securitized Loans") and the Loan REMIC Interests. Beneficial ownership of the
assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. and
Moody's Investors Service, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be subject to
registration under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust will be created and the Certificates will be issued pursuant to
a pooling and servicing agreement to be dated as of December 1, 2000 (the
"Pooling and Servicing Agreement"), among SBMS VII, as depositor, Midland Loan
Services, Inc., as master servicer (the "Master Servicer"), Lennar Partners,
Inc., as special servicer ( "Special Servicer"), and Wells Fargo Bank Minnesota,
N.A., as trustee (the "Trustee"). Capitalized terms used but not otherwise
defined herein have the respective meanings assigned to them in the Pooling and
Servicing Agreement as in full force and effect on the Closing Date (as defined
in Section 1 hereof). It is anticipated that SBMS VII will transfer the Mortgage
Loans and the Loan REMIC Interests to the Trust contemporaneously with its
purchase of the Mortgage Loans and the Loan REMIC Interests hereunder.
M-3-2
<PAGE> 550
The Depositor will acquire some of the Other Loans from Salomon
Brothers Realty Corp. ("SBRC"), some of the Other Loans from Greenwich Capital
Financial Products, Inc. ("GCFP"), and the remaining Other Loans from LaSalle
Bank National Association ("LaSalle"; and, collectively with SBRC and GCFP, the
"Other Loan Sellers").
SBMS VII intends to sell the Registered Certificates to Salomon Smith
Barney Inc. ("SSBI"), Greenwich Capital Markets, Inc. ("Greenwich Capital"),
Chase Securities Inc. ("Chase"), Deutsche Bank Securities Inc. ("Deutsche
Bank"), J.P. Morgan Securities Inc. ("J.P. Morgan") and ABN AMRO Bank N.V. ("ABN
AMRO"), pursuant to an underwriting agreement, dated as of the date hereof (the
"Underwriting Agreement"), among SBMS VII, SSBI, Greenwich Capital, Chase,
Deutsche Bank, J.P. Morgan and ABN AMRO; and SBMS VII intends to sell the
remaining Certificates (the "Non-Registered Certificates") to SSBI and Greenwich
Capital, pursuant to a certificate purchase agreement, dated as of the date
hereof (the "Certificate Purchase Agreement"), among SBMS VII, SSBI and
Greenwich Capital. The Registered Certificates are more fully described in the
prospectus dated December 12, 2000 (the "Basic Prospectus"); and the supplement
to the Basic Prospectus dated December 12, 2000 (the "Prospectus Supplement";
and, together with the Basic Prospectus, the "Prospectus"), as each may be
amended or supplemented any time hereafter. Certain classes of the
Non-Registered Certificates are more fully described in the private placement
memorandum dated December 12, 2000 (the "Memorandum"), as it may be amended or
supplemented at any time hereafter.
AMCC will indemnify SBMS VII, SSBI, Greenwich Capital, Chase, Deutsche
Bank, J.P. Morgan, ABN AMRO and certain related parties with respect to the
disclosure regarding the Mortgage Loans and AMCC contained in the Prospectus,
the Memorandum and certain other disclosure documents and offering materials
relating to the Certificates, pursuant to an indemnification agreement dated as
of the date hereof (the "Indemnification Agreement"), among AMCC, SBMS VII,
SSBI, Greenwich Capital, Chase, Deutsche Bank, J.P. Morgan and ABN AMRO.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey
(without recourse) to the Purchaser, and the Purchaser agrees to purchase,
subject to the terms and conditions set forth herein, the Mortgage Loans and the
Loan REMIC Interests. The purchase and sale of the Mortgage Loans and the Loan
REMIC Interests shall take place on December 19, 2000 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). As of
the close of business on their respective due dates in December 2000
(individually, on a loan-by-loan basis, and collectively, the "Cut-off Date"),
the Mortgage Loans will have an aggregate principal balance, after application
of all payments of principal due on the Mortgage Loans on or before such date,
whether or not received, of $114,046,135, subject to a variance of plus or minus
5%. The purchase price for the Mortgage Loans and the Loan REMIC Interests shall
be $___________, together with accrued interest on the Mortgage Loans at their
respective Net Mortgage Rates from and including the Cut-off Date to but not
including the Closing Date, and
M-3-3
<PAGE> 551
shall be paid to the Seller by wire transfer in immediately available funds on
the Closing Date (or by such other method as shall be mutually acceptable to the
parties hereto).
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to its receipt and
acceptance of the purchase price referred to in Section 1 hereof, the Seller
does hereby transfer, assign, set over and otherwise convey to the Purchaser,
without recourse but subject to the terms of this Agreement, all the right,
title and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, including, without limitation, all of
the Seller's right, title and interest in and to the proceeds of any related
title, hazard or other insurance policies received by the Seller on or with
respect to the Mortgage Loans after the Cut-off Date and any Additional
Collateral, and in and to the Loan REMIC Interests. The Seller shall, within 15
days of the discovery of an error on the Mortgage Loan Schedule, amend the
Mortgage Loan Schedule and deliver to the Purchaser or its designee an amended
Mortgage Loan Schedule. The Mortgage Loan Schedule, as it may be amended, shall
conform to the requirements set forth in this Agreement.
(b) The Purchaser shall be entitled to receive all scheduled payments
of principal and interest due on the Mortgage Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
deliver or cause to be delivered to the Purchaser or its designee the Mortgage
File and any Additional Collateral (other than reserve funds and escrow
payments) with respect to each Mortgage Loan. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipient of the items
described in the preceding sentence shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original or
certified recorded document or original policy of title insurance which is to be
delivered as part of the related Mortgage File, solely because the Seller is
delayed in making such delivery by reason of the fact that such original or
certified recorded document has not been returned by the appropriate recording
office or such original policy of title insurance has not yet been issued, then
the Seller shall notify the Purchaser, in writing, of such delay (unless the
Trustee shall have provided the Purchaser with an exception report indicating
such delay), and the Seller shall deliver such documents to the Purchaser or its
designee promptly upon the Seller's receipt thereof.
In addition, unless previously delivered by the Seller to the Purchaser
or its designee, the Seller shall, at its expense, deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser or its designee,
the following items, within 10 days following the Closing Date (or, if any of
the following items are not in the actual possession of the Seller, within 30
days following the Closing Date): (i) copies of the Mortgage Files for the
respective Mortgage Loans; (ii) originals or copies of all financial statements,
appraisals, environmental/engineering reports, leases, rent rolls and tenant
estoppels in the possession or under the control of the Seller that relate to
the Mortgage Loans and, to the extent they are not
M-3-4
<PAGE> 552
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are necessary for the ongoing servicing and
administration of the Mortgage Loans; and (iii) all unapplied reserve funds and
escrow payments in the possession or under the control of the Seller that relate
to the Mortgage Loans, other than those that are to be retained by a
sub-servicer or primary servicer that will continue to act on behalf of the
Purchaser. Unless the Purchaser notifies the Seller in writing to the contrary,
the designated recipient of the items described in clauses (i) - (iii) of the
preceding sentence shall be the Master Servicer.
The Seller shall also provide to the Purchaser or its designee the
initial data on the Mortgage Loans (as of the Closing Date or the most recent
earlier date for which such date is available) contemplated by the Loan Set-up
File, the Loan Periodic Update File, the Operating Statement Analysis Report and
the Property File.
(d) The Seller shall be responsible for all reasonable costs and
expenses associated with recording and/or filing any and all assignments and
other instruments of transfer to the Purchaser with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement; provided that the Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer. If any such assignment or other instrument of transfer
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, and the Seller receives notice to such effect from the Purchaser
or its designee, then the Seller shall prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be. The Seller shall
provide the Purchaser or its designee with a power of attorney to enable it or
them to record any loan documents that the Purchaser has been unable to record.
(e) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller shall report its transfer of the
Mortgage Loans and the Loan REMIC Interests to the Purchaser, as provided
herein, as a sale of those assets to the Purchaser in exchange for the
consideration specified in Section 1 hereof. In connection with the foregoing,
the Seller shall cause all of its records to reflect such transfer as a sale (as
opposed to a secured loan) and to reflect that the Mortgage Loans are no longer
property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans and the Loan
REMIC Interests to the Purchaser, as provided herein, the Seller shall not take
any action inconsistent with the Purchaser's ownership of the Mortgage Loans and
the Loan REMIC Interests. Except for actions that are the express responsibility
of another party hereunder or under the Pooling and Servicing Agreement, and
further except for actions that the Seller is expressly permitted to complete
subsequent to the Closing Date, the Seller shall, on or before the Closing Date,
take all actions required under applicable law to effectuate the transfer of the
Mortgage Loans and the Loan REMIC Interests by the Seller to the Purchaser.
M-3-5
<PAGE> 553
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans and the Loan REMICs, that may be undertaken by or on behalf of
the Purchaser. The fact that the Purchaser has conducted or has failed to
conduct any partial or complete examination of any of the Mortgage Files for,
and/or any of such other documents and records relating to, the Mortgage Loans
and the Loan REMICs, shall not affect the Purchaser's right to pursue any remedy
available in equity or at law for a breach of the Seller's representations and
warranties made pursuant to Section 4, except as such remedies are otherwise
limited by the terms of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser, each of the representations and warranties set forth
in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty)
to and for the benefit of the Purchaser, each of the representations and
warranties set forth in Exhibit C.
(c) It is understood and agreed that the representations and warranties
set forth in this Section 4 shall survive delivery of the respective Mortgage
Files to the Purchaser or its designee and shall inure to the benefit of the
Purchaser for so long as any of the Mortgage Loans and/or the Loan REMIC
Interests remains outstanding, notwithstanding any restrictive or qualified
endorsement or assignment.
SECTION 4A. Representations, Warranties and Covenants of Purchaser.
The Purchaser hereby represents and warrants, as of the Closing Date, that:
(a) The Purchaser is a duly formed corporation, validly existing and in
good standing under the laws of the State of Delaware.
(d) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
(e) This Agreement, assuming due authorization, execution and delivery
by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(f) The execution and delivery of this Agreement by the Purchaser, and
the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice
M-3-6
<PAGE> 554
or lapse of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or instrument to which it is a party or which
is applicable to it or any of its assets.
(g) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(h) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the Purchaser
from entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, is likely to materially and adversely affect either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Seller.
(i) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within 90 days of the earlier of discovery or receipt of notice by
the Seller that there has been a Material Breach or a Material Document Defect,
the Seller shall, subject to subsection (b) below, (i) cure such Material Breach
or Material Document Defect, as the case may be, in all material respects or
(ii) repurchase each affected Mortgage Loan (each, a "Defective Mortgage Loan")
at the related Purchase Price provided for in the Pooling and Servicing
Agreement, which Purchase Price shall be deposited or delivered in accordance
with the directions of the Purchaser; provided that if (i) any such Material
Breach or Material Document Defect, as the case may be, does not affect whether
the Defective Mortgage Loan was, is or will continue to be, a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (a "Qualified
Mortgage"), (ii) such Material Breach or Material Document Defect, as the case
may be, is capable of being cured but not within such 90-day period, (iii) the
Seller has commenced and is diligently proceeding with the cure of such Material
Breach or Material Document Defect, as the case may be, within such 90-day
period, and (iv) the Seller shall have delivered to the Purchaser a
certification executed on behalf of the Seller by an officer thereof setting
forth the reason that such Material Breach or Material Document Defect, as the
case may be, is not capable of being cured within the initial 90-day period and
what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Material Breach or Material
Document Defect, as the case may be, will be cured within an additional period
not to exceed 90 more days, then the Seller shall have an additional 90 days to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan.
Any such repurchase of a Defective Mortgage Loan shall be on a whole loan,
servicing released basis
M-3-7
<PAGE> 555
(subject to any right of a Designated Sub-Servicer to continue to sub-service
such Defective Mortgage Loan as set forth in the related Designated Sub-Servicer
Agreement). The Seller shall have no obligation to monitor the Mortgage Loans
regarding the existence of a Material Breach or a Material Document Defect, but
if the Seller has actual knowledge of a Material Breach or Material Document
Defect with respect to a Mortgage Loan, it will notify the Purchaser.
If 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 Borrower and record, such documentation as may be
necessary to terminate the cross-collateralization between the Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the one hand, and
the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that no such termination shall be effected unless and until the
Purchaser and its servicing agent has received from the Seller: (i) 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 either Grantor Trust Pool and (ii) written confirmation from
each Rating Agency that such termination will not cause an Adverse Rating Event
to occur with respect to any Class of Rated Certificates; and provided, further,
that the Seller may, at its option, purchase the entire subject
Cross-Collateralized Group in lieu of terminating the cross-collateralization.
All costs and expenses incurred by the Purchaser 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 is a Material Breach or Material Document Defect, as the case may be, and
(ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
If any Defective Mortgage Loan is to be repurchased as contemplated by
this Section 5(a), the Seller shall amend the Mortgage Loan Schedule to reflect
the removal of the Defective Mortgage Loan and shall forward such amended
schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller set
forth in this Section 5(a) to cure a Material Breach or a Material Document
Defect or repurchase the related Defective Mortgage Loan(s), constitute the sole
remedies available to the Purchaser with respect to a Breach or Document Defect.
(b) It shall be a condition to any repurchase of a Defective Mortgage
Loan by the Seller pursuant to Section 5(a) that (i) the Purchaser shall have
executed and delivered such instruments of transfer or assignment then presented
to it by the Seller, in each case without recourse, as shall be necessary to
vest in the Seller the legal and beneficial ownership of such Defective Mortgage
Loan (including any property acquired in respect thereof or proceeds of any
insurance policy with respect thereto), to the extent that such ownership
interest was transferred to the Purchaser hereunder and (ii) the Purchaser or
its assignee shall release or cause the release to the Seller or its designee of
the Mortgage File, any Additional Collateral, all insurance policies
M-3-8
<PAGE> 556
and proceeds thereunder, the Servicing File and any Escrow Payments and/or
Reserve Funds held by or on behalf of the Purchaser (or its assignee) with
respect to such Mortgage Loan.
SECTION 6. Closing.
(a) 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.
(b) The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller made
pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date or such other date as specified in
Exhibit C;
(b) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser and, in the case of the Pooling and Servicing Agreement (insofar
as it affects the obligations of the Seller hereunder), to the Seller,
shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Purchaser or
its designee, all documents and funds required to be so delivered pursuant
to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with by the Seller and the Purchaser, including, without
limitation, in the case of the Purchaser, payment of the purchase price, on
or before the Closing Date shall have been complied with, and the Seller
shall have the ability to comply with all terms and conditions and perform
all duties and obligations required to be complied with or performed after
the Closing Date;
(e) The Seller shall have paid all fees, costs and expenses payable by
it to the Purchaser or otherwise pursuant to this Agreement; and
(f) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
(c) 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:
M-3-9
<PAGE> 557
(a) this Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) the Indemnification Agreement duly executed and delivered by the
Seller, the Purchaser and each of SSBI, Greenwich Capital, Chase, Deutsche Bank,
J.P. Morgan and ABN AMRO;
(c) the Pooling and Servicing Agreement duly executed and delivered by
SBMS VII, the Master Servicer, the Special Servicer and the Trustee;
(d) an Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, in
his or her individual capacity, and dated the Closing Date, and upon which the
Purchaser, SSBI, Greenwich Capital, Chase, Deutsche Bank, J.P. Morgan, ABN AMRO
and the Rating Agencies (collectively, the "Interested Parties") may rely,
attaching thereto as exhibits the organizational documents of the Seller, as in
full force and effect on the date hereof, and the Resolutions described in
clause(g) below;
(e) a certificate of good standing with respect to the Seller issued by
the Secretary of State of the State of New York dated not earlier than 10 days
prior to the Closing Date;
(f) a certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Interested Parties may
rely;
(g) resolutions of the Seller authorizing the transactions contemplated
by this Agreement, which resolutions will be in full force and effect, and will
not have been rescinded, as of the Closing Date;
(h) a written opinion of Sidley & Austin as special counsel for the
Seller, substantially in the form of Exhibit D-3A hereto (with any modifications
required by any Rating Agency, and subject to such reasonable assumptions,
qualifications and limitations as may be requested by counsel for the Seller and
acceptable to counsel for the Purchaser), dated the Closing Date and addressed
to the Purchaser, each of the other parties to the Pooling and Servicing
Agreement and each of the other Interested Parties;
(i) such other written opinions as may be required by either Rating
Agency (including, without limitation, a favorable opinion as to the "true sale"
characterization of the transfer of the Mortgage Loans contemplated by this
Agreement);
M-3-10
<PAGE> 558
(j) a written letter of Sidley & Austin as special counsel to the
Seller, substantially in the Form of Exhibit D-3B, relating to the disclosure in
the Prospectus regarding the Mortgage Loans and AMCC, dated the Closing Date and
addressed to the Purchaser and each of the other Interested Parties (except for
the Rating Agencies);
(k) one or more accountants' comfort letters, addressed, and in form
and substance reasonably acceptable, to SSBI, Greenwich Capital, Chase, Deutsche
Bank, J.P. Morgan and ABN AMRO, relating to the information regarding the
Mortgage Loans contained in the Prospectus and Memorandum that is of a
statistical nature; and
SECTION 8. Costs.
Any costs and expenses incurred by either party hereto in connection
with the transactions contemplated hereunder shall be borne by the parties in
accordance with the terms of that certain Term Sheet, dated October 20, 2000
(the "Term Sheet"), between the Seller, Salomon Brothers Realty Corp., Greenwich
Capital Financial Products, Inc. and LaSalle Bank National Association.
SECTION 9. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to the Purchaser at 388 Greenwich Street, New
York, New York 10013, attention: Angela Hutzel, facsimile no.: 212-816-8306, or
to such other address or facsimile number as may hereafter be furnished to the
Seller in writing by the Purchaser; and, if to the Seller, addressed to the
Seller at 1180 Northwest Maple Street, Suite 202, Issaquah, Washington 98027,
attention: Diane Kelsey Kutas, facsimile no.: 425-313-1005, or to such other
address or facsimile number as may hereafter be furnished to the Purchaser in
writing by the Seller.
SECTION 10. Characterization.
The parties hereto agree that it is their express intent that the
conveyance contemplated by this Agreement be, and be treated for all purposes
as, a sale by the Seller of all the Seller's right, title and interest in and to
the Mortgage Loans and the Loan REMIC Interests. The parties hereto further
agree that it is not their intention that such conveyance be deemed a pledge of
the Mortgage Loans and the Loan REMIC Interests by the Seller to secure a debt
or other obligation of the Seller. However, in the event that, notwithstanding
the intent of the parties, the Mortgage Loans and the Loan REMIC Interests are
held to continue to be property of the Seller, then: (a) this Agreement shall be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans and the Loan REMIC Interests provided for herein shall be deemed
to be a grant by the Seller to the Purchaser of a first priority security
interest in all of the Seller's right, title and interest in and to the Mortgage
Loans and the Loan REMIC Interests and all amounts payable to the holder(s) of
those assets in accordance with the terms thereof (other than scheduled payments
of interest and principal due on or before the Cut-off Date) and all proceeds of
the conversion, voluntary or involuntary, of the foregoing into cash,
M-3-11
<PAGE> 559
instruments, securities or other property; (c) the assignment by SBMS VII to the
Trustee of its interests in the Mortgage Loans and the Loan REMIC Interests as
contemplated by Section 16 hereof shall be deemed to be an assignment of any
security interest created hereunder; (d) the possession by the Purchaser or any
successor thereto of the related Mortgage Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction; and
(e) notifications to, and acknowledgments, receipts or confirmations from,
persons or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the Loan REMIC
Interests, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of this Agreement and the Pooling and Servicing Agreement.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans and the
Loan REMIC Interests by the Seller to the Purchaser.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN
M-3-12
<PAGE> 560
ACCORDANCE WITH THE 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 or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. In connection with its transfer of the Mortgage Loans and the
Loan REMIC Interests to the Trust as contemplated by the recitals hereto, SBMS
VII is expressly authorized to assign it rights and obligations under this
Agreement, in whole or in part, to the Trustee for the benefit of the registered
holders and beneficial owners of the Certificates. To the extent of any such
assignment, the Trustee (including acting through the Master Servicer and
Special Servicer pursuant to the terms of the Pooling and Servicing Agreement),
for the benefit of the registered holders and beneficial owners of the
Certificates, shall be the Purchaser hereunder. In connection with the transfer
of any Mortgage Loan by the Trust as contemplated by the terms of the Pooling
and Servicing Agreement, the Trustee, for the benefit of the registered holders
and beneficial owners of the Certificates, is expressly authorized to assign its
rights and obligations under this Agreement, in whole or in part, to the
transferee of such Mortgage Loan. To the extent of any such assignment, such
transferee shall be the Purchaser hereunder (but solely with respect to such
Mortgage Loan that was transferred to it). Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser, and their respective successors and permitted assigns.
SECTION 17. Amendments.
(a) No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
(b) Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, no amendment of the Pooling and Servicing
Agreement executed after the Closing Date that increases the obligations of or
otherwise adversely affects the Seller, shall be effective against the Seller.
M-3-13
<PAGE> 561
SECTION 18. Entire Agreement.
Except as otherwise expressly contemplated hereby, this Agreement
constitutes the entire agreement and understanding of the parties with respect
to the matters addressed herein, and this Agreement supersedes any prior
agreements and/or understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
M-3-14
<PAGE> 562
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
ARTESIA MORTGAGE CAPITAL
CORPORATION
By:
-------------------------
Name:
Title:
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
By:
-------------------------
Name:
Title:
M-3-15
<PAGE> 563
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached Schedule]
M-3-16
<PAGE> 564
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY CITY STATE ZIP PROPERTY PROP- CROSS
NUMBER NUMBER NATOR PROPERTY ADDRESS CODE SIZE ERTY COLLATER-
NAME SIZE ALIZED
UNIT (MORTGAGE
TYPE LOAN
GROUP)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex 12000 Burnsville MN 55337 114,100 SF No
Building Portland
Avenue
South
137 020-00000065 AMCC Charnelton 151 West Eugene OR 97401 57,410 SF No
Place Seventh
Office Avenue
Building
168 010-00000563 AMCC K-Mart 1901 East Savannah GA 31404 111,043 SF No
Shopping Victory
Center - Drive
Savannah
172 010-00000561 AMCC K-Mart 1508 Madison TN 37115 103,482 SF No
Shopping Gallatin
Center - Road
Nashville
173 010-00000540 AMCC 2150 2150 Hauppauge NY 11788 47,849 SF No
Joshua's Joshua's
Path Path
174 010-00000501 AMCC Ver-Sa-Til 18400 Chanhassen MN 55317 107,795 SF No
West
77th
Street
178 010-00000467 AMCC Pencader 110 Lake Newark DE 19702 79,184 SF No
Corporate Drive
Center
184 010-00000542 AMCC Cedar 14638 & Apple Valley MN 55124 26,887 SF No
Marketplace 14658
Cedar
Avenue
South
190 010-00000595 AMCC The Shops at 494-538 Smyrna TN 37167 32,000 SF No
Enon Springs Enon
Springs
Road
East
191 010-00000617 AMCC Sierra 1994 Clovis CA 93611 60 Units No
Heartland Shaw
Senior Avenue
Apartments
195 010-00000612 AMCC RPS 95 Colonie NY 12205 63,633 SF No
Warehouse Broderick
Street
Extension
196 010-00000583 AMCC 755 & 775 755 & San Luis CA 93401 43,896 SF No
Fiero Lane 775 Fiero Obispo
Lane
198 010-00000519 AMCC Plaza II 1200 Yakima WA 98902 30,680 SF No
Office Chesterly
Building Drive
200 010-00000393 AMCC Carriage 4700 Sioux Falls SD 57103 30 Units Yes (A6)
House South
Apartment Cliff
- Sioux Falls Avenue
201 010-00000394 AMCC Carriage 1511 8th Brookings SD 57006 25 Units Yes (A6)
House Street
Apartment South
- Brookings
202 010-00000392 AMCC Carriage 1300 Pierre SD 57501 25 Units Yes (A6)
House North
Apartment Harrison
- Pierre Avenue
204 010-00000634 AMCC CVS Harper 23975- St. Clair MI 48080 24,662 SF No
Center 24001 Shores
Harper
Avenue
213 010-00000594 AMCC 1500 1500 Albuquerque NM 87107 36,435 SF No
Renaissance Renaissance
Building Boulevard
N.E.
214 010-00000623 AMCC Etinuum 1001 East Yukon OK 73099 35,501 SF No
Office Main Street
Building
215 020-00000061 AMCC DHR Office 315 South Oregon City OR 97045 32,952 SF No
Building Beavercreek
Road
218 010-00000494 AMCC Warminster 318-356 Old Warminster PA 18974 28,390 SF No
Shopping York Road
Center
219 010-00000276 AMCC PBR II 738-746 Costa Mesa CA 92627 28,996 SF Yes (A7)
West 17th
Street
220 010-00000260 AMCC PBR I 1638 Costa Mesa CA 92626 26,163 SF Yes (A7)
Placentia
Avenue
223 010-00000470 AMCC 810-812 810-812 San Luis CA 93401 31,682 SF No
Fiero Lane Fiero Lane Obispo
224 010-00000568 AMCC Lab Corp of 212 Cherry New Castle DE 19720 26,800 SF No
America Lane Hundred
227 010-00000620 AMCC Hillcrest 18200 Olney MD 20832 19,233 SF No
Retail/Office Georgia
Shopping Avenue
Center
228 010-00000459 AMCC Cain Drive 66 to 126 Brentwood NY 11717 49,600 SF No
Warehouses Cain Drive
230 010-00000442 AMCC Macy 145-155 Sunnyvale CA 94086 21,410 SF No
Building North Wolfe
Road
234 010-00000507 AMCC The Culver 10811 Culver City CA 90232 22,849 SF No
Building Washington
Boulevard
235 010-00000491 AMCC Harvard 4415 South Tulsa OK 74135 30,879 SF No
Physicians Harvard
Building Avenue
236 010-00000299 AMCC Lyon Street 1620-1640 Santa Ana CA 92702 19,035 SF No
Retail East 1st
Street
237 010-00000360 AMCC 350 Newton 350 Newton Oakland CA 94606 42 Units No
Avenue Avenue
Apartments
238 010-00000522 AMCC Solar 3600 & 3610 Sioux Falls SD 57103 60 Units No
Gardens East Sixth
Street
239 010-00000291 AMCC Quality 5251 San Albuquerque NM 87109 69 Rooms No
Suites Antonio
Albuquerque Drive NE
240 010-00000603 AMCC Springville 786 West Springville UT 84663 34,500 SF No
Corners 1200 North
241 010-00000325 AMCC 224-234 East 224-234 East Westfield NJ 07090 9,188 SF No
Broad Street Broad Street
243 010-00000219 AMCC Black 9625 Black San Diego CA 92126 34,855 SF No
Mountain Mountain
Point Office Road
Building
244 010-00000627 AMCC Waste 8111 1st Seattle WA 98108 20,000 SF No
Management Avenue
Building South
245 010-00000551 AMCC Silver Lake 291 West Coeur ID 83814 16,584 SF No
Plaza Canfield D'Alene
Avenue
246 010-00000533 AMCC Checkmate 4755 & 4735 Las Vegas NV 89109 51 Units No
Apartments Deckow
Lane
247 010-00000626 AMCC Creekside 3940-3958 Nashville TN 37218 14,800 SF No
Center Clarksville
Highway
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / OWNER- ORIGINAL MORTGAGE RATE INTEREST
NUMBER NUMBER NATOR PROPERTY SHIP BALANCE RATE TYPE ACCRUAL
NAME INTEREST METHOD
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex Fee 6,800,000 8.7500% Fixed Actual/360
Building Simple
137 020-00000065 AMCC Charnelton Fee 6,750,000 8.3000% Fixed Actual/360
Place Simple
Office
Building
168 010-00000563 AMCC K-Mart Fee 4,090,446 8.0500% Fixed Actual/360
Shopping Simple
Center -
Savannah
172 010-00000561 AMCC K-Mart Fee 3,840,545 8.0500% Fixed Actual/360
Shopping Simple
Center -
Nashville
173 010-00000540 AMCC 2150 Fee 3,800,000 8.0500% Fixed Actual/360
Joshua's Simple
Path
174 010-00000501 AMCC Ver-Sa-Til Fee 3,750,000 7.8750% Fixed Actual/360
Simple
178 010-00000467 AMCC Pencader Fee 3,640,000 8.0000% Fixed Actual/360
Corporate Simple
Center
184 010-00000542 AMCC Cedar Fee 3,200,000 8.0000% Fixed Actual/360
Marketplace Simple
190 010-00000595 AMCC The Shops at Fee 2,895,000 8.1000% Fixed Actual/360
Enon Springs Simple
191 010-00000617 AMCC Sierra Fee 2,850,000 8.0000% Fixed Actual/360
Heartland Simple
Senior
Apartments
195 010-00000612 AMCC RPS Fee 2,700,000 8.1800% Fixed Actual/360
Warehouse Simple
196 010-00000583 AMCC 755 & 775 Fee 2,700,000 8.7500% Fixed Actual/360
Fiero Lane Simple
198 010-00000519 AMCC Plaza II Fee 2,600,000 8.0000% Fixed Actual/360
Office Simple
Building
200 010-00000393 AMCC Carriage Fee 1,100,000 7.5000% Fixed 30/360
House Simple
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage Fee 835,000 7.5000% Fixed 30/360
House Simple
Apartment
- Brookings
202 010-00000392 AMCC Carriage Fee 690,000 7.5000% Fixed 30/360
House Simple
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper Fee 2,450,000 8.1500% Fixed Actual/360
Center Simple
213 010-00000594 AMCC 1500 Fee 2,300,000 8.6500% Fixed Actual/360
Renaissance Simple
Building
214 010-00000623 AMCC Etinuum Fee 2,275,000 8.7700% Fixed Actual/360
Office Simple
Building
215 020-00000061 AMCC DHR Office Fee 2,300,000 8.1000% Fixed Actual/360
Building Simple
218 010-00000494 AMCC Warminster Fee 2,200,000 8.4000% Fixed Actual/360
Shopping Simple
Center
219 010-00000276 AMCC PBR II Fee 1,245,000 7.3500% Fixed Actual/360
Simple
220 010-00000260 AMCC PBR I Fee 900,000 7.4500% Fixed Actual/360
Simple
223 010-00000470 AMCC 810-812 Fee 2,000,000 7.9000% Fixed Actual/360
Fiero Lane Simple
224 010-00000568 AMCC Lab Corp of Fee 1,868,000 8.4500% Fixed Actual/360
America Simple
227 010-00000620 AMCC Hillcrest Fee 1,700,000 8.6800% Fixed Actual/360
Retail/Office Simple
Shopping
Center
228 010-00000459 AMCC Cain Drive Fee 1,700,000 8.5000% Fixed Actual/360
Warehouses Simple
230 010-00000442 AMCC Macy Fee 1,700,000 7.5000% Fixed Actual/360
Building Simple
234 010-00000507 AMCC The Culver Fee 1,500,000 8.2000% Fixed Actual/360
Building Simple
235 010-00000491 AMCC Harvard Fee 1,500,000 8.2000% Fixed Actual/360
Physicians Simple
Building
236 010-00000299 AMCC Lyon Street Fee 1,600,000 7.7500% Fixed 30/360
Retail Simple
237 010-00000360 AMCC 350 Newton Fee 1,500,000 6.7500% Fixed Actual/360
Avenue Simple
Apartments
238 010-00000522 AMCC Solar Fee 1,470,000 7.8500% Fixed Actual/360
Gardens Simple
239 010-00000291 AMCC Quality Fee 1,481,366 7.8000% Fixed 30/360
Suites Simple
Albuquerque
240 010-00000603 AMCC Springville Fee 1,440,000 8.5000% Fixed Actual/360
Corners Simple
241 010-00000325 AMCC 224-234 East Fee 1,500,000 7.2500% Fixed Actual/360
Broad Street Simple
243 010-00000219 AMCC Black Fee 1,450,000 7.9000% Fixed Actual/360
Mountain Simple
Point Office
Building
244 010-00000627 AMCC Waste Fee 1,400,000 8.4900% Fixed Actual/360
Management Simple
Building
245 010-00000551 AMCC Silver Lake Fee 1,400,000 8.3500% Fixed Actual/360
Plaza Simple
246 010-00000533 AMCC Checkmate Fee 1,356,600 8.3500% Fixed Actual/360
Apartments Simple
247 010-00000626 AMCC Creekside Fee 1,275,000 8.5500% Fixed Actual/360
Center Simple
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / LOAN NOTE DATE CONTROL LOAN ANTICI- SCHEDULED
NUMBER NUMBER NATOR PROPERTY TYPE NUMBER NUMBER PATED MATURITY
NAME REPAY- DATE
MENT DATE
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex Balloon 05/09/00 136 010-0000598 NAP 06/01/10
Building
137 020-00000065 AMCC Charnelton Balloon 12/23/99 137 020-0000065 NAP 01/01/10
Place
Office
Building
168 010-00000563 AMCC K-Mart Balloon 12/13/99 168 010-0000563 NAP 01/01/10
Shopping
Center -
Savannah
172 010-00000561 AMCC K-Mart Balloon 12/13/99 172 010-0000561 NAP 01/01/10
Shopping
Center -
Nashville
173 010-00000540 AMCC 2150 Balloon 11/04/99 173 010-0000540 NAP 12/01/09
Joshua's
Path
174 010-00000501 AMCC Ver-Sa-Til Balloon 06/21/99 174 010-0000501 NAP 07/01/09
178 010-00000467 AMCC Pencader Balloon 06/14/99 178 010-0000467 NAP 07/01/09
Corporate
Center
184 010-00000542 AMCC Cedar Balloon 10/01/99 184 010-0000542 NAP 11/01/09
Marketplace
190 010-00000595 AMCC The Shops at Balloon 04/26/00 190 010-0000595 NAP 05/01/10
Enon Springs
191 010-00000617 AMCC Sierra Balloon 07/07/00 191 010-0000617 NAP 08/01/10
Heartland
Senior
Apartments
195 010-00000612 AMCC RPS Balloon 07/05/00 195 010-0000612 NAP 08/01/10
Warehouse
196 010-00000583 AMCC 755 & 775 Balloon 02/28/00 196 010-0000583 NAP 03/01/10
Fiero Lane
198 010-00000519 AMCC Plaza II Balloon 08/25/99 198 010-0000519 NAP 09/01/09
Office
Building
200 010-00000393 AMCC Carriage Full 03/31/99 200 010-0000393 NAP 04/01/19
House Amort
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage Full 03/31/99 201 010-0000394 NAP 04/01/19
House Amort
Apartment
- Brookings
202 010-00000392 AMCC Carriage Full 03/31/99 202 010-0000392 NAP 04/01/19
House Amort
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper Balloon 10/05/00 204 010-0000634 NAP 11/01/10
Center
213 010-00000594 AMCC 1500 Balloon 04/14/00 213 010-0000594 NAP 05/01/10
Renaissance
Building
214 010-00000623 AMCC Etinuum Balloon 10/13/00 214 010-0000623 NAP 11/01/10
Office
Building
215 020-00000061 AMCC DHR Office Balloon 07/28/99 215 020-0000061 NAP 08/01/09
Building
218 010-00000494 AMCC Warminster Balloon 09/07/99 218 010-0000494 NAP 10/01/09
Shopping
Center
219 010-00000276 AMCC PBR II Balloon 08/03/98 219 010-0000276 NAP 09/01/08
220 010-00000260 AMCC PBR I Balloon 08/03/98 220 010-0000260 NAP 09/01/08
223 010-00000470 AMCC 810-812 Balloon 07/08/99 223 010-0000470 NAP 08/01/11
Fiero Lane
224 010-00000568 AMCC Lab Corp of Balloon 12/23/99 224 010-0000568 NAP 01/01/10
America
227 010-00000620 AMCC Hillcrest Balloon 06/23/00 227 010-0000620 NAP 07/01/10
Retail/Office
Shopping
Center
228 010-00000459 AMCC Cain Drive Balloon 06/21/99 228 010-0000459 NAP 07/01/09
Warehouses
230 010-00000442 AMCC Macy Balloon 03/26/99 230 010-0000442 NAP 04/01/09
Building
234 010-00000507 AMCC The Culver Balloon 08/12/99 234 010-0000507 NAP 09/01/09
Building
235 010-00000491 AMCC Harvard Balloon 07/27/99 235 010-0000491 NAP 08/01/09
Physicians
Building
236 010-00000299 AMCC Lyon Street Full 07/09/98 236 010-0000299 NAP 08/01/13
Retail Amort
237 010-00000360 AMCC 350 Newton Balloon 10/19/98 237 010-0000360 NAP 11/01/08
Avenue
Apartments
238 010-00000522 AMCC Solar Balloon 07/23/99 238 010-0000522 NAP 08/01/09
Gardens
239 010-00000291 AMCC Quality Full 09/24/99 239 010-0000291 NAP 02/01/19
Suites Amort
Albuquerque
240 010-00000603 AMCC Springville Balloon 05/12/00 240 010-0000603 NAP 06/01/10
Corners
241 010-00000325 AMCC 224-234 East Balloon 09/18/98 241 010-0000325 NAP 10/01/09
Broad Street
243 010-00000219 AMCC Black Balloon 04/28/98 243 010-0000219 NAP 05/01/08
Mountain
Point Office
Building
244 010-00000627 AMCC Waste Balloon 08/04/00 244 010-0000627 NAP 09/01/10
Management
Building
245 010-00000551 AMCC Silver Lake Balloon 10/27/99 245 010-0000551 NAP 12/01/09
Plaza
246 010-00000533 AMCC Checkmate Balloon 08/06/99 246 010-0000533 NAP 09/01/09
Apartments
247 010-00000626 AMCC Creekside Balloon 09/28/00 247 010-0000626 NAP 10/01/10
Center
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / MONTHLY ORIGINAL STATED SEASON- REMAIN-
NUMBER NUMBER NATOR PROPERTY DEBT TERM TO ORIGINAL ING ING TERM
NAME SERVICE MATURITY AMORT- (MONTHS) TO MATURITY
PAYMENT / ARD IZATION / ARD
(MONTHS) TERM (MONTHS)
(MONTHS)
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex 53,495.63 120 360 6 114
Building
137 020-00000065 AMCC Charnelton 50,947.96 120 360 11 109
Place
Office
Building
168 010-00000563 AMCC K-Mart 30,156.95 120 360 11 109
Shopping
Center -
Savannah
172 010-00000561 AMCC K-Mart 28,314.54 120 360 11 109
Shopping
Center -
Nashville
173 010-00000540 AMCC 2150 28,015.63 120 360 12 108
Joshua's
Path
174 010-00000501 AMCC Ver-Sa-Til 27,190.11 120 360 17 103
178 010-00000467 AMCC Pencader 26,709.04 120 360 17 103
Corporate
Center
184 010-00000542 AMCC Cedar 23,480.47 120 360 13 107
Marketplace
190 010-00000595 AMCC The Shops at 21,444.65 120 360 7 113
Enon Springs
191 010-00000617 AMCC Sierra 20,912.30 120 360 4 116
Heartland
Senior
Apartments
195 010-00000612 AMCC RPS 20,151.49 120 360 4 116
Warehouse
196 010-00000583 AMCC 755 & 775 21,240.92 120 360 9 111
Fiero Lane
198 010-00000519 AMCC Plaza II 20,067.23 120 300 15 105
Office
Building
200 010-00000393 AMCC Carriage 8,861.53 240 240 20 220
House
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage 6,726.71 240 240 20 220
House
Apartment
- Brookings
202 010-00000392 AMCC Carriage 5,558.60 240 240 20 220
House
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper 18,234.08 120 360 1 119
Center
213 010-00000594 AMCC 1500 17,930.10 120 360 7 113
Renaissance
Building
214 010-00000623 AMCC Etinuum 17,929.95 120 360 1 119
Office
Building
215 020-00000061 AMCC DHR Office 17,904.41 120 300 16 104
Building
218 010-00000494 AMCC Warminster 17,566.99 120 300 14 106
Shopping
Center
219 010-00000276 AMCC PBR II 9,079.32 120 300 27 93
220 010-00000260 AMCC PBR I 6,621.68 120 300 27 93
223 010-00000470 AMCC 810-812 15,304.07 144 300 16 128
Fiero Lane
224 010-00000568 AMCC Lab Corp of 16,151.88 120 240 11 109
America
227 010-00000620 AMCC Hillcrest 13,289.01 120 360 5 115
Retail/Office
Shopping
Center
228 010-00000459 AMCC Cain Drive 13,688.87 120 300 17 103
Warehouses
230 010-00000442 AMCC Macy 12,562.86 120 300 20 100
Building
234 010-00000507 AMCC The Culver 11,216.32 120 360 15 105
Building
235 010-00000491 AMCC Harvard 11,776.68 120 300 16 104
Physicians
Building
236 010-00000299 AMCC Lyon Street 15,060.41 180 180 28 152
Retail
237 010-00000360 AMCC 350 Newton 10,363.68 120 300 25 95
Avenue
Apartments
238 010-00000522 AMCC Solar 11,200.02 120 300 16 104
Gardens
239 010-00000291 AMCC Quality 12,360.55 233 233 15 218
Suites
Albuquerque
240 010-00000603 AMCC Springville 11,072.36 120 360 6 114
Corners
241 010-00000325 AMCC 224-234 East 11,855.64 132 240 26 106
Broad Street
243 010-00000219 AMCC Black 11,095.46 120 300 31 89
Mountain
Point Office
Building
244 010-00000627 AMCC Waste 12,140.67 120 240 3 117
Management
Building
245 010-00000551 AMCC Silver Lake 10,616.32 120 360 12 108
Plaza
246 010-00000533 AMCC Checkmate 10,287.21 120 360 15 105
Apartments
247 010-00000626 AMCC Creekside 9,848.87 120 360 2 118
Center
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / STATED CUT-OFF DATE LOAN BALANCE DEFEASE DEFEASE
NUMBER NUMBER NATOR PROPERTY REMAINING BALANCE AT MATURITY / START DATE END DATE
NAME AMORT- ARD
IZATION
TERM
(MONTHS)
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex 354 6,781,144.09 6,186,090.30 07/01/03 02/28/10
Building
137 020-00000065 AMCC Charnelton 349 6,709,489.20 6,079,590.97 02/01/05 09/30/09
Place
Office
Building
168 010-00000563 AMCC K-Mart 349 4,064,239.35 3,662,686.85 02/01/05 09/30/09
Shopping
Center -
Savannah
172 010-00000561 AMCC K-Mart 349 3,815,939.49 3,438,920.50 02/01/05 09/30/09
Shopping
Center -
Nashville
173 010-00000540 AMCC 2150 348 3,773,850.13 3,403,259.26 NAP NAP
Joshua's
Path
174 010-00000501 AMCC Ver-Sa-Til 343 3,711,531.69 3,345,270.03 08/01/04 03/31/09
178 010-00000467 AMCC Pencader 343 3,603,874.20 3,256,943.07 NAP NAP
Corporate
Center
184 010-00000542 AMCC Cedar 347 3,175,357.80 2,862,069.39 01/01/03 07/31/09
Marketplace
190 010-00000595 AMCC The Shops at 353 2,884,067.62 2,595,404.82 06/01/05 01/31/10
Enon Springs
191 010-00000617 AMCC Sierra 356 2,843,556.89 2,548,408.06 09/01/05 04/30/10
Heartland
Senior
Apartments
195 010-00000612 AMCC RPS 356 2,694,185.44 2,424,556.64 09/01/05 04/30/10
Warehouse
196 010-00000583 AMCC 755 & 775 351 2,688,987.40 2,456,921.97 03/01/05 11/30/09
Fiero Lane
198 010-00000519 AMCC Plaza II 285 2,561,221.85 2,143,321.38 10/01/04 05/31/09
Office
Building
200 010-00000393 AMCC Carriage 220 1,057,819.54 0.00 NAP NAP
House
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage 220 802,981.13 0.00 NAP NAP
House
Apartment
- Brookings
202 010-00000392 AMCC Carriage 220 663,541.26 0.00 NAP NAP
House
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper 359 2,448,405.50 2,197,976.72 12/01/05 07/31/10
Center
213 010-00000594 AMCC 1500 353 2,292,601.00 2,088,186.15 05/01/05 01/31/10
Renaissance
Building
214 010-00000623 AMCC Etinuum 359 2,273,696.51 2,069,819.78 12/01/05 07/31/10
Office
Building
215 020-00000061 AMCC DHR Office 284 2,264,274.12 1,901,880.11 NAP NAP
Building
218 010-00000494 AMCC Warminster 286 2,171,988.57 1,834,612.98 NAP NAP
Shopping
Center
219 010-00000276 AMCC PBR II 273 1,205,693.31 1,006,683.84 NAP NAP
220 010-00000260 AMCC PBR I 273 872,075.11 729,924.31 NAP NAP
223 010-00000470 AMCC 810-812 284 1,967,729.90 1,532,029.41 NAP NAP
Fiero Lane
224 010-00000568 AMCC Lab Corp of 229 1,836,081.28 1,337,819.84 NAP NAP
America
227 010-00000620 AMCC Hillcrest 355 1,696,218.89 1,544,396.30 08/01/05 03/31/10
Retail/Office
Shopping
Center
228 010-00000459 AMCC Cain Drive 283 1,674,172.07 1,422,017.64 NAP NAP
Warehouses
230 010-00000442 AMCC Macy 280 1,662,577.79 1,381,319.08 NAP NAP
Building
234 010-00000507 AMCC The Culver 345 1,487,285.20 1,347,998.37 NAP NAP
Building
235 010-00000491 AMCC Harvard 284 1,477,144.13 1,243,900.01 NAP NAP
Physicians
Building
236 010-00000299 AMCC Lyon Street 152 1,455,429.06 0.69 NAP NAP
Retail
237 010-00000360 AMCC 350 Newton 275 1,451,685.83 1,190,449.05 NAP NAP
Avenue
Apartments
238 010-00000522 AMCC Solar 284 1,446,056.89 1,206,792.09 NAP NAP
Gardens
239 010-00000291 AMCC Quality 218 1,438,473.02 0.00 03/01/04 01/31/14
Suites
Albuquerque
240 010-00000603 AMCC Springville 354 1,435,710.47 1,302,705.26 NAP NAP
Corners
241 010-00000325 AMCC 224-234 East 214 1,425,427.52 961,626.42 NAP NAP
Broad Street
243 010-00000219 AMCC Black 269 1,402,109.92 1,192,271.17 NAP NAP
Mountain
Point Office
Building
244 010-00000627 AMCC Waste 237 1,393,577.40 1,003,486.28 NAP NAP
Management
Building
245 010-00000551 AMCC Silver Lake 348 1,391,114.33 1,262,663.00 NAP NAP
Plaza
246 010-00000533 AMCC Checkmate 345 1,345,548.08 1,223,376.98 10/01/02 05/31/09
Apartments
247 010-00000626 AMCC Creekside 358 1,273,770.53 1,154,619.64 11/01/05 06/30/10
Center
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / YIELD YIELD PREPAY- PREPAY- YIELD YIELD
NUMBER NUMBER NATOR PROPERTY MAINTEN- MAINTEN- MENT MENT MAINTEN- MAINTEN-
NAME ANCE ANCE PENALTY PENALTY ANCE ANCE
PERIOD PERIOD END START END CALCULA- INTEREST
START DATE DATE DATE DATE TION RATE
METHOD
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
136 010-00000598 AMCC Telex NAP NAP NAP NAP NAP NAP
Building
137 020-00000065 AMCC Charnelton NAP NAP NAP NAP NAP NAP
Place
Office
Building
168 010-00000563 AMCC K-Mart NAP NAP NAP NAP NAP NAP
Shopping
Center -
Savannah
172 010-00000561 AMCC K-Mart NAP NAP NAP NAP NAP NAP
Shopping
Center -
Nashville
173 010-00000540 AMCC 2150 12/01/04 08/31/09 NAP NAP Present Treasury
Joshua's Value Flat-WAL
Path
174 010-00000501 AMCC Ver-Sa-Til NAP NAP NAP NAP NAP NAP
178 010-00000467 AMCC Pencader 07/01/04 03/31/09 NAP NAP Present Treasury
Corporate Value Flat-WAL
Center
184 010-00000542 AMCC Cedar NAP NAP NAP NAP NAP NAP
Marketplace
190 010-00000595 AMCC The Shops at NAP NAP NAP NAP NAP NAP
Enon Springs
191 010-00000617 AMCC Sierra NAP NAP NAP NAP NAP NAP
Heartland
Senior
Apartments
195 010-00000612 AMCC RPS NAP NAP NAP NAP NAP NAP
Warehouse
196 010-00000583 AMCC 755 & 775 NAP NAP NAP NAP NAP NAP
Fiero Lane
198 010-00000519 AMCC Plaza II NAP NAP NAP NAP NAP NAP
Office
Building
200 010-00000393 AMCC Carriage 04/01/04 12/31/18 NAP NAP Present Treasury
House Value Flat-WAL
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage 04/01/04 12/31/18 NAP NAP Present Treasury
House Value Flat-WAL
Apartment
- Brookings
202 010-00000392 AMCC Carriage 04/01/04 12/31/18 NAP NAP Present Treasury
House Value Flat-WAL
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper NAP NAP NAP NAP NAP NAP
Center
213 010-00000594 AMCC 1500 NAP NAP NAP NAP NAP NAP
Renaissance
Building
214 010-00000623 AMCC Etinuum NAP NAP NAP NAP NAP NAP
Office
Building
215 020-00000061 AMCC DHR Office 08/01/04 04/30/09 NAP NAP Present Treasury
Building Value Flat-WAL
218 010-00000494 AMCC Warminster 10/01/04 06/30/09 NAP NAP Present Treasury
Shopping Value Flat-WAL
Center
219 010-00000276 AMCC PBR II 09/01/01 02/29/08 NAP NAP Present Treasury
Value Flat-WAL
220 010-00000260 AMCC PBR I 09/01/01 02/29/08 NAP NAP Present Treasury
Value Flat-WAL
223 010-00000470 AMCC 810-812 08/01/04 04/30/11 NAP NAP Present Treasury
Fiero Lane Value Flat-WAL
224 010-00000568 AMCC Lab Corp of 01/01/05 09/30/09 NAP NAP Present Treasury
America Value Flat-WAL
227 010-00000620 AMCC Hillcrest NAP NAP NAP NAP NAP NAP
Retail/Office
Shopping
Center
228 010-00000459 AMCC Cain Drive 07/01/04 03/31/09 NAP NAP Present Treasury
Warehouses Value Flat-WAL
230 010-00000442 AMCC Macy 04/01/04 12/31/08 NAP NAP Present Treasury
Building Value Flat-WAL
234 010-00000507 AMCC The Culver 09/01/04 05/31/09 NAP NAP Present Treasury
Building Value Flat-WAL
235 010-00000491 AMCC Harvard 08/01/04 04/30/09 NAP NAP Present Treasury
Physicians Value Flat-WAL
Building
236 010-00000299 AMCC Lyon Street NAP NAP 09/01/01 07/31/13 NAP NAP
Retail
237 010-00000360 AMCC 350 Newton 11/01/03 05/31/08 NAP NAP Present Treasury
Avenue Value Flat-WAL
Apartments
238 010-00000522 AMCC Solar 08/01/04 04/30/09 NAP NAP Present Treasury
Gardens Value Flat-WAL
239 010-00000291 AMCC Quality NAP NAP NAP NAP NAP NAP
Suites
Albuquerque
240 010-00000603 AMCC Springville 07/01/05 02/28/10 NAP NAP Present Treasury
Corners Value Flat-WAL
241 010-00000325 AMCC 224-234 East 10/01/03 03/31/09 NAP NAP Present Treasury
Broad Street Value Flat-WAL
243 010-00000219 AMCC Black 05/01/03 10/31/07 NAP NAP Present Treasury
Mountain Value Flat-WAL
Point Office
Building
244 010-00000627 AMCC Waste 10/01/05 05/31/10 NAP NAP Present Treasury
Management Value Flat-WAL
Building
245 010-00000551 AMCC Silver Lake 12/01/04 08/31/09 NAP NAP Present Treasury
Plaza Value Flat-WAL
246 010-00000533 AMCC Checkmate NAP NAP NAP NAP NAP NAP
Apartments
247 010-00000626 AMCC Creekside NAP NAP NAP NAP NAP NAP
Center
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / MASTER
NUMBER NUMBER NATOR PROPERTY SERVICING
NAME FEE RATE
-----------------------------------------------------------------
<S> <C> <C> <C> <C>
136 010-00000598 AMCC Telex 0.0200%
Building
137 020-00000065 AMCC Charnelton 0.0200%
Place
Office
Building
168 010-00000563 AMCC K-Mart 0.0200%
Shopping
Center -
Savannah
172 010-00000561 AMCC K-Mart 0.0200%
Shopping
Center -
Nashville
173 010-00000540 AMCC 2150 0.0200%
Joshua's
Path
174 010-00000501 AMCC Ver-Sa-Til 0.0200%
178 010-00000467 AMCC Pencader 0.0200%
Corporate
Center
184 010-00000542 AMCC Cedar 0.0200%
Marketplace
190 010-00000595 AMCC The Shops at 0.0200%
Enon Springs
191 010-00000617 AMCC Sierra 0.0200%
Heartland
Senior
Apartments
195 010-00000612 AMCC RPS 0.0200%
Warehouse
196 010-00000583 AMCC 755 & 775 0.0200%
Fiero Lane
198 010-00000519 AMCC Plaza II 0.0200%
Office
Building
200 010-00000393 AMCC Carriage 0.0200%
House
Apartment
- Sioux Falls
201 010-00000394 AMCC Carriage 0.0200%
House
Apartment
- Brookings
202 010-00000392 AMCC Carriage 0.0200%
House
Apartment
- Pierre
204 010-00000634 AMCC CVS Harper 0.0200%
Center
213 010-00000594 AMCC 1500 0.0200%
Renaissance
Building
214 010-00000623 AMCC Etinuum 0.0200%
Office
Building
215 020-00000061 AMCC DHR Office 0.0200%
Building
218 010-00000494 AMCC Warminster 0.0200%
Shopping
Center
219 010-00000276 AMCC PBR II 0.0200%
220 010-00000260 AMCC PBR I 0.0200%
223 010-00000470 AMCC 810-812 0.0200%
Fiero Lane
224 010-00000568 AMCC Lab Corp of 0.0200%
America
227 010-00000620 AMCC Hillcrest 0.0200%
Retail/Office
Shopping
Center
228 010-00000459 AMCC Cain Drive 0.0200%
Warehouses
230 010-00000442 AMCC Macy 0.0200%
Building
234 010-00000507 AMCC The Culver 0.0200%
Building
235 010-00000491 AMCC Harvard 0.0200%
Physicians
Building
236 010-00000299 AMCC Lyon Street 0.0200%
Retail
237 010-00000360 AMCC 350 Newton 0.0200%
Avenue
Apartments
238 010-00000522 AMCC Solar 0.0200%
Gardens
239 010-00000291 AMCC Quality 0.0200%
Suites
Albuquerque
240 010-00000603 AMCC Springville 0.0200%
Corners
241 010-00000325 AMCC 224-234 East 0.0200%
Broad Street
243 010-00000219 AMCC Black 0.0200%
Mountain
Point Office
Building
244 010-00000627 AMCC Waste 0.0200%
Management
Building
245 010-00000551 AMCC Silver Lake 0.0200%
Plaza
246 010-00000533 AMCC Checkmate 0.0200%
Apartments
247 010-00000626 AMCC Creekside 0.0200%
Center
</TABLE>
M-3-17
<PAGE> 565
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / PROPERTY CITY STATE ZIP PROPERTY PROP- CROSS
NUMBER NUMBER NATOR PROPERTY ADDRESS CODE SIZE ERTY COLLATER-
NAME SIZE ALIZED
UNIT (MORTGAGE
TYPE LOAN
GROUP)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne 31722 West Carnation WA 98014 28,464 SF No
Center Eugene
Street
249 010-00000318 AMCC South Fridley 1050, 1090, Fridley MN 55421 64 Units No
Apartments 1120 & 1170
52nd Avenue
NE
253 010-00000298 AMCC Howard 335 London Lake AZ 86403 47 Rooms No
Johnson Bridge Road Havasu City
Lake Havasu
255 010-00000480 AMCC 261 East 300 261 East 300 Salt Lake UT 84111 23,666 SF No
South South City
256 010-00000316 AMCC Hyde Park 1350, 1352, New MN 55112 68 Units No
Apartments 1354, 1362 Brighton
7th Street
NW
257 010-00000636 AMCC Hawthorne 5893-5899 Raytown MO 64133 41,916 SF No
Business Raytown
Park Road
260 010-00000505 AMCC Lovell 9030 Red Columbia MD 21045 20,388 SF No
Building Branch Road
261 010-00000441 AMCC Nationwide 2220 South East RI 02818 11,695 SF No
Insurance County Trail Greenwich
Office (Route 2)
Building
262 010-00000380 AMCC Attache 275 Century Louisville CO 80027 10,300 SF No
Building Circle
264 010-00000555 AMCC Bluebonnet 100 Stephenville TX 76401 80 Units No
Apartments Bluebonnet
Street
265 010-00000534 AMCC 8th Street 210, 214 and Las Vegas NV 89101 36 Units No
Apartments 218 South
8th Street
267 020-00000029 AMCC Ralph's 2035 4th Seattle WA 98121 10,997 SF No
Grocery & Avenue
Deli
268 020-00000055 AMCC Market 1520 24th Billings MT 59102 12,533 SF No
Square Street West
269 010-00000334 AMCC Blockbuster 824 & 836 Salt Lake UT 84116 7,975 SF No
Video-Salt West North City
Lake City Temple
270 010-00000366 AMCC Prudential 4710 Table Boulder CO 80303 8,674 SF No
Wise- Mesa Drive
McIntire
Office
Building
271 020-00000023 AMCC Licton 9242 Seattle WA 98103 16 Units No
Springs Ashworth
Court Avenue
Apartments North
272 010-00000212 AMCC Surgicenter 23500 Torrance CA 90505 9,330 SF No
of South Bay Madison
Street
273 010-00000338 AMCC West Fargo 1321 14th West Fargo ND 58078 24 Units No
Living Avenue East
Center
274 010-00000457 AMCC Edgewood 607 Duluth MN 55811 24 Units No
Apartments Kenwood
Avenue
275 010-00000321 AMCC Washington/ 4810 & 4820 Houston TX 77007 19,069 SF No
Shepherd Washington
Retail Center Avenue
276 010-00000020 AMCC Candlewood 123-131 New Britain CT 06051 40 Units No
Apartments Clinic Drive
277 010-00000431 AMCC Bishop 1410 Harris Houston TX 77220 45,500 SF No
Lifting Street
Products
278 010-00000382 AMCC 188 State 188 State Portland ME 04101 14,025 SF No
Street Street
279 010-00000259 AMCC Woodstone 8200-8247 Owasso OK 74055 40 Units No
Properties North 116th
East Avenue
280 010-00000553 AMCC East Gate 1865 Wilson St. Paul MN 55119 23 Units No
Manor Avenue
Apartments
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / CROSS OWNER- ORIGINAL MORTGAGE RATE INTEREST LOAN
NUMBER NUMBER NATOR PROPERTY COLLATER- SHIP BALANCE RATE TYPE ACCRUAL TYPE
NAME ALIZED INTEREST METHOD
MORTGAGE
LOAN GROUP
AGGREGATE
CUT-OFF
DATE
BALANCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne 1,257,846 Part Fee 1,300,000 7.4000% Fixed Actual/360 Balloon
Center Simple &
Part
Leasehold
249 010-00000318 AMCC South Fridley 1,256,149 Fee 1,325,000 7.3000% Fixed 30/360 Full
Apartments Simple Amort
253 010-00000298 AMCC Howard 1,148,370 Fee 1,182,907 7.8000% Fixed 30/360 Full
Johnson Simple Amort
Lake Havasu
255 010-00000480 AMCC 261 East 300 1,128,825 Fee 1,150,000 7.5000% Fixed Actual/360 Balloon
South Simple
256 010-00000316 AMCC Hyde Park 1,123,751 Fee 1,180,000 7.3000% Fixed 30/360 Full
Apartments Simple Amort
257 010-00000636 AMCC Hawthorne 1,119,278 Fee 1,120,000 8.2000% Fixed Actual/360 Balloon
Business Simple
Park
260 010-00000505 AMCC Lovell 1,040,104 Fee 1,050,000 8.0000% Fixed Actual/360 Balloon
Building Simple
261 010-00000441 AMCC Nationwide 1,036,271 Fee 1,075,000 7.9000% Fixed Actual/360 Balloon
Insurance Simple
Office
Building
262 010-00000380 AMCC Attache 1,029,448 Fee 1,060,000 7.4000% Fixed Actual/360 Balloon
Building Simple
264 010-00000555 AMCC Bluebonnet 975,505 Fee 985,000 8.6000% Fixed Actual/360 Balloon
Apartments Simple
265 010-00000534 AMCC 8th Street 973,008 Fee 981,000 8.3500% Fixed Actual/360 Balloon
Apartments Simple
267 020-00000029 AMCC Ralph's 880,257 Fee 910,000 7.5500% Fixed Actual/360 Balloon
Grocery & Simple
Deli
268 020-00000055 AMCC Market 831,794 Fee 850,000 7.9000% Fixed Actual/360 Balloon
Square Simple
269 010-00000334 AMCC Blockbuster 823,856 Fee 850,000 7.5000% Fixed Actual/360 Balloon
Video-Salt Simple
Lake City
270 010-00000366 AMCC Prudential 761,500 Fee 785,000 7.4000% Fixed Actual/360 Balloon
Wise- Simple
McIntire
Office
Building
271 020-00000023 AMCC Licton 725,049 Fee 750,000 7.4500% Fixed Actual/360 Balloon
Springs Simple
Court
Apartments
272 010-00000212 AMCC Surgicenter 673,400 Fee 710,000 7.6000% Fixed Actual/360 Balloon
of South Bay Simple
273 010-00000338 AMCC West Fargo 665,633 Fee 700,000 7.3500% Fixed Actual/360 Balloon
Living Simple
Center
274 010-00000457 AMCC Edgewood 652,904 Fee 675,000 7.9000% Fixed 30/360 Full
Apartments Simple Amort
275 010-00000321 AMCC Washington/ 641,874 Fee 700,000 7.2500% Fixed 30/360 Full
Shepherd Simple Amort
Retail Center
276 010-00000020 AMCC Candlewood 602,312 Fee 630,000 9.3500% Fixed 30/360 Balloon
Apartments Simple
277 010-00000431 AMCC Bishop 574,976 Fee 650,000 8.2000% Fixed 30/360 Full
Lifting Simple Amort
Products
278 010-00000382 AMCC 188 State 508,483 Fee 532,000 7.5000% Fixed Actual/360 Balloon
Street Simple
279 010-00000259 AMCC Woodstone 499,921 Fee 550,000 7.6500% Fixed 30/360 Full
Properties Simple Amort
280 010-00000553 AMCC East Gate 494,988 Fee 500,000 8.4000% Fixed Actual/360 Balloon
Manor Simple
Apartments
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / NOTE DATE CONTROL LOAN ANTICI- SCHEDULED MONTHLY
NUMBER NUMBER NATOR PROPERTY NUMBER NUMBER PATED MATURITY DEBT
NAME REPAY- DATE SERVICE
MENT DATE PAYMENT
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne 07/30/98 248 020-0000030 NAP 08/01/08 9,522.49
Center
249 010-00000318 AMCC South Fridley 09/30/98 249 010-0000318 NAP 10/01/18 10,512.66
Apartments
253 010-00000298 AMCC Howard 09/24/99 253 010-0000298 NAP 01/01/19 9,888.44
Johnson
Lake Havasu
255 010-00000480 AMCC 261 East 300 06/11/99 255 010-0000480 NAP 07/01/09 8,498.40
South
256 010-00000316 AMCC Hyde Park 11/23/98 256 010-0000316 NAP 12/01/18 9,362.22
Apartments
257 010-00000636 AMCC Hawthorne 10/31/00 257 010-0000636 NAP 11/01/10 8,374.85
Business
Park
260 010-00000505 AMCC Lovell 07/15/99 260 010-0000505 NAP 08/01/09 7,704.53
Building
261 010-00000441 AMCC Nationwide 02/26/99 261 010-0000441 NAP 03/01/09 8,924.95
Insurance
Office
Building
262 010-00000380 AMCC Attache 10/29/98 262 010-0000380 NAP 11/01/08 7,764.49
Building
264 010-00000555 AMCC Bluebonnet 12/22/99 264 010-0000555 NAP 01/01/10 7,997.98
Apartments
265 010-00000534 AMCC 8th Street 08/06/99 265 010-0000534 NAP 09/01/09 7,439.01
Apartments
267 020-00000029 AMCC Ralph's 06/30/98 267 020-0000029 NAP 07/01/10 6,754.45
Grocery &
Deli
268 020-00000055 AMCC Market 02/03/99 268 020-0000055 NAP 03/01/09 6,504.23
Square
269 010-00000334 AMCC Blockbuster 08/28/98 269 010-0000334 NAP 09/01/08 6,281.43
Video-Salt
Lake City
270 010-00000366 AMCC Prudential 10/02/98 270 010-0000366 NAP 10/01/08 5,750.12
Wise-
McIntire
Office
Building
271 020-00000023 AMCC Licton 06/10/98 271 020-0000023 NAP 07/01/08 5,518.07
Springs
Court
Apartments
272 010-00000212 AMCC Surgicenter 07/15/98 272 010-0000212 NAP 08/01/08 5,763.21
of South Bay
273 010-00000338 AMCC West Fargo 09/17/98 273 010-0000338 NAP 10/01/08 5,575.12
Living
Center
274 010-00000457 AMCC Edgewood 05/05/99 274 010-0000457 NAP 06/01/19 5,604.04
Apartments
275 010-00000321 AMCC Washington/ 10/19/98 275 010-0000321 NAP 11/01/13 6,390.05
Shepherd
Retail Center
276 010-00000020 AMCC Candlewood 03/13/97 276 010-0000020 NAP 04/01/07 5,438.74
Apartments
277 010-00000431 AMCC Bishop 03/23/99 277 010-0000431 NAP 04/01/09 7,955.16
Lifting
Products
278 010-00000382 AMCC 188 State 11/12/98 278 010-0000382 NAP 12/01/08 4,285.76
Street
279 010-00000259 AMCC Woodstone 07/23/98 279 010-0000259 NAP 08/01/13 5,145.57
Properties
280 010-00000553 AMCC East Gate 12/06/99 280 010-0000553 NAP 01/01/10 3,992.50
Manor
Apartments
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / ORIGINAL STATED SEASON- REMAIN- STATED
NUMBER NUMBER NATOR PROPERTY TERM TO ORIGINAL ING ING TERM REMAINING
NAME MATURITY AMORT- (MONTHS) TO MATURITY AMORT-
/ ARD IZATION / ARD IZATION
(MONTHS) TERM (MONTHS) TERM
(MONTHS) (MONTHS)
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne 120 300 28 92 272
Center
249 010-00000318 AMCC South Fridley 240 240 26 214 214
Apartments
253 010-00000298 AMCC Howard 232 232 15 217 217
Johnson
Lake Havasu
255 010-00000480 AMCC 261 East 300 120 300 17 103 283
South
256 010-00000316 AMCC Hyde Park 240 240 24 216 216
Apartments
257 010-00000636 AMCC Hawthorne 120 360 1 119 359
Business
Park
260 010-00000505 AMCC Lovell 120 360 16 104 344
Building
261 010-00000441 AMCC Nationwide 120 240 21 99 219
Insurance
Office
Building
262 010-00000380 AMCC Attache 120 300 25 95 275
Building
264 010-00000555 AMCC Bluebonnet 120 300 11 109 289
Apartments
265 010-00000534 AMCC 8th Street 120 360 15 105 345
Apartments
267 020-00000029 AMCC Ralph's 144 300 29 115 271
Grocery &
Deli
268 020-00000055 AMCC Market 120 300 21 99 279
Square
269 010-00000334 AMCC Blockbuster 120 300 27 93 273
Video-Salt
Lake City
270 010-00000366 AMCC Prudential 120 300 26 94 274
Wise-
McIntire
Office
Building
271 020-00000023 AMCC Licton 120 300 29 91 271
Springs
Court
Apartments
272 010-00000212 AMCC Surgicenter 120 240 28 92 212
of South Bay
273 010-00000338 AMCC West Fargo 120 240 26 94 214
Living
Center
274 010-00000457 AMCC Edgewood 240 240 18 222 222
Apartments
275 010-00000321 AMCC Washington/ 180 180 25 155 155
Shepherd
Retail Center
276 010-00000020 AMCC Candlewood 120 300 44 76 256
Apartments
277 010-00000431 AMCC Bishop 120 120 20 100 100
Lifting
Products
278 010-00000382 AMCC 188 State 120 240 24 96 216
Street
279 010-00000259 AMCC Woodstone 180 180 28 152 152
Properties
280 010-00000553 AMCC East Gate 120 300 11 109 289
Manor
Apartments
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / CUT-OFF DATE LOAN BALANCE DEFEASE DEFEASE YIELD
NUMBER NUMBER NATOR PROPERTY BALANCE AT MATURITY / START DATE END DATE MAINTEN-
NAME ARD ANCE
PERIOD
START DATE
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne 1,257,845.64 1,052,942.26 NAP NAP 08/01/00
Center
249 010-00000318 AMCC South Fridley 1,256,148.95 0.00 NAP NAP 10/01/03
Apartments
253 010-00000298 AMCC Howard 1,148,369.52 0.00 02/01/04 12/31/13 NAP
Johnson
Lake Havasu
255 010-00000480 AMCC 261 East 300 1,128,824.58 934,529.42 NAP NAP 07/01/04
South
256 010-00000316 AMCC Hyde Park 1,123,751.04 0.00 NAP NAP 12/01/03
Apartments
257 010-00000636 AMCC Hawthorne 1,119,278.48 1,005,961.71 12/01/05 07/31/10 NAP
Business
Park
260 010-00000505 AMCC Lovell 1,040,104.09 939,328.74 NAP NAP 08/01/04
Building
261 010-00000441 AMCC Nationwide 1,036,270.65 756,091.01 NAP NAP 03/01/04
Insurance
Office
Building
262 010-00000380 AMCC Attache 1,029,447.80 858,360.20 NAP NAP 11/01/03
Building
264 010-00000555 AMCC Bluebonnet 975,505.19 825,729.94 NAP NAP 01/01/05
Apartments
265 010-00000534 AMCC 8th Street 973,007.92 884,661.16 10/01/02 05/31/09 NAP
Apartments
267 020-00000029 AMCC Ralph's 880,257.05 688,075.01 NAP NAP 07/01/03
Grocery &
Deli
268 020-00000055 AMCC Market 831,794.32 699,023.22 NAP NAP 04/01/04
Square
269 010-00000334 AMCC Blockbuster 823,855.65 690,407.74 NAP NAP 09/01/03
Video-Salt
Lake City
270 010-00000366 AMCC Prudential 761,499.87 635,789.65 NAP NAP 11/01/03
Wise-
McIntire
Office
Building
271 020-00000023 AMCC Licton 725,049.40 608,496.61 NAP NAP 07/01/03
Springs
Court
Apartments
272 010-00000212 AMCC Surgicenter 673,400.49 493,894.85 NAP NAP 08/01/03
of South Bay
273 010-00000338 AMCC West Fargo 665,632.63 482,602.19 NAP NAP 10/01/03
Living
Center
274 010-00000457 AMCC Edgewood 652,904.01 0.00 NAP NAP 06/01/04
Apartments
275 010-00000321 AMCC Washington/ 641,873.72 0.00 NAP NAP 11/01/03
Shepherd
Retail Center
276 010-00000020 AMCC Candlewood 602,311.53 525,385.10 NAP NAP 04/01/02
Apartments
277 010-00000431 AMCC Bishop 574,975.87 0.00 NAP NAP 04/01/04
Lifting
Products
278 010-00000382 AMCC 188 State 508,483.10 368,725.08 NAP NAP 12/01/03
Street
279 010-00000259 AMCC Woodstone 499,921.46 0.00 NAP NAP 08/01/01
Properties
280 010-00000553 AMCC East Gate 494,988.34 416,838.44 02/01/03 09/30/09 NAP
Manor
Apartments
</TABLE>
<TABLE>
<CAPTION>
CONTROL LOAN ORIGI- LOAN / YIELD PREPAY- PREPAY- YIELD YIELD MASTER
NUMBER NUMBER NATOR PROPERTY MAINTEN- MENT MENT MAINTE MAINTEN- SERVICING
NAME ANCE PENALTY PENALTY NANCE ANCE FEE RATE
PERIOD END START END CALCULA- INTEREST
DATE DATE DATE TION RATE
METHOD
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
248 020-00000030 AMCC Tolt Towne 01/31/08 NAP NAP Present Treasury 0.0200%
Center Value Flat-WAL
249 010-00000318 AMCC South Fridley 06/30/18 NAP NAP Present Treasury 0.0200%
Apartments Value Flat-WAL
253 010-00000298 AMCC Howard NAP NAP NAP NAP NAP 0.0200%
Johnson
Lake Havasu
255 010-00000480 AMCC 261 East 300 03/31/09 NAP NAP Present Treasury 0.0200%
South Value Flat-WAL
256 010-00000316 AMCC Hyde Park 08/31/18 NAP NAP Present Treasury 0.0200%
Apartments Value Flat-WAL
257 010-00000636 AMCC Hawthorne NAP NAP NAP NAP NAP 0.0200%
Business
Park
260 010-00000505 AMCC Lovell 04/30/09 NAP NAP Present Treasury 0.0200%
Building Value Flat-WAL
261 010-00000441 AMCC Nationwide 11/30/08 NAP NAP Present Treasury 0.0200%
Insurance Value Flat-WAL
Office
Building
262 010-00000380 AMCC Attache 07/31/08 NAP NAP Present Treasury 0.0200%
Building Value Flat-WAL
264 010-00000555 AMCC Bluebonnet 09/30/09 NAP NAP Present Treasury 0.0200%
Apartments Value Flat-WAL
265 010-00000534 AMCC 8th Street NAP NAP NAP NAP NAP 0.0200%
Apartments
267 020-00000029 AMCC Ralph's 12/31/09 NAP NAP Present Treasury 0.0200%
Grocery & Value Flat-WAL
Deli
268 020-00000055 AMCC Market 11/30/08 NAP NAP Present Treasury 0.0200%
Square Value Flat-WAL
269 010-00000334 AMCC Blockbuster 05/31/08 NAP NAP Present Treasury 0.0200%
Video-Salt Value Flat-WAL
Lake City
270 010-00000366 AMCC Prudential 06/30/08 NAP NAP Present Treasury 0.0200%
Wise- Value Flat-WAL
McIntire
Office
Building
271 020-00000023 AMCC Licton 03/31/08 NAP NAP Present Treasury 0.0200%
Springs Value Flat-WAL
Court
Apartments
272 010-00000212 AMCC Surgicenter 02/29/08 NAP NAP Present Treasury 0.0200%
of South Bay Value Flat-WAL
273 010-00000338 AMCC West Fargo 03/31/08 NAP NAP Present Treasury 0.0200%
Living Value Flat-WAL
Center
274 010-00000457 AMCC Edgewood 02/28/19 NAP NAP Present Treasury 0.0200%
Apartments Value Flat-WAL
275 010-00000321 AMCC Washington/ 07/31/13 NAP NAP Present Treasury 0.0200%
Shepherd Value Flat-WAL
Retail Center
276 010-00000020 AMCC Candlewood 03/31/07 NAP NAP Present Treasury 0.0200%
Apartments Value +0.50%
277 010-00000431 AMCC Bishop 12/31/08 NAP NAP Present Treasury 0.0200%
Lifting Value Flat-WAL
Products
278 010-00000382 AMCC 188 State 08/31/08 NAP NAP Present Treasury 0.0200%
Street Value Flat-WAL
279 010-00000259 AMCC Woodstone 01/31/13 NAP NAP Present Treasury 0.0200%
Properties Value Flat-WAL
280 010-00000553 AMCC East Gate NAP NAP NAP NAP NAP 0.0200%
Manor
Apartments
</TABLE>
M-3-18
<PAGE> 566
EXHIBIT B
CORPORATE REPRESENTATIONS AND WARRANTIES
The Seller hereby represents and warrants, as of the Closing
Date, that:
(a) The Seller is a duly formed corporation, validly existing
and in good standing under the laws of Delaware. The principal place of business
and chief executive office of the Seller is located in the State of Washington.
(b) The Seller has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(c) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(d) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this Agreement by
the Seller, will not violate the Seller's organizational documents or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material agreement
or instrument to which it is a party or which is applicable to it or any of its
assets. Attached hereto as Exhibit E are true, correct, and complete copies of
the Seller's organizational documents in effect as of the Closing Date.
(e) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Seller's good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(f) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the Seller from
entering into this Agreement or, in the Seller's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of the
Seller to perform its obligations under this Agreement or the financial
condition of the Seller.
(g) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency or body
is required for the consummation
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by the Seller of the transactions contemplated herein, except for those
consents, approvals, authorizations and orders that previously have been
obtained and those filings and registrations that previously have been
completed.
(h) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(i) The transfer of the Mortgage Loans and the Loan REMIC
Interests by the Seller to the Purchaser, as contemplated herein, is not subject
to any bulk transfer or similar law in effect in any applicable jurisdiction.
(j) The Seller is not transferring the Mortgage Loans and the
Loan REMIC Interests to the Purchaser with any intent to hinder, delay or
defraud its present or future creditors.
(k) The Seller will be solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Mortgage Loans and
the Loan REMIC Interests to the Purchaser, as contemplated herein.
(l) After giving effect to its transfer of the Mortgage Loans
and the Loan REMIC Interests to the Purchaser, as provided herein, the value of
the Seller's assets, either taken at their present fair saleable value or at
fair valuation, will exceed the amount of the Seller's debts and obligations,
including contingent and unliquidated debts and obligations of the Seller, and
the Seller will not be left with unreasonably small assets or capital with which
to engage in and conduct its business.
(m) 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.
(n) In connection with, and at the time of, its transfer of
the Mortgage Loans hereunder, the Seller will receive consideration constituting
at least reasonably equivalent value and fair consideration for the assets
transferred.
(o) The execution, delivery and performance of this Agreement
by the Seller constitute bona fide and arm's length transactions and are
undertaken in the ordinary course of business of the Seller.
(p) Seller is not a party to or bound by a written or oral agreement granting to
any person or entity an option or right of first refusal or other arrangement to
acquire directly or indirectly any of the Mortgage Loans.
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<PAGE> 568
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
The Seller (with respect to each Mortgage Loan unless
otherwise indicated) hereby represents and warrants to SBMS VII and its
successors and assigns as provided in this Agreement (subject to the
qualifications with respect to matters of enforceability set forth below in the
last paragraph of this Exhibit C) that as of the date specified below or, if no
such date is specified, as of the date hereof, and as of the Closing Date and
subject to the exceptions disclosed on Schedule C-1 attached hereto:
(1) Mortgage Loan Characteristics. The information set forth
in the Mortgage Loan Schedule is true, correct and complete in all material
respects; provided, however, that with respect to the information set forth with
respect to each Mortgage Loan under the captions "Physical Occupancy %,"
"Occupancy As of Date," "1998 NOI," "1999 NOI," "Underwritten NOI,"
"Underwritten Net Cash Flow" and "Underwritten NOI DSCR," the Seller represents
only that such information is a correct and accurate reproduction or derivation,
as adjusted by the Seller in accordance with its customary underwriting
practices and procedures, of the information provided to it by the related
Borrower (or an affiliate or principal thereof) and takes no responsibility for
the accuracy or completeness of any such information provided by the related
Borrower (or such affiliate or principal); provided, further, that the Seller
has no actual knowledge that such information is incorrect, inaccurate or
incomplete following the reasonable and customary due diligence performed by the
Seller in connection with its origination or purchase of the Mortgage Loans.
(2) Domestic Borrower. The related Borrower is an individual
who is a citizen of, or an entity organized under the laws of, a state of the
United States of America.
(3) Single-Purpose, Bankruptcy Remote Entity. Each Borrower of
a Mortgage Loan in excess of $25,000,000 is an entity which has represented in
connection with the origination of the Mortgage Loan, and whose organizational
documents as of the date of origination of the Mortgage Loan provide that so
long as the Mortgage Loan is outstanding, it will be a single-purpose entity
whose activities and ability to incur debt are restricted by the applicable
Mortgage or the organizational documents in a manner intended to make the
likelihood of bankruptcy proceedings being commenced by or against such Borrower
remote, and as to which the Borrower has delivered an opinion of counsel
concerning substantive non-consolidation and as to which the Borrower has at
least one independent director. For this purpose, "single-purpose entity" shall
mean a Person, other than an individual, which does not engage in any business
unrelated to the related Mortgaged Property and its financing, does not have any
assets other than those related to its interest in such Mortgaged Property or
its financing, or any indebtedness other than as permitted by the related
Mortgage or the other Mortgage Loan documents, has its own books and records
separate and apart from any other Person and holds itself out as being a legal
entity, separate and apart from any other Person.
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<PAGE> 569
(4) Delivery of Mortgage Loans Documents. The Seller has
caused or will cause to be delivered to the Purchaser (or its designee) within
the time period prescribed in Section 2 each of the documents comprising the
Mortgage File for such Mortgage Loan.
(5) Payment Current. All payments required to be made with
respect to such Mortgage Loan under the terms of the related Mortgage Note or
the related Mortgage (inclusive of any applicable grace or cure period) up to
the Closing Date have been made. Within the twelve months preceding the Closing
Date, there has not been any delinquency in excess of 30 days with respect to
such Mortgage Loan.
(6) Equity Participation or Participation Interest. Such
Mortgage Loan contains no equity participation by the Seller and is a whole loan
and not a participation interest. Neither the related Note nor the related
Mortgage provides for negative amortization, unless the Mortgage Loan is an ARD
loan, or any contingent or additional interest in the form of participation in
the cash flow of the related Mortgaged Property. The Seller has no ownership
interest in such Mortgaged Property or the related Borrower other than in such
Mortgage Loan being sold and assigned. Neither the Seller nor any affiliate of
the Seller has any obligation to make any capital contributions to the related
Borrower under the Mortgage or any other related Mortgage Loan document.
(7) Compliance with Applicable Laws. As of the date of its
origination, such Mortgage Loan either complied with, or was exempt from,
applicable federal or state laws, regulations and other requirements pertaining
to usury. To the best of the Seller's knowledge, as of the date of origination
of such Mortgage Loan, the related originator complied in all material respects
with the requirements of any and all other federal, state or local laws
applicable to the origination, servicing and collection of such Mortgage Loan.
No governmental or regulatory approval or consent is required for the sale of
such Mortgage Loan by the Seller, and the Seller has full right, power and
authority to sell such Mortgage Loan. To the extent necessary to ensure the
enforceability of such Mortgage Loan and the effective sale, transfer and
assignment thereof and of the related Mortgage Note, the originator and/or the
Seller and, if applicable, each subsequent holder of the related Mortgage Note
each was qualified and appropriately licensed to transact business in the
jurisdiction in which the related Mortgaged Property is located at the time such
entity had possession of the related Mortgage Note.
(8) Proceeds Fully Disbursed. The proceeds of such Mortgage
Loan have been fully disbursed (although certain reserve accounts controlled by
the Seller may have been established as described in Schedule C-2, and there is
no requirement for future advances thereunder.
(9) Origination Expenses Paid. All costs, fees and expenses
incurred in connection with the origination and closing of such Mortgage Loan,
including, without limitation, recording costs and fees, have been paid to the
appropriate person or arrangements have been made for their payment to the
appropriate person on a timely basis by the related Borrower.
(10) Documents Valid. Each of the related Mortgage Note, the
related Mortgage and any other related Mortgage Loan document is the legal,
valid and binding
M-3-22
<PAGE> 570
obligation of the related Borrower, the related guarantor or other party
executing such document (subject to any non-recourse or partial recourse
provisions contained therein), and is enforceable in accordance with its terms.
There is no valid offset, defense, counterclaim or right of rescission with
respect to such Mortgage Note, Mortgage or any other Mortgage Loan document, nor
will the operation of any of the terms of such Mortgage Note or Mortgage, or the
exercise of any right thereunder, render either such Mortgage Note or Mortgage
unenforceable or subject to any valid offset, defense, counterclaim or right of
rescission, including, without limitation, the defense of usury, and the Seller
has no knowledge that any such offset, defense, counterclaim, or right of
rescission has been asserted or is available with respect thereto. Except as
described in the immediately following sentence, the related Mortgage Note and
the related Mortgage do not require the related mortgagee to release any portion
of the related Mortgaged Property except upon payment in full of such Mortgage
Loan or the exercise of a defeasance feature. In the case of certain Mortgaged
Properties securing cross-collateralized Mortgage Loans, certain Mortgage Loans
secured by multiple Mortgaged Properties, and certain Mortgage Loans secured by
one or more parcels constituting a single Mortgaged Property, the related
mortgagee may be required to release a Mortgaged Property or a portion thereof
upon payment of a portion of the related Mortgage Loan as specified in the
related Mortgage Loan documents.
(11) Assignment of Mortgage; Note Endorsement. The related
Assignment of Mortgage (but for the insertion of the name of the assignee and
any related recording information which is not yet available to the Seller) is
or will be in recordable form and constitutes or will constitute the Seller's
legal, valid and binding assignment to the Purchaser of the related Mortgage and
any related Assignment of Leases or assignment of Assignment of Leases. The
Seller's endorsement and delivery of the related Mortgage Note to the Purchaser
in accordance with the terms of this Agreement constitutes or will constitute
the Seller's legal, valid and binding assignment to the Purchaser of such
Mortgage Note, and together with the Seller's execution and delivery of such
Assignment of Mortgage to the Purchaser, legally and validly conveys or will
convey all right, title and interest of the Seller in such Mortgage Loan to the
Purchaser. Neither the related Mortgage Note nor the related Mortgage contain
provisions limiting the right or ability of Seller to assign, transfer and
convey such documents.
(12) Assignment of Leases. There exists as part of the related
Mortgage File an Assignment of Leases (either as a separate instrument or
incorporated into the related Mortgage); and such Assignment of Leases creates
in favor of the holder, a valid, perfected and (subject to the exceptions set
forth in paragraph 13 below) enforceable lien of the same priority as the
related Mortgage, in the property and rights described therein;
(13) First Lien. The related Mortgage is a legal, valid and
enforceable first lien on the related Mortgaged Property (including all
buildings and improvements on such Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time prior to the closing date of such Mortgage Loan with respect to
the foregoing, but excluding any related personal property) which Mortgaged
Property is free and clear of all liens and encumbrances having priority over or
equal to the first lien of such Mortgage, except for (a) the lien of current
real estate taxes and special assessments not yet delinquent or accruing
interest or penalties, (b) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of recording of
such Mortgage which do not
M-3-23
<PAGE> 571
materially and adversely (i) affect the value of such Mortgaged Property as
security for such Mortgage Loan, or (ii) interfere with the related Borrower's
ability to make required interest and principal payments or to make use of such
Mortgaged Property for the intended purposes therefor, (c) leases and subleases
pertaining to such Mortgaged Property which the Seller did not require to be
subordinated to the lien of such Mortgage (provided that such leases and
subleases, if any, are with entities which are not affiliated with the Seller),
and (d) other matters which do not, individually or in the aggregate, materially
and adversely (i) affect the value of such Mortgaged Property as security for
such Mortgage Loan, or (ii) interfere with the related Borrower's ability to
make required principal and interest payments or to make use of such Mortgaged
Property for the intended purposes therefor. Subject to the foregoing
exceptions, the related Assignment of Leases has the same priority as the
related Mortgage.
(14) No Modification, Release or Satisfaction. Except by a
written instrument which has been delivered to the Purchaser or its designee as
a part of the related Mortgage File, (a) neither the related Note nor the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File, none of which alter the information on the Mortgage
Loan Schedule or make any of the other representations in this Agreement untrue)
has been impaired, waived, modified, altered, satisfied, canceled or
subordinated or rescinded, (b) the related Mortgaged Property has not been
released from the lien of such Mortgage and (c) the related Borrower has not
been released from its obligations under such Mortgage, in whole or in any part,
in each such event in a manner which would materially interfere with the
benefits of the security intended to be provided by such Mortgage.
(15) Defeasance. A Mortgage Loan which permits defeasance
provides that, no earlier than the second anniversary of the Closing Date (or,
in the case of any Mortgage Loan included in its own Loan REMIC, no earlier than
the second anniversary of the "startup day" of such Loan REMIC), the related
Borrower may obtain the release of all or a portion of the related Mortgaged
Property from the lien of the related Mortgage upon the pledge to the Trustee of
non-callable U.S. Treasury or other non-callable U.S. government obligations
that provide for payments on or prior to all successive payment dates to
maturity (or, in the case of an ARD Loan, through the related Anticipated
Repayment Date) in the amounts due on such dates and upon the satisfaction of
certain other conditions. A Mortgage Loan that permits defeasance provides that
related Borrower is responsible for all reasonable costs incurred in connection
with the defeasance of any such Mortgage Loan and the release of the related
Mortgaged Property. A Mortgage Loan that permits defeasance provides that the
related Borrower is responsible for all cots incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgage
Property. A Mortgage Loan that permits defeasance requires that a first priority
perfected security interest opinion be provided and also requires the related
Borrower to provide either a REMIC opinion, as a condition to exercise of any
defeasance option or a written confirmation from the Rating Agencies indicating
that such defeasance will not result in a reduction, withdrawal or qualification
of the respective ratings of any outstanding Classes of Certificates. For all
loans with a Cut-off Date Balance over $5,000,000, as a condition to the
exercise of any defeasance option, either rating agency confirmation or lender
approval is required. In addition, the related Mortgage or other related
Mortgage Loan documents generally require the satisfaction of one or more of the
following conditions prior to the defeasance of the Mortgage Loan and release of
the related Mortgaged Property:
M-3-24
<PAGE> 572
(a) the related Borrower must provide the mortgagee
with a prior written notice of not less than 30 days;
(b) the related Borrower must either (i) deliver to
the mortgagee or the servicer of the Mortgage Loan, as the case may be,
government obligations described above in this Paragraph 15 or (ii) pay
to the mortgagee or the servicer of the Mortgage Loan, as the case may
be, an amount sufficient to purchase the government obligations
described above in this Paragraph 15;
(c) the related Borrower must deliver an officer's
certificate to the effect that all of its obligations with respect to
the Mortgage Loan have been satisfied and that the Mortgage Loan is not
in default; and
(d) the related Borrower must undertake to provide
such other documents or information as the mortgagee may reasonably
request in connection with such defeasance.
(16) No Delinquent Taxes or Assessments. All tax or
governmental assessments, or installments thereof, which were due on or prior to
the date of origination had been paid as of such date and the Seller knows of no
tax or governmental assessment, or if payable in installments, any installment
thereof, which became due and owing thereafter and prior to the Closing Date in
respect of the related Mortgaged Property, which, if left unpaid, would be, or
might become, a lien on such Mortgaged Property having priority over the related
Mortgage which has become delinquent such that (a) such tax, assessment or
installment has commenced to accrue interest or penalties, or (b) the applicable
taxing authority may commence proceedings to collect such tax, assessment or
installment, as applicable.
(17) Escrow or Reserve Deposits. As of the Closing Date, the
related reserve account(s), if any, contain all escrow deposits and other
payments required by the terms of the related Mortgage Loan documents (inclusive
of any applicable grace or cure period) to be held by the Seller as of the
Closing Date. Pursuant to Section 2 hereof, the Seller is transferring all
amounts on deposit in the related reserve account(s) to the Purchaser, or to the
extent not being transferred to the Purchaser, all escrow deposits and other
payments required under the related Mortgage Note, the related Mortgage and any
other related Mortgage Loan documents have been applied in accordance with their
intended purposes by the related Mortgage Loan originator, the Seller or its
agent.
(18) No Third Party Advances. The Seller has not, directly or
indirectly, (a) advanced funds, (b) induced or solicited any payment from a
Person other than the related Borrower, or (c) to the Seller's knowledge,
received any payment other than from such Borrower, for the payment of any
amount required under the related Mortgage Note or the related Mortgage, except
for interest accruing from the date of such Mortgage Note or the date of
disbursement of the proceeds of such Mortgage Loan, whichever is later, to the
date which precedes by 30 days the first Due Date under such Mortgage Note.
(19) No Condemnation or Damages. To the best of the Seller's
knowledge, no proceedings for the total or partial condemnation of the related
Mortgaged Property (a) have
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<PAGE> 573
occurred since the date as of which the appraisal relied upon in the origination
of such Mortgage Loan was prepared, or (b) are pending or threatened other than,
in each such case, proceedings as to partial condemnation which do not
materially and adversely affect the value of such Mortgaged Property as security
for such Mortgage Loan. To the best of Seller's knowledge, the related Mortgaged
Property is free of material damage. The related Mortgage requires that any
related condemnation award and/or insurance proceeds be applied either to the
restoration of the related Mortgaged Property or to the payment of the
outstanding principal balance of or accrued interest on such Mortgage Loan.
(20) No Mechanics' Liens. To the Seller's knowledge, the
related Mortgaged Property (excluding any related personal property) (a) is free
and clear of any mechanics' and materialmen's liens or liens in the nature
thereof, and (b) no rights are outstanding that, under applicable law, could
give rise to any of these types of liens, any of which liens are or may be prior
to, or equal with, the lien of the related Mortgage, except, with respect to
clauses (a) and (b) above in this Paragraph 20, those which are insured against
by the related lender's title insurance policy referred to in Paragraph 24 of
this Exhibit C below.
(21) Title Survey: Improvements; Separate Tax Parcels. The
Seller has delivered an as-built survey, a survey recertification, a site plan,
a recorded plat or the like with respect to the related Mortgaged Property which
satisfied, or the Seller otherwise satisfied, the requirements of the related
title insurance company for deletion of the standard general exceptions for
encroachments, boundary and other survey matters and for easements not shown by
the public records from the related title insurance policy, except with respect
to any related Mortgaged Property located in a jurisdiction (such as the State
of Texas where survey title insurance coverage is prohibited by law) in which
the exception for easements not shown by the public records could not be deleted
and such standard general exception is customarily accepted by prudent
commercial mortgage lenders in such jurisdiction. The property described in the
survey is the same as the Mortgaged Property described in the Mortgage and the
lender's title insurance policy. Except for encroachments and similar matters
which are inconsequential, do not materially and adversely affect the value of
such Mortgaged Property as security for such Mortgage Loan, or are insured
against by the related lender's title insurance policy described in Paragraph 24
of this Exhibit C below, surveys and/or title insurance obtained at the time of
the origination of such Mortgage Loan indicated or insured that (a) none of the
improvements which were included for the purpose of determining the appraised
value of such Mortgaged Property in the related appraisal obtained in connection
with of the origination of such Mortgage Loan lie outside the boundaries and
building restriction lines of such Mortgaged Property, and (b) no improvements
on adjoining properties encroach upon such Mortgaged Property. The related
Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related lender's title insurance policy. No
one other than the related Borrower, any guarantor or indemnitor, any tenants
under the requirements of tenant leases or (if it escrows real estate taxes) the
related mortgagee is obligated under the related Mortgage Loan documents to pay
real estate taxes on the Mortgaged Property.
(22) Title. The Seller has good and marketable title to and is
the sole and lawful owner and beneficial holder of such Mortgage Loan. The
Seller has full power, authority and legal right to sell and assign such
Mortgage Loan hereunder, is the sole mortgagee or beneficiary of record under
the related Mortgage and is transferring such Mortgage Loan to the
M-3-26
<PAGE> 574
Purchaser free and clear of any and all liens, encumbrances, participation
interests, pledges, charges or security interests of any nature encumbering such
Mortgage Loan.
(23) Compliance with Laws. To the best of the Seller's
knowledge (based upon a letter or letters from governmental authorities, a legal
opinion, an endorsement or endorsements to the related title insurance policy, a
representation of the related Borrower at the time of origination of such
Mortgage Loan or other information reasonably acceptable to the Seller based on
the Seller's underwriting standards at the time of its origination thereof), (a)
no improvements located on or forming a part of the related Mortgaged Property
are in violation of any applicable zoning and building laws or ordinances, (b)
the related Mortgaged Property complies with all other laws and regulations
pertaining to the use and occupancy thereof (excluding Environmental Laws which
are addressed in Paragraph 35 and Paragraph 36 below) and all applicable
insurance requirements, (c) such Borrower has obtained all inspections,
licenses, permits, authorizations, and certificates necessary for such
compliance, including, but not limited to, certificates of occupancy (if
available), and (d) the Seller has not received notification from any
governmental authority that such Mortgaged Property violates or does not comply
with such laws or regulations or is being used, operated or occupied unlawfully
or that such Borrower has failed to obtain such inspections, licenses, permits,
authorizations, or certificates, except for such violation or non-compliance (i)
which does not materially and adversely affect the value of such Mortgaged
Property as security for such Mortgage Loan or the use for which such Mortgaged
Property was intended at the time of origination of such Mortgage Loan, (ii)
which is specifically addressed by the appraiser in the determination of the
related appraised value in connection with the origination of such Mortgage
Loan, or (iii) for which a reserve account held for the Seller has been
established in an amount sufficient to pay for the estimated costs to correct
such violations or non-compliance.
(24) Title Insurance. The lien of the related Mortgage is
insured by an ALTA lender's title insurance policy or, if an ALTA lender's title
insurance policy is unavailable, another state-approved form of lender's title
insurance policy issued in an amount not less than the stated principal amount
of such Mortgage Loan (after all advances of principal) insuring the Seller and
its successors and assigns that the related Mortgage is a valid first lien on
the related Mortgaged Property, subject only to exceptions described in
Paragraph 13 of this Exhibit C above (or, if such a title insurance policy has
not yet been issued in respect of such Mortgage Loan, such a policy will be
issued and is currently evidenced by a pro forma or specimen policy or by a
"marked-up" commitment for title insurance which was furnished by the related
title insurance company for purposes of closing such Mortgage Loan). The premium
for such title insurance policy has been paid in full and such title insurance
policy is (or, when issued, will be) in full force and effect, and upon
endorsement and delivery of the related Mortgage Note to the Purchaser and
recording of the related Assignment of Mortgage in favor of the Purchaser in the
applicable real estate records, such title insurance policy will inure to the
benefit of the Purchaser. Such title insurance policy (a) does not contain the
standard general exceptions for encroachments, boundary or other survey matters
and for easements not shown by the public records, other than matters which do
not materially and adversely (i) affect the value of the related Mortgaged
Property as security for the Mortgage Loan, or (ii) interfere with the related
Borrower's ability to make required principal and interest payments or to make
use of such Mortgaged Property for the intended purposes, and (b) only contains
such exceptions for encroachments, boundary and other survey matters as are
customarily accepted by prudent
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<PAGE> 575
commercial mortgage lenders. The Seller and its agents have not taken, or failed
to take, any action that would materially impair the coverage benefits of any
such title insurance policy. The Seller has not made any claim under such title
insurance policy.
(25) Insurance Related to Mortgaged Property. All improvements
on the related Mortgaged Property are insured by (a) a fire and extended perils
insurance policy providing coverage on a full replacement cost basis in an
amount not less than the lesser of (i) the full replacement cost of all
improvements to such Mortgaged Property (without deduction for depreciation),
and (ii) the outstanding principal balance of such Mortgage Loan, but in any
event in an amount sufficient to avoid the operation of any co-insurance
provisions contained in such insurance policy, which policy contains a standard
mortgagee clause naming the originator or the Seller and its successors as
additional insureds; (b) an insurance policy providing business interruption or
rental continuation coverage in an amount not less than the income anticipated
from 12 months of operations of such Mortgaged Property; (c) a comprehensive
general liability insurance policy in an amount not less than $1,000,000 per
occurrence; and (d) if any material improvement on such Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards under the National Flood Insurance Act of 1968, as
amended, a flood insurance policy providing coverage in an amount not less than
the lesser of (i) the stated principal amount of the related Mortgage Note, and
(ii) the maximum amount of insurance available under the Flood Disaster
Protection Act of 1973, as amended. As of the Closing Date, the insurance
premium for each such insurance policy shall have been paid or escrowed. Each
such insurance policy contains a clause providing that it is not terminable and
may not be reduced without 30 days' prior written notice to the mortgagee
(except that, in the event of nonpayment of insurance premiums, each such
insurance policy provides for termination upon not less than 10 days' prior
written notice), and no such notice has been received by the Seller. With
respect to each such insurance policy, the Seller has received a certificate of
insurance or similar document dated within the last 12 months to the effect that
such insurance policy is in full force and effect. The Seller has no knowledge
of any action, omission, misrepresentation, negligence or fraud which would
result in the failure of any such insurance policy. The related Mortgage Loan
documents require the related Borrower or a tenant of such Borrower to maintain
each such insurance policy at its expense, but authorizes the mortgagee to
maintain any such insurance policy at the related Borrower's expense upon such
Borrower's or such tenant's failure to do so (subject to any applicable notice
or cure periods). The related Mortgage and insurance policy require that any
related insurance proceeds, in excess of a specified amount, will be applied
either to the repair or restoration of all or part of the related Mortgaged
Property or to the payment of the outstanding principal balance of or accrued
interest on such Mortgage Loan.
(26) UCC Financing Statements. One or more Uniform Commercial
Code financing statements covering all furniture, fixtures, equipment and other
personal property (a) which are collateral under the related Mortgage or under a
security or similar agreement executed and delivered in connection with such
Mortgage Loan, and (b) in which a security interest can be perfected by the
filing of Uniform Commercial Code financing statement(s) under applicable law,
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law a security interest in such furniture,
fixtures, equipment and other personal property.
M-3-28
<PAGE> 576
(27) Default, Breach and Acceleration. There is no material
default, breach, violation or event of acceleration existing under the related
loan agreement, related Mortgage Note or the related Mortgage, and the Seller
has no knowledge of any event (other than failure to make payments due but not
yet delinquent) 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 thereunder; provided that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that pertains to or arises out of the subject matter
otherwise covered by any other representation and warranty made by the Seller in
this Exhibit C. The Seller has no knowledge, after performing at the time of
origination of the related Mortgage Loan due diligence customarily performed by
prudent commercial lenders at the time of such origination, that the related
Borrower is a debtor in any state or federal bankruptcy or insolvency
proceeding.
(28) Customary Provisions. The related Mortgage Note, the
related Mortgage, and the related Assignment of Leases, together with applicable
state law, contain customary and enforceable provisions (including, without
limitation, those relating to receivers) such as to render the rights and
remedies of the holder thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby, including realization by judicial or, if
applicable, non-judicial foreclosure.
(29) Access Routes. (a) Surveys, title insurance reports, the
title insurance policy or other relevant documents contained in the related
Mortgage File indicate that at the time of origination of such Mortgage Loan the
related Borrower had sufficient rights with respect to amenities, ingress and
egress and similar matters identified in the appraisal of the related Mortgaged
Property obtained in connection with the origination of such Mortgage Loan, as
being critical to the appraised value thereof, and (b) such Mortgaged Property
was receiving services from public or private water, sewer and other utilities
that were adequate as of the date that the Mortgage Loan was originated, and
none of such services is subject to revocation as a result of a foreclosure or
change in ownership of an adjacent property.
(30) Mortgage Loans Secured by Ground Lease but Not Fee
Interest. With respect to each Mortgage Loan that is secured in whole or in part
by the interest of the related Borrower as lessee under a ground lease of all or
a portion of the related Mortgaged Property (a "Ground Lease"), but the related
fee interest in the portion of such Mortgaged Property covered by such Ground
Lease (the "Fee Interest") is not subject or subordinate to the lien of the
related Mortgage, the Seller hereby represents and warrants that:
(a) as of the Closing Date, such Ground Lease is in
full force and effect, and such Ground Lease or a memorandum thereof
has been duly recorded in the applicable real estate records and (i)
such Ground Lease (or the related estoppel letter or lender protection
agreement between the Seller and related lessor) does not prohibit the
interest of the related lessee thereunder from being encumbered by the
related Mortgage and does not restrict the use of the related Mortgaged
Property of such lessee in a manner that would interfere with the
related Borrower's ability to make required principal and interest
payments or to make use of such Mortgaged Property for the intended
purposes, or a separate written agreement permitting such encumbrance
has been obtained, and (ii) there have been no material changes in the
terms of such Ground Lease that would be
M-3-29
<PAGE> 577
binding on the mortgagee as successor to the lessee except as set forth
in written instruments which are part of the related Mortgage File;
(b) the related lessee's leasehold interest in the
portion of the related Mortgaged Property covered by such Ground Lease
is not subject to any liens or encumbrances securing indebtedness which
are superior to, or of equal priority with, the related Mortgage,
except for liens of current real estate taxes and special assessments
not yet delinquent or accruing interest or penalties;
(c) the related lessee's interest in such Ground
Lease may be transferred to the Purchaser and its successors and
assigns through a foreclosure of the related Mortgage or conveyance in
lieu of foreclosure and, thereafter, may be transferred to another
Person by the related mortgagee and its successors and assigns, upon
notice to, but without the consent of, the related lessor (or, if any
such consent is required, either (i) it has been obtained prior to the
Closing Date, or (ii) it may not be unreasonably withheld), provided
that such Ground Lease has not been terminated and all amounts owed
thereunder have been paid;
(d) the related lessor is required to give notice of
any default under such Ground Lease by the related lessee to the
mortgagee either under the terms of such Ground Lease or under the
terms of a separate estoppel letter or written agreement;
(e) the related mortgagee is entitled, under the
terms of such Ground Lease or a separate estoppel letter or written
agreement, to receive notice of any default by the related lessee under
such Ground Lease, and after any default notice, is entitled to not
less than the time provided to the related lessee under such Ground
Lease to cure such default (which is, in any event, a commercially
reasonable time period), which is curable during such period before the
lessor may terminate the Ground Lease; all rights of the related lessee
under the Ground Lease may be exercised by or on behalf of the
mortgagee;
(f) the currently effective term of such Ground Lease
(excluding any extension or renewal which is not binding on the lessor
thereunder) extends not less than 20 years beyond the Stated Maturity
Date of such Mortgage Loan;
(g) such Ground Lease does not impose any
restrictions on subletting which the Seller considered to be
commercially unreasonable at the time of its origination or purchase of
such Mortgage Loan or that a prudent commercial mortgage lender would
have considered unreasonable at such date;
(h) as of the Closing Date, (i) no event of default
has occurred under such Ground Lease and (ii) to Seller's knowledge, no
event has occurred which, with the passage of time, the giving of
notice or both (other than rental or other payments being due, but not
yet delinquent), would result in a default or an event of default under
the terms of such Ground Lease;
(i) the related lessor has agreed in a writing
included in the related Mortgage File that such Ground Lease may not be
amended, modified, cancelled or
M-3-30
<PAGE> 578
terminated without the prior written consent of the Seller or the
mortgagee and that any such action without such consent is not binding
upon the mortgagee, its successors and assigns. Unless the mortgagee
fails to cure a default of the lessee under the Ground Lease following
notice thereof from the lessor as set forth in clause (e) of this
Paragraph 30, the lessor is required to enter into a new ground lease
upon termination of such Ground Lease for any reason (including,
without limitation, rejection of such Ground Lease in a bankruptcy
proceeding);
(j) under the terms of such Ground Lease and the
related Mortgage, taken together, any related insurance proceeds or
condemnation award (other than in respect of a total or substantially
total loss or taking) will be applied either to (i) the repair or
restoration of all or part of the related Mortgaged Property covered by
such Ground Lease, with the mortgagee or a trustee appointed by it
having the right to hold and disburse such proceeds as such repair or
restoration progresses (except where such Mortgage Loan provides that
the related Borrower or its agent may hold and disburse such proceeds
with respect to any loss or taking less than a stipulated amount not
greater than $50,000), or (ii) the payment of the outstanding principal
balance of and accrued interest on such Mortgage Loan; and
(k) there are no existing mortgages on the Fee
Interest which can be foreclosed upon that are not subject to the
Ground Lease, and the provisions of the Ground Lease and/or other
documents related thereto and included as part of the related Mortgage
File preclude the creation of any future mortgage on the Fee Interest
that can be foreclosed upon not subject to the Ground Lease.
(l) except for fixed or determinable increases
expressly set forth in such Ground Lease, such Ground Lease does not
permit any increase in the amount of rent payable by the ground lessee
during the term of the Mortgage Loan.
(m) the terms of any related Ground Lease have not
been waived, modified, altered, satisfied, impaired, cancelled,
subordinated, or rescinded in any manner which materially interferes
with the security intended to be provided by the related Mortgage.
(31) Deed of Trust. With respect to any related Mortgage that
is a deed of trust or trust deed, a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with applicable law. Except in connection with
(a) a trustee's sale after default by the related Borrower or (b) the release of
the related Mortgaged Property following the payment of the related Mortgage
Loan in full, no fees or expenses are payable by the Seller or the Purchaser to
such trustee.
(32) Cross-Security. The related Mortgaged Property is not
collateral or security for the payment or performance of (a) any other
obligations owed to the originator of such Mortgage Loan or the Seller other
than another Mortgage Loan being sold, transferred and assigned by the Seller
under this Agreement, or (b) to the Seller's knowledge, any other obligations
owed to any Person other than the Seller. The related Mortgage Note is not
secured by any real property other than a Mortgaged Property. Each related
Mortgage does not provide
M-3-31
<PAGE> 579
or permit, without the prior written consent of the holder of the Mortgage Note,
each related Mortgaged Property to secure any other promissory note or
obligation, other than any other Mortgage Loan.
(33) Assignment of Leases. Except with respect to the related
Mortgaged Property or that portion of the related Mortgaged Property that is
occupied by the related Borrower, the related Mortgage Loan documents contain
the provisions of an Assignment of Leases or include a separate Assignment of
Leases. Any related Assignment of Leases incorporated within the related
Mortgage or set forth in a separate Mortgage Loan document creates on
recordation (with the same priority as the related Mortgage) a valid assignment
of, or security interest in, the right to receive all payments due under the
related leases, if any.
(34) REMIC. (a) Such Mortgage Loan is principally secured by
an interest in real property and either (i) the fair market value of such real
property was at least equal to 80% of the adjusted issue price of such Mortgage
Loan on the date of origination of such Mortgage Loan or, if such Mortgage Loan
has been "significantly modified" within the meaning of Section 1001 of the
Code, on the date of such modification (unless such modification may be
disregarded under Treas. Reg. Sec. 1.860G-2(b)(3)), or (ii) substantially all of
the proceeds of such Mortgage Loan were used to acquire or improve or protect an
interest in real property that, at origination of such Mortgage Loan, was the
only security for such Mortgage Loan; (b) such Mortgage Loan contains no equity
participation by the Seller, and neither the related Mortgage Note nor the
related Mortgage provides for any contingent or additional interest in the form
of participation in the cash flow or proceeds realized on disposition of the
related Mortgaged Property; and (c) such Mortgage Loan is a "qualified mortgage"
as defined in, and for purposes of, Section 860G(3)(A) of the Code and provides
for the payments of interest at a fixed rate or at a rate described in Treas.
Reg. Sec. 1.860G-1(a)(3).
(35) Environmental Site Assessments. Environmental Site
Assessments (collectively, the "ESAs"), transaction screen assessments, studies
or updates prepared or obtained within [ ] months prior to the Closing Date in
connection with the origination of such Mortgage Loan identified no material
adverse environmental conditions or circumstances anticipated to require any
material expenditure with respect to any Mortgaged Property, except for: (a)
those cases where such conditions or circumstances were investigated further
and, based upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation; (b) those cases
in which an operations and maintenance plan was recommended by the environmental
consultant and such plan was obtained or an escrow reserve established to cover
the estimated costs of obtaining such plan; (c) those conditions in which soil
or groundwater contamination was suspected or identified and either (i) such
condition or circumstance was remediated or abated prior to the date of closing
of the related Mortgage Loan, (ii) a "no further action" letter was obtained
from the applicable regulatory authority, or (iii) either an environmental
insurance policy was obtained, a letter of credit provided, an escrow reserve
account established, or an indemnity from the responsible party was obtained, to
cover the estimated costs of any required investigation, testing, monitoring or
remediation; or (d) those cases in which (i) a leaking underground storage tank
or groundwater contamination was identified to be located on or to have
originated from an offsite property, (ii) a responsible party has been
identified under applicable law, and (iii) either such condition is not known to
have affected the Mortgaged Property or the responsible party has either
received a "no
M-3-32
<PAGE> 580
further action" letter from the applicable regulatory agency, established a
remediation fund, or provided a guaranty or indemnity to the related Borrower.
(36) Notice of Environmental Problem. Other than with respect
to any conditions identified in the ESAs, transaction screen assessments,
studies or updates referred to in Paragraph 34 of this Exhibit C above, the
Seller: (a) has not received actual notice from any federal, state or other
governmental authority of (i) any failure of the related Mortgaged Property to
comply with any applicable Environmental Laws, or (ii) any known or threatened
release of Hazardous Materials on or from such Mortgaged Property in violation
of any applicable Environmental Laws; (b) has not received actual notice from
the related Borrower that (i) such Borrower has received any such notice from
any such governmental authority, (ii) such Mortgaged Property fails to comply
with any applicable Environmental Laws, or (iii) such Borrower has received
actual notice that there is any known or threatened release of Hazardous
Materials on or from such Mortgaged Property in violation of any applicable
Environmental Laws; or (c) has no actual knowledge that (i) the related
Mortgaged Property fails to materially comply with any applicable Environmental
Laws or (ii) there has been any known or threatened release of Hazardous
Materials on or from such Mortgaged Property where such release falls outside
the exceptions (a) through (d) of Paragraph 35 of this Exhibit C above.
(37) Recourse. The related Mortgage Loan documents contain
standard provisions providing for recourse against the related Borrower or a
principal of such Borrower for damages sustained in connection with the
Borrower's fraud, material misrepresentation or misappropriation of any tenant
security deposits, rent, insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Borrower or a principal of such Borrower has agreed to indemnify the mortgagee
for damages resulting from violations of any applicable Environmental Laws.
(38) Environmental Compliance. Each Mortgage Loan contains
either a representation, warranty or covenant that the related Borrower will not
use, cause or permit to exist on the related Mortgaged Property any Hazardous
Materials in violation of any applicable Environmental Laws or an indemnity with
respect to any such violation in favor of the Seller.
(39) Inspection. The Seller or originator has inspected the
related Mortgaged Property or caused such Mortgaged Property to be inspected
within the 12 months preceding the Closing Date.
(40) Subordinate Debt. Except as has been disclosed in the
Mortgage Loan Schedule, the related Mortgage contains a provision for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan in the event that the related Borrower encumbers the related Mortgaged
Property without the prior written consent of the mortgagee thereunder. At the
time of origination, the Mortgaged properties were not, and to the Seller's
knowledge, the Mortgaged Properties are not encumbered by any liens junior to
the liens of the related Mortgages. The Mortgage Loans do not permit the
Borrowers to obtain financing secured by the Mortgaged Properties that is
subordinate to or of equal priority with the lien of the Mortgage without
lender's consent.
M-3-33
<PAGE> 581
(41) Common Ownership. To Seller's knowledge, no two
properties securing Mortgage Loans are directly or indirectly under common
ownership except to the extent that such common ownership and the ownership
structure have been specifically disclosed in Schedule C-3.
(42) Operating or Financial Statement. The related Mortgage
Loan documents require the related Borrower to furnish to the mortgagee at least
annually an operating statement (or a balance sheet and a statement of income
and expenses) with respect to the related Mortgaged Property or, in the case of
a borrower-occupied Mortgaged Property, a financial statement with respect to
the related Borrower.
(43) Litigation. To the best of the Seller's knowledge as of
the date of origination or purchase of such Mortgage Loan, and to the Seller's
knowledge thereafter, there is no pending action, suit, proceeding, arbitration
or governmental investigation with respect to the related Borrower or Mortgaged
Property which if determined adversely to the related Borrower would have a
material adverse effect on the value of the related Mortgaged Property or such
Borrower's ability to continue to perform its obligations under such Mortgage
Loan.
(44) ARD Loans. With respect to each Mortgage Loan that is an
ARD Loan, it commenced amortizing on its initial scheduled Due Date (or, in the
case of certain interest-only Mortgage Loans, as otherwise set forth in the
related Mortgage Notes) and provides that: (a) the spread used in calculating
its Mortgage Rate will increase by no more than five percent (5%) in connection
with the passage of its Anticipated Repayment Date; (b) its Anticipated
Repayment Date is of the term specified [in the Mortgage Loan Schedule]
following the origination of such Mortgage Loan; (c) no later than the related
Anticipated Repayment Date, if it has not previously done so, the related
Borrower is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Servicer; and (d) any cash flow from the
related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (lender approved) capital expenditures.
(45) Due-on-Sale. The related Mortgage contains a
"due-on-sale" clause that provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the mortgagee, the related Mortgaged Property subject to such
Mortgage is directly or indirectly transferred or sold; provided that certain of
the Mortgages permit (a) changes in ownership between existing partners and
members, (b) transfers to family members (or trusts for the benefit of family
members), affiliated companies and certain specified individuals and entities,
(c) issuance by the related borrower of new partnership or membership interests,
(d) certain other changes in ownership for estate planning purposes, or (e)
certain other transfers similar in nature to the foregoing that are consistent
with customary commercial lending practices.
(46) Loan Origination; Loan Underwriting. Each Mortgage Loan
was originated by the Seller, an affiliate of Seller or an originator approved
by the Seller, or was purchased by the related Seller, and each Mortgage Loan
substantially complied with all of the terms, conditions and requirements of the
Seller's underwriting standards in effect at the time of
M-3-34
<PAGE> 582
its origination or purchase of such Mortgage Loan, subject to such exceptions as
the Seller approved.
(47) Interest Accrual. Each related 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).
(48) Cut-off Date Balance. No Mortgage Loan, together with any
other Mortgage Loan made to the same Borrower or to an Affiliate of such
Borrower, represents more than 5% of the aggregate Cut-off Date Balance of the
Mortgage Pool.
(49) Due Date. The Due Date for each Mortgage Loan is
scheduled to be the first day of the month (or the following business day, if
such first day is not a business day).
(50) Appraisal. An appraisal of the related Mortgaged Property
was conducted in connection with the origination of such Mortgage Loan. 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.
(51) No Release. No Mortgage Loan has been satisfied in full,
and except as expressly contemplated by the related loan agreement or other
documents contained in the related file, no material portion of the Mortgaged
Property has been released.
---------------------------
Each representation and warranty of the Seller set forth in
this Exhibit C, to the extent related to the enforceability of any instrument,
agreement or other document or as to offsets, defenses, counterclaims or rights
of rescission related to such enforceability, is qualified to the extent that
(a) enforcement may be limited (i) by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally as from time to time in effect, (ii) by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and (iii) by any applicable anti-deficiency law or statute; and (b)
such instrument, agreement or other document may contain certain provisions
which may be unenforceable in accordance with their terms, in whole or in part,
but the unenforceability of such provisions will not (subject to the
qualification in clause (a) above) (i) cause the related Mortgage Note or the
related Mortgage to be void in their entirety, (ii) invalidate the related
Borrower's obligation to pay interest at the stated interest rate of such
Mortgage Note on, and repay the principal of, the related Mortgage Loan in
accordance with the payment terms of such Mortgage Note, such Mortgage and other
written agreements delivered to the Seller in connection therewith, (iii)
invalidate the obligation of any related guarantor to pay guaranteed obligations
with respect to interest at the stated interest rate of such Note on, and the
principal of, such Mortgage Loan in accordance with the payment terms of such
guarantor's
M-3-35
<PAGE> 583
written guaranty, (iv) impair the mortgagee's right to accelerate and demand
payment of interest at the stated interest rate of such Mortgage Note on, and
principal of, such Mortgage Loan upon the occurrence of a legally enforceable
default, or (v) impair the mortgagee's right to realize against the related
Mortgaged Property by judicial or, if applicable, non-judicial foreclosure.
M-3-36
<PAGE> 584
SCHEDULE C-1
EXCEPTIONS TO THE MORTGAGE LOAN
REPRESENTATIONS AND WARRANTIES
1. Representation #10. Loan #010-00000598 (Telex Building). Parcel "C" may be
released upon the satisfaction of the following conditions: (i) sixty (60)
days prior written notice; (ii) the remaining parcel has a debt service
coverage ratio of 1.25 to 1, (iii) the Borrower is not in default; and (iv)
the remaining parcel has a loan to value ratio less than .75 to 1. Borrower
does not have to pay off a portion of the Mortgage Loan in order to
facilitate such release. If all of the above conditions are met, Borrower
must post additional cash collateral and reserves unless the sole tenant
(Telex) meets certain financial criteria.
2. Representation #10. Loan #010-00000603 (Springville Corners). Borrower has
the right to obtain a release of surplus property without paying a portion
of the Mortgage Loan upon the satisfaction of the following conditions: (i)
legal subdivision; (ii) use of remaining property is unchanged; (iii) loan
to value ratio of the remaining property is no more than .75 to 1; and (iv)
adequate easements for access and utilities.
3. Representation #21. Because of their size, a survey was not required by the
originator for the following loans:
(a) Loan #010-00000470 (810-812 Fiero Lane)
(b) Loan #010-00000360 (350 Newton Avenue Apartments)
(c) Loan #010-00000533 (Checkmate Apartments)
(d) Loan #010-00000298 (Howard Johnson Lake Havasu)
(e) Loan #010-00000442 (Macy Building)
(f) Loan #010-00000325 (224-234 East Broad Street)
(g) Loan #010-00000219 (Black Mountain Point Office Building
(h) Loan #010-00000276 (PBR II)
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<PAGE> 585
(i) Loan #010-00000505 (Lovell Building)
(j) Loan #010-00000382 (188 State Street)
4. Representation #21, 24. Loan #010-00000382 (188 State Street). The survey
exceptions were not deleted from the title insurance policy.
5. Representation #21. Loan #010-00000623 (Yukon Holdings LLC). The Mortgaged
Property is not a separate tax parcel, as the separation could not be
completed prior to closing. However, an Agreement Regarding Non-Segregated
Tax Parcel was entered into by the Borrower at closing, in which the
Borrower has agreed to pay taxes with respect to the non-segregated tax
parcel until such time as the segregation is complete. A tax escrow was
established in the amount of $11,533.33 at closing. Borrower has until
November 1, 2001 to complete the separation.
6. Representation #25. The following loans are subject to co-insurance:
(a) Loan #010-00000219 (Black Mountain Point Office Building)
(b) Loan #010-00000259 (Woodstone Properties)
(c) Loan #010-00000501 (Ver-Sa-Til )
(d) Loan #010-00000522 (Solar Gardens)
7. Representation #25. Loan #010-00000561 (Kmart - Nashville) and Loan
#010-00000563 (Kmart - Savannah). Kmart is allowed to self-insure provided:
(i) the relevant Kmart lease is in full force and effect, has not been
modified without the Lender's prior written approval and Kmart is not in
default thereunder; (ii) the Borrower is not in default under its loan
documents with the Lender; and (iii) Kmart continues to provide evidence of
self-insurance at the levels in effect as of the date of the Loan closing
and Kmart pays any loss which should be covered under its self-insurance. On
the Kmart - Savannah loan, the Borrower has provided liability insurance.
8. Representation #30. Loan #020-00000030 (Tolt Towne Center). Two Hundred
Eighty-One (281) square feet of the mortgaged property, which is less than
one percent (1%) of the total mortgaged property, is subject to a ground
lease. The leased premises are adjacent to a loading dock and allows
delivery trucks to back into that area. The terms of the lease violate the
representation in the following ways: The terms of the Lease
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<PAGE> 586
SCHEDULE C-2
RESERVE ACCOUNTS CONTROLLED BY SELLER
<PAGE> 587
SCHEDULE C-3
PROPERTIES UNDER COMMON OWNERSHIP
<PAGE> 588
violate the representation as follows: (i) The terms of the Lease
do not require that any notice of default be given to the
mortgagee; (ii) The terms of the Lease do not provide for any
additional cure period in favor of mortgagee. The lease itself does
not specify any Lessor remedies or termination rights, although it
should be noted that a violation of the repair and maintenance
obligations or a failure to pay rent could permit the Lessor to
exercise whatever the Washington statutory and judicial remedies
are available. The Lease also states that its term is "perpetual,"
language more customarily found in an access, ingress and egress
easement than in a lease; (iii) No writing is contained in the
related Mortgage File requiring any Lender consent to a
modification, amendment, cancellation or termination of Lease and
there is no obligation on the part of the related lessor to enter
into a new or direct lease with the Lender in the event of a Lease
termination; (iv) There is no provision in the Lease addressing use
of casualty or condemnation proceeds; and (v) There is nothing in
the related Mortgage File addressing or confirming the existence or
absence of any mortgages on the Fee Interest.
M-3-39
<PAGE> 589
EXHIBIT D-1
FORM OF CERTIFICATE OF A SECRETARY
OR ASSISTANT SECRETARY OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C3
CERTIFICATE OF SECRETARY OF ARTESIA MORTGAGE CAPITAL CORPORATION
I, , hereby certify that I am a duly
appointed Secretary of Artesia Mortgage Capital Corporation, a Delaware
Corporation (the "Company"), and certify further as follows:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware;
2. Attached hereto as Exhibit A is a true, correct and
complete copy of the organizational documents of the Company, as in full force
and effect on the date hereof;
3. Attached hereto as Exhibit B is a certificate of the
Secretary of State of the State of Delaware issued within ten days of the date
hereof with respect to the good standing of the Company;
4. Since the date of the good standing certificate referred to
in clause 3 above, the Company has not received any notification from the
Secretary of State of Delaware, or from any other source, that the Company is
not in good standing in Delaware.
5. Attached hereto as Exhibit C are the resolutions of the
board of directors of the Company authorizing the transactions contemplated by
the Mortgage Loan Purchase Agreement dated as of December 12, 2000 (the
"Mortgage Loan Purchase Agreement"), between Salomon Brothers Mortgage
Securities VII, Inc. ("SBMS VII") and the Company, including the sale of the
subject mortgage loans (the "Mortgage Loans") by the Company to SBMS VII. Such
resolutions are in full force and effect on the date hereof and are not in
conflict with any other resolutions of the board of directors of the Company in
effect on the date hereof.
6. The Mortgage Loans do not constitute all or substantially
all of the assets of the Company.
7. To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Company are pending or contemplated.
8. Each person who, as an officer or representative of the
Company, signed (a) the Mortgage Loan Purchase Agreement, (b) the
Indemnification Agreement dated as of December 12, 2000 (the "Indemnification
Agreement"), among the Company, SBMS VII,
M-3-40
<PAGE> 590
Salomon Smith Barney Inc., Greenwich Capital Markets, Inc., Chase Securities
Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities Inc. and ABN AMRO
Bank N.V.; and (c) any other document or certificate delivered on or before the
date hereof in connection with the transactions contemplated by the foregoing
documents, was, at the respective times of such signing and delivery, and is as
of the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signature of such person appearing on any
such document is his or her genuine signature.
Capitalized terms used but not otherwise defined herein have
the respective meanings assigned to them in the Mortgage Loan Purchase Agreement
and, if not defined therein, then in the Indemnification Agreement.
[SIGNATURE PAGE FOLLOWS]
M-3-41
<PAGE> 591
IN WITNESS WHEREOF, I have hereunto signed my name as of
December , 2000.
By:
--------------------------------
Name:
Title:
The undersigned, an officer of the Company, hereby certifies
that is the duly elected and qualified and acting Secretary of the Company and
that the signature appearing above is his/her genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of
December , 2000.
By:
--------------------------------
Name:
Title:
M-3-42
<PAGE> 592
EXHIBIT A
CERTIFICATE OF INCORPORATION AND BY-LAWS
M-3-43
<PAGE> 593
EXHIBIT B
CERTIFICATE OF GOOD STANDING
M-3-44
<PAGE> 594
EXHIBIT C
RESOLUTIONS
M-3-45
<PAGE> 595
UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
ARTESIA MORTGAGE CAPITAL CORPORATION
WITHOUT A MEETING
The undersigned, being all the Directors of Artesia Mortgage
Capital Corporation, a Delaware corporation (the "Corporation"), pursuant to
Section 141 of the General Corporation Law of the State of Delaware, in lieu of
holding a meeting of the Board of Directors of the Corporation, do hereby
consent to the adoption of, and do hereby unanimously adopt, as of the date
hereof, the resolutions set forth below:
WHEREAS, the Corporation has from time to time originated or
acquired the various commercial mortgage loans identified on Schedule I attached
hereto (the "Mortgage Loans");
NOW, THEREFORE, IT IS RESOLVED, that the sale of Mortgage
Loans by the Corporation to Salomon Brothers Mortgage Securities VII, Inc.
("SBMS VII") (or, at the direction of SBMS VII, to a trust established by SBMS
VII), is hereby approved;
RESOLVED, that the President or any Vice President, other
officer or director of the Corporation is hereby authorized to negotiate,
execute and deliver, in the name and on behalf of the Corporation, such mortgage
loan purchase and sale agreement, pooling and servicing agreement and/or similar
agreements as may be necessary to effect the intent and purpose of the foregoing
resolutions, in such form as any such officers or directors deem necessary or
advisable;
RESOLVED, that the President or any Vice President, other
officer or director of the Corporation is hereby authorized and directed to pay
any and all expenses and fees arising in connection with the sale of the
Mortgage Loans or otherwise in connection with these resolutions;
RESOLVED, that the corporate seal of the Corporation may be
affixed to any instrument or document executed pursuant to the foregoing
resolutions by impressing or affixing such corporate seal thereon or by
imprinting or otherwise reproducing thereon a facsimile of such corporate seal;
RESOLVED, that the President or any Vice President, other
officer or director of the Corporation is hereby authorized and directed to
negotiate, execute and deliver, in the name and on behalf of the Corporation,
any and all additional instruments, documents, or agreements and to take such
further action as to any of them appears necessary or desirable to carry into
effect the intent and purpose of the foregoing resolutions; and
RESOLVED, that any and all actions of the officers or
directors of the Corporation in connection with the matters contemplated by the
foregoing resolutions taken prior to the date hereof, be, and hereby are,
approved, ratified and adopted in all respects as fully as if
M-3-46
<PAGE> 596
such actions had been presented to this Board of Directors for its approval
prior to such actions being taken.
This Unanimous Written Consent of the Board of Directors can
be executed in counterparts, each of which shall be deemed to be an original and
all such counterparts shall constitute one and the same instrument.
Dated: December , 2000
--------------------------- ---------------------------------
Name: Name:
--------------------------- ---------------------------------
Name: Name:
M-3-47
<PAGE> 597
SCHEDULE I
SEE ATTACHED LIST OF MORTGAGE LOANS
M-3-48
<PAGE> 598
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
SALOMON BROTHERS MORTGAGE SECURITIES VII, INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C3
CERTIFICATE OF ARTESIA MORTGAGE CAPITAL CORPORATION
In connection with the execution and delivery by Artesia
Mortgage Capital Corporation ("AMCC") of, and the consummation of the various
transactions contemplated by, that certain Mortgage Loan Purchase Agreement
dated as of December 12, 2000 (the "Mortgage Loan Purchase Agreement"), between
Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII") and AMCC, and the
Indemnification Agreement dated as of December 12, 2000 (the "Indemnification
Agreement"), among AMCC, SBMS VII, Salomon Smith Barney Inc., Greenwich Capital
Markets, Inc., Chase Securities Inc., Deutsche Bank Securities Inc., J.P. Morgan
Securities Inc. and ABN AMRO Bank N.V. (together, the Mortgage Loan Purchase
Agreement and the Indemnification Agreement are referred to herein as the
"Agreements"), the undersigned hereby certifies that (i) the representations and
warranties of AMCC in the Agreements are true and correct in all material
respects at and as of the date hereof (or, in the case of the representations
and warranties set forth in Exhibit C of the Mortgage Loan Purchase Agreement,
as of such other date specifically provided in the particular representation and
warranty) with the same effect as if made on the date hereof (or, in the case of
the representations and warranties set forth in Exhibit C of the Mortgage Loan
Purchase Agreement, on such other date specifically provided in the particular
representation and warranty), and (ii) AMCC has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part
required under the Mortgage Loan Purchase Agreement to be performed or satisfied
at or prior to the date hereof. Capitalized terms used but not otherwise defined
herein have the respective meanings assigned to them in the Mortgage Loan
Purchase Agreement and, if not defined therein, then in the Indemnification
Agreement.
Certified this day of December, 2000.
ARTESIA MORTGAGE CAPITAL CORPORATION
By:
----------------------------------
Name:
Title:
M-3-49
<PAGE> 599
EXHIBIT D-3A
FORM OF OPINION OF SIDLEY & AUSTIN,
SPECIAL COUNSEL TO THE SELLER
S I D L E Y & A U S T I N
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
CHICAGO 875 THIRD AVENUE HONG KONG
DALLAS NEW YORK, NEW YORK 10022 LONDON
LOS ANGELES TELEPHONE 212 906 2000 SHANGHAI
SEATTLE FACSIMILE 212 906 2021 SINGAPORE
WASHINGTON, D.C. TOKYO
FOUNDED 1866
DECEMBER 19, 2000
Salomon Brothers Mortgage Securities VII, Inc.
388 Greenwich Street
New York, New York 10013
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Deutsche Bank Securities Inc.
31 West 52nd Street, 3rd Floor
New York, New York 10019
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
ABN AMRO Bank N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services
55 Water Street, 41st Floor
New York, New York 10041
Artesia Mortgage Capital Corporation
1180 Northwest Maple Street, Suite 202
Issaquah, Washington 98027
Wells Fargo Bank Minnesota, N.A.
45 Broadway, 12th Floor
New York, New York 10006
Re: Salomon Brothers Mortgage Securities VII, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
M-3-51
<PAGE> 600
We have acted as special counsel to Artesia Mortgage Capital
Corporation ("AMCC") in connection with certain matters relating to the
transactions contemplated by that certain Mortgage Loan Purchase Agreement,
dated as of December 12, 2000 (the "Mortgage Loan Purchase Agreement"), between
AMCC, as seller, and Salomon Brothers Mortgage Securities VII, Inc. ("SBMS
VII"), as purchaser, and that certain Indemnification Agreement referred to
therein (the "Indemnification Agreement"; and, together with the Mortgage Loan
Purchase Agreement, the "AMCC Agreements").
This opinion letter is being provided to you pursuant to
Section 7(h) of the Mortgage Loan Purchase Agreement. Capitalized terms not
defined herein have the respective meanings set forth in, or otherwise assigned
to them pursuant to, the Mortgage Loan Purchase Agreement. For purposes of this
opinion letter, we make reference to that certain letter dated as of December
12, 2000 (the "Artesia BC Support Letter") from Artesia Banking Corporation
("Artesia BC") to SBMS VII and Wells Fargo Bank, N.A., as trustee, relating to
AMCC's obligations under the Mortgage Loan Purchase Agreement.
For the purposes of this opinion letter, we have reviewed the
AMCC Agreements and the Artesia BC Support Letter (collectively, the
"Agreements"). In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such other documents and records as
we have deemed relevant or necessary as the basis for the opinions contained in
this letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which such opinions are
based. We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters material to this opinion
contained in the Agreements, (ii) the legal capacity of natural persons, (iii)
the genuineness of all signatures, (iv) the authenticity of all documents
submitted to us as originals, (v) the conformity to authentic originals of all
documents submitted to us as certified, conformed or photostatic copies, (vi)
except as expressly addressed in paragraph 1 below, the due organization of the
parties to each of the Agreements and the valid existence of each such entity in
good standing under the laws of its jurisdiction of organization, (vii) except
as expressly addressed in paragraphs 1 and 4 below, the power and authority of
the parties to each of the Agreements to enter into, perform under and
consummate the transactions contemplated by such Agreement, without any
resulting conflict with or violation of the organizational documents of any such
party or with or of any law, rule, regulation, order or decree applicable to any
such party or its assets, and without any resulting default under or breach of
any other agreement or instrument by which any such party is bound or which is
applicable to it or its assets, (viii) except as expressly addressed by
paragraph 2 below, the due authorization by all necessary action, and the due
execution and delivery, of each of the Agreements by the parties thereto, (ix)
except as expressly addressed in paragraphs 3 and 6 below, the constitution of
each of the Agreements as the legal, valid and binding obligation of each party
thereto, enforceable against such party in accordance with its terms, and (x)
the absence of any other agreement that supplements or otherwise modifies the
intentions and agreements of the parties to the Agreements, as expressed
therein.
M-3-52
<PAGE> 601
When used in this opinion, the term "knowledge" and words of
similar import mean that the Sidley & Austin attorneys currently practicing law
with this firm who have been actively involved in representing AMCC in
connection with any matters relating to the transaction contemplated by the AMCC
Agreements, have no current conscious awareness of any contrary facts or
information. In that regard, we have conducted no special or independent
investigation of factual matters in connection with this opinion letter.
In delivering this opinion letter, we do not express any
opinions concerning the laws of any jurisdiction other than the laws of the
State of New York and, where expressly referred to below, the federal laws of
the United States of America (without regard to conflicts of law principles). In
addition, we do not express any opinion with respect to the tax, securities or
"doing business" laws of any particular jurisdiction or with respect to any
matter not expressly addressed below.
Our opinions set forth below with respect to the
enforceability of any agreement or any particular right or obligation under any
agreement are subject to: (1) general principles of equity, including concepts
of materiality, reasonableness, good faith and fair dealing and the doctrine of
estoppel; (2) the possible unavailability of specific performance and injunctive
relief, regardless of whether considered in a proceeding in equity or at law;
(3) the effect of certain laws, rules, regulations and judicial and other
decisions upon the enforceability of (a) any provision that purports to waive
(i) the application of any federal, state or local statute, rule or regulation,
(ii) the application of any general principles of equity or (iii) the obligation
of diligence, (b) any provision that purports to grant any remedies that would
not otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
Based upon and subject to the foregoing, we are of the opinion
that:
M-3-53
<PAGE> 602
SECTION 29. AMCC is validly existing as a corporation in good standing under
the laws of the State of Delaware and has the requisite corporate
power and authority to enter into and perform its obligations under
the AMCC Agreements.
SECTION 30. Each AMCC Agreement has been duly authorized, executed and
delivered by AMCC.
SECTION 31. The Mortgage Loan Purchase Agreement constitutes a valid, legal and
binding agreement of AMCC, enforceable against AMCC in accordance
with its terms.
SECTION 32. The execution, delivery and performance of the AMCC Agreements by
AMCC will not conflict with or result in a violation of any federal
or State of New York statute or regulation generally applicable to
domestic corporations in connection with transactions of the type
contemplated by the AMCC Agreements.
SECTION 33. To our knowledge, no consent, approval, authorization or order of
any federal or State of New York court, agency or other
governmental body is required for the consummation by AMCC of the
transactions contemplated by the terms of the AMCC Agreements.
SECTION 34. The Artesia BC Support Letter constitutes a valid, legal and
binding agreement of AMCC, enforceable against AMCC in accordance
with its terms.
The opinions expressed herein are being delivered to you as of
the date hereof, and we assume no obligation to advise you of any changes of law
or fact that may occur after the date hereof, notwithstanding that such changes
may affect the legal analysis or conclusions contained herein. This opinion
letter is being delivered solely for your benefit in connection with the
transactions contemplated by the AMCC Agreements. Accordingly, it may not be
quoted, filed with any governmental authority or other regulatory agency or
otherwise circulated or utilized for any other purpose without our prior written
consent.
Very truly yours,
M-3-54
<PAGE> 603
EXHIBIT D-3B
FORM OF LETTER RELATING
TO DISCLOSURE FROM SIDLEY & AUSTIN,
SPECIAL COUNSEL TO THE SELLER
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
CHICAGO 875 THIRD AVENUE HONG KONG
NEW YORK, NEW YORK 10022
DALLAS TELEPHONE 212 906 2000 LONDON
FACSIMILE 212 906 2021
LOS ANGELES SHANGHAI
SEATTLE FOUNDED 1866 SINGAPORE
WASHINGTON, D.C. TOKYO
December 19, 2000
Salomon Brothers Mortgage Deutsche Bank Securities Inc.
Securities VII, Inc. 31 West 52nd Street, 3rd Floor
388 Greenwich Street New York, New York 10019
New York, New York 10013
Salomon Smith Barney Inc. J.P. Morgan Securities Inc.
388 Greenwich Street 60 Wall Street
New York, New York 10013 New York, New York 10260-0060
Greenwich Capital Markets, Inc. ABN AMRO Bank N.V.
600 Steamboat Road 135 South LaSalle Street
Greenwich, Connecticut 06830 Chicago, Illinois 60603
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Re: Salomon Brothers Mortgage Securities VII, Inc.
Commercial Mortgage Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
We have acted as special counsel to Salomon Brothers Mortgage
Securities VII, Inc. (the "Depositor"), Salomon Brothers Realty Corp. ("SBRC"),
Greenwich Capital Financial Products, Inc. ("GCFP") and Artesia Mortgage Capital
Corporation ("AMCC") in connection with certain matters relating to the
following transactions (collectively, the "Transactions"):
(i) the sale by SBRC, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "SBRC Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of December 12, 2000 (the "SBRC Mortgage Loan Purchase Agreement"),
between SBRC and the Depositor;
(ii) the sale by GCFP, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "GCFP Mortgage
Loans"), pursuant to
M-3-55
<PAGE> 604
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 2
that certain Mortgage Loan Purchase Agreement, dated as of December 12,
2000 (the "GCFP Mortgage Loan Purchase Agreement"), between GCFP and the
Depositor;
(iii) the sale by AMCC, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "AMCC Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of December 12, 2000 (the "AMCC Mortgage Loan Purchase Agreement"),
between AMCC and the Depositor;
(iv) the sale by LaSalle Bank National Association ("LBNA"), and
the purchase by the Depositor, of certain multifamily and commercial
mortgage loans (the "LBNA Mortgage Loans"), pursuant to that certain
Mortgage Loan Purchase Agreement, dated as of December 12, 2000 (the "LBNA
Mortgage Loan Purchase Agreement"), between LBNA and the Depositor;
(v) the creation of a common law trust (the "Trust") and the
issuance of an aggregate $914,661,061 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2000-C3 (the
"Certificates"), consisting of 18 classes designated Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class X, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class R and Class Y,
pursuant to that certain Pooling and Servicing Agreement, dated as of
December 1, 2000 (the "Pooling and Servicing Agreement"), among the
Depositor as depositor, Midland Loan Services, Inc., as master servicer,
Lennar Partners, Inc., as special servicer, Wells Fargo Bank Minnesota,
N.A., as trustee (the "Trustee"), and LaSalle Bank National Association, as
certificate administrator and tax administrator;
(vi) the conveyance of the SBRC Mortgage Loans, the GCFP Mortgage
Loans, the AMCC Mortgage Loans and the LBNA Mortgage Loans (collectively,
the "Mortgage Loans") by the Depositor to the Trust, pursuant to the
Pooling and Servicing Agreement, in exchange for the issuance of the
Certificates; and
(vii) the sale by the Depositor, and the purchase by Salomon Smith
Barney Inc. ("SSBI"), Greenwich Capital Markets, Inc. ("Greenwich
Capital"), Chase Securities Inc. ("Chase"), Deutsche Bank Securities Inc.
("Deutsche Bank"), J.P. Morgan Securities Inc. ("J.P. Morgan") and ABN AMRO
Bank N.V. ("ABN AMRO"; and, together with SSBI, Greenwich Capital, Chase,
Deutsche Bank and J.P. Morgan in such capacity, the "Underwriters"), of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates (collectively, the "Publicly Offered Certificates"), pursuant
to that
M-3-56
<PAGE> 605
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 3
certain Underwriting Agreement, dated as of December 12, 2000 (the
"Underwriting Agreement"), between the Depositor and the Underwriters.
The SBRC Mortgage Loan Purchase Agreement, the GCFP Mortgage Loan
Purchase Agreement, the AMCC Mortgage Loan Purchase Agreement and the LBNA
Mortgage Loan Purchase Agreement are collectively referred to herein as the
"Mortgage Loan Purchase Agreements". The Mortgage Loan Purchase Agreements, the
Pooling and Servicing Agreement, the Underwriting Agreement and the Certificate
Purchase Agreement are collectively referred to herein as the "Agreements".
Capitalized terms not defined herein have the respective meanings set forth in
the Pooling and Servicing Agreement and, to the extent not defined therein, in
the other Agreements.
For the purposes of this letter, we have reviewed: the Agreements; the
Depositor's registration statement on Form S-3 (No. 333-40426) (the
"Registration Statement") filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"); the
Prospectus, dated December 12, 2000, relating to publicly offered mortgage
pass-through certificates evidencing interests in trust funds established by the
Depositor (the "Basic Prospectus"); and the Prospectus Supplement, dated
December 12, 2000, specifically relating to the Trust and the Publicly Offered
Certificates (including all exhibits and annexes thereto, the "Prospectus
Supplement"; and, together with the Basic Prospectus, the "Prospectus"). In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the statements made in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the respective parties to the Agreements and
public officials as we have deemed relevant or necessary as the basis for the
statements made in this letter; and we have relied upon, and assumed the
accuracy of, such other documents and records, such certificates and the
statements made in response to such inquiries, with respect to the factual
matters upon which the statements made in this letter are based. We have also
assumed (i) the truthfulness and accuracy of each of the representations and
warranties as to factual matters contained in the Agreements, (ii) the legal
capacity of natural persons, (iii) the genuineness of all signatures, (iv) the
authenticity of all documents submitted to us as originals, (v) the conformity
to authentic originals of all documents submitted to us as certified, conformed
or photostatic copies, (vi) the due authorization by all necessary action, and
the due execution and delivery, of the Agreements by the parties thereto, (vii)
the constitution of each of the Agreements as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, (viii) compliance with the Agreements by the
M-3-57
<PAGE> 606
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 4
parties thereto, (ix) the conformity, to the requirements of the Pooling and
Servicing Agreement and the respective Mortgage Loan Purchase Agreements, of the
Mortgage Notes, the Mortgages and the other documents relating to the Mortgage
Loans delivered to the Trustee by, on behalf of or at the direction of the
Depositor, SBRC, GCFP, AMCC and LBNA, (x) the conformity of the text of each
document filed with the Commission through the Commission's Electronic Data
Gathering, Analysis and Retrieval System to the printed documents reviewed by
us, and (xi) the absence of any agreement that supplements or otherwise modifies
the intentions and agreements of the parties to the Agreements, as expressed
therein. In rendering this letter, we do not make any statement concerning the
laws of any jurisdiction other than the federal laws of the United States of
America.
In the course of acting as special counsel to the Depositor, SBRC, GCFP
and AMCC in connection with the preparation of the Prospectus, we have generally
reviewed and discussed with certain representatives of the Depositor, SBRC,
GCFP, AMCC, LBNA, SSBI, Greenwich Capital and the other parties to the
Agreements and their respective counsel (in addition to us) the information set
forth in the Prospectus, other than any documents or information incorporated by
reference in either the Prospectus or the Memorandum. In addition, we have
reviewed loan summaries delivered to us by SBRC, GCFP and AMCC with respect to
the SBRC Mortgage Loans, the GCFP Mortgage Loans and the AMCC Mortgage Loans,
respectively; and we have undertaken a limited review of copies of certain
environmental insurance policies and other selected Mortgage Loan documents with
respect to certain SBRC Mortgage Loans, GCFP Mortgage Loans and AMCC Mortgage
Loans. While we have not otherwise made any independent check or verification
of, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, on the basis of the foregoing, nothing has come to our attention
that causes us to believe that the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the Prospectus
Supplement or as of the date hereof, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that we make no statement as to: (i) any
accounting, financial or statistical data or other information of that nature
contained in or omitted from the Registration Statement or the Prospectus; (ii)
any documents or information incorporated by reference in the Registration
Statement or the Prospectus; (iii) any information on the diskette that
accompanies the Prospectus; or (iv) any information with respect to the
characteristics of the LBNA Mortgage
M-3-58
<PAGE> 607
SIDLEY & AUSTIN NEW YORK
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
December 19, 2000
Page 5
Loans, the related Borrowers and/or the related Mortgaged Properties contained
in or omitted from the Prospectus. In that connection, we advise you that we
have, as to materiality, relied to the extent we deemed appropriate upon the
judgment of officers and representatives of the Depositor, SBRC, GCFP and AMCC.
In addition, in that connection, we call to your attention that, with your
knowledge and consent, except as stated above, we have not examined or otherwise
reviewed any of the Mortgage Files, Servicing Files or any particular documents
contained in such files or any other documents with respect to the Mortgage
Loans.
When used in this letter, the term "attention" or any other word or
phrase of similar import means the conscious awareness of facts or other
information of solely those attorneys who are currently practicing law with
Sidley & Austin and have been actively involved in representing the Depositor,
SBRC, GCFP and AMCC in connection with any matters relating to the Transactions.
With your permission, no attempt was made by such attorneys to gather
information from any other attorneys currently practicing law with Sidley &
Austin that may have represented the Depositor, SBRC, GCFP, AMCC or any of their
respective affiliates in other matters or to review any files associated with
those matters.
This letter is being delivered to you as of the date hereof, and we
assume no obligation to advise you of any changes of law or fact that may occur
after the date hereof, notwithstanding that such changes may affect the
statements made herein. This letter is solely for your benefit in connection
with the Transactions and may not be relied on in any manner for any other
purpose or by any other person or transmitted to any other person without our
prior consent.
Very truly yours,
M-3-59
<PAGE> 608
EXHIBIT E
ORGANIZATIONAL DOCUMENTS OF THE SELLER
M-3-60
<PAGE> 609
EXHIBIT M-4
FORM OF LASALLE MORTGAGE LOAN PURCHASE
AGREEMENT
<PAGE> 610
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective as of December 12, 2000, between LaSalle Bank National
Association, a national banking association ("LaSalle"), as seller (in such
capacity, together with its successors and permitted assigns hereunder, the
"Seller"), and Salomon Brothers Mortgage Securities VII, Inc., a Delaware
corporation ("SBMS VII"), as purchaser (in such capacity, together with its
successors and permitted assigns hereunder, the "Purchaser").
RECITALS
LaSalle desires to sell, assign, transfer and otherwise convey
to SBMS VII, without recourse, and SBMS VII desires to purchase, subject to the
terms and conditions set forth herein, the multifamily and commercial mortgage
loans (the "Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended from
time to time pursuant to the terms hereof.
SBMS VII intends to create a trust (the "Trust"), the primary
assets of which will be the Mortgage Loans, certain other multifamily and
commercial mortgage loans (the "Other Loans"; and, together with the Mortgage
Loans, the "Securitized Loans"). Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund") will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc. and Moody's Investors Service, Inc. (together,
the "Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be subject to registration under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of December 1, 2000 (the "Pooling and Servicing Agreement"), among SBMS
VII, as depositor, Midland Loan Services, Inc., as master servicer (the "Master
Servicer"), Lennar Partners, Inc., as special servicer ( "Special Servicer"),
and Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee"). Capitalized
terms used but not otherwise defined herein have the respective meanings
assigned to them in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date (as defined in Section 1 hereof). It is anticipated
that SBMS VII will transfer the Mortgage Loans to the Trust contemporaneously
with its purchase of the Mortgage Loans hereunder.
The Depositor will acquire some of the Other Loans from
Salomon Brothers Realty Corp. ("SBRC"), some of the Other Loans from Greenwich
Capital Financial Products, Inc. ("GCFP"), and the remaining Other Loans from
Artesia Mortgage Capital Corporation ("AMCC"; and, collectively with SBRC and
GCFP, the "Other Loan Sellers").
SBMS VII intends to sell the Registered Certificates to
Salomon Smith Barney Inc. ("SSBI"), Greenwich Capital Markets, Inc. ("Greenwich
Capital"), Chase Securities Inc. ("Chase"), Deutsche Bank Securities Inc.
("Deutsche Bank"), J.P. Morgan Securities Inc. ("J.P. Morgan") and ABN AMRO Bank
N.V. ("ABN AMRO"), pursuant to an underwriting
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agreement, dated as of the date hereof (the "Underwriting Agreement"), among
SBMS VII, SSBI, Greenwich Capital, Chase, Deutsche Bank, J.P. Morgan and ABN
AMRO; and SBMS VII intends to sell the remaining Certificates (the
"Non-Registered Certificates") to SSBI and Greenwich Capital, pursuant to a
certificate purchase agreement, dated as of the date hereof (the "Certificate
Purchase Agreement"), among SBMS VII, SSBI and Greenwich Capital. The Registered
Certificates are more fully described in the prospectus dated December 12, 2000
(the "Basic Prospectus"); and the supplement to the Basic Prospectus dated
December 12, 2000 (the "Prospectus Supplement"; and, together with the Basic
Prospectus, the "Prospectus"), as each may be amended or supplemented any time
hereafter. Certain classes of the Non-Registered Certificates are more fully
described in the private placement memorandum dated December 12, 2000 (the
"Memorandum"), as it may be amended or supplemented at any time hereafter.
LaSalle will indemnify SBMS VII, SSBI, Greenwich Capital,
Chase, Deutsche Bank, J.P. Morgan, ABN AMRO and certain related parties with
respect to the disclosure regarding the Mortgage Loans and LaSalle contained in
the Prospectus, the Memorandum and certain other disclosure documents and
offering materials relating to the Certificates, pursuant to an indemnification
agreement dated as of the date hereof (the "Indemnification Agreement"), among
LaSalle, SBMS VII, SSBI, Greenwich Capital, Chase, Deutsche Bank, J.P. Morgan
and ABN AMRO.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise
convey (without recourse) to the Purchaser, and the Purchaser agrees to
purchase, subject to the terms and conditions set forth herein, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on December
19, 2000 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). As of the close of business on their respective due
dates in December 2000 (individually, on a loan-by-loan basis, and collectively,
the "Cut-off Date"), the Mortgage Loans will have an aggregate principal
balance, after application of all payments of principal due on the Mortgage
Loans on or before such date, whether or not received, of $205,284,547, subject
to a variance of plus or minus 5%. The purchase price for the Mortgage Loans
shall be $___________, together with accrued interest on the Mortgage Loans at
their respective Net Mortgage Rates from and including the Cut-off Date to but
not including the Closing Date, and shall be paid to the Seller by wire transfer
in immediately available funds on the Closing Date (or by such other method as
shall be mutually acceptable to the parties hereto).
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to its
receipt and acceptance of the purchase price referred to in Section 1 hereof,
the Seller does hereby transfer, assign, set over and otherwise convey to the
Purchaser, without recourse but subject to the terms of this Agreement, all the
right, title and interest of the Seller in and to the Mortgage Loans identified
on the Mortgage Loan Schedule as of such date, including, without limitation,
all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard or other insurance
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policies received by the Seller on or with respect to the Mortgage Loans after
the Cut-off Date and any Additional Collateral. The Seller shall, within 15 days
of the discovery of an error on the Mortgage Loan Schedule, amend the Mortgage
Loan Schedule and deliver to the Purchaser or its designee an amended Mortgage
Loan Schedule. The Mortgage Loan Schedule, as it may be amended, shall conform
to the requirements set forth in this Agreement.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its
expense, deliver or cause to be delivered to the Purchaser or its designee the
Mortgage File and any Additional Collateral (other than reserve funds and escrow
payments) with respect to each Mortgage Loan. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipient of the items
described in the preceding sentence shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original
or certified recorded document or original policy of title insurance which is to
be delivered as part of the related Mortgage File, solely because the Seller is
delayed in making such delivery by reason of the fact that such original or
certified recorded document has not been returned by the appropriate recording
office or such original policy of title insurance has not yet been issued, then
the Seller shall notify the Purchaser, in writing, of such delay (unless the
Trustee shall have provided the Purchaser with an exception report indicating
such delay), and the Seller shall deliver such documents to the Purchaser or its
designee promptly upon the Seller's receipt thereof.
In addition, unless previously delivered by the Seller to the
Purchaser or its designee, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, the following items, within 10 days following the Closing Date
(or, if any of the following items are not in the actual possession of the
Seller, within 30 days following the Closing Date): (i) copies of the Mortgage
Files for the respective Mortgage Loans; (ii) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are necessary for the ongoing servicing and
administration of the Mortgage Loans; and (iii) all unapplied reserve funds and
escrow payments in the possession or under the control of the Seller that relate
to the Mortgage Loans, other than those that are to be retained by a
sub-servicer or primary servicer that will continue to act on behalf of the
Purchaser. Unless the Purchaser notifies the Seller in writing to the contrary,
the designated recipient of the items described in clauses (i) - (iii) of the
preceding sentence shall be the Master Servicer.
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The Seller shall also provide to the Purchaser or its designee
the initial data on the Mortgage Loans (as of the Closing Date or the most
recent earlier date for which such date is available) contemplated by the Loan
Set-up File, the Loan Periodic Update File, the Operating Statement Analysis
Report and the Property File.
(d) The Seller shall be responsible for all reasonable costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer to the Purchaser with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement; provided that the Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer. If any such assignment or other instrument of transfer
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, and the Seller receives notice to such effect from the Purchaser
or its designee, then the Seller shall prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be. The Seller shall
provide the Purchaser or its designee with a power of attorney to enable it or
them to record any loan documents that the Purchaser has been unable to record.
(e) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller shall report its transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of those assets
to the Purchaser in exchange for the consideration specified in Section 1
hereof. In connection with the foregoing, the Seller shall cause all of its
records to reflect such transfer as a sale (as opposed to a secured loan) and to
reflect that the Mortgage Loans are no longer property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
SECTION 3. Examination of Mortgage Loan Files and Due
Diligence Review.
The Seller shall reasonably cooperate with any examination of
the Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser. The
fact that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section
4, except as such remedies are otherwise limited by the terms of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes, as of the Closing Date, to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit B.
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(b) The Seller hereby makes, as of the Closing Date (or as of
such other date specifically provided in the particular representation or
warranty) to and for the benefit of the Purchaser, each of the representations
and warranties set forth in Exhibit C.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 4 shall survive delivery of the respective
Mortgage Files to the Purchaser or its designee and shall inure to the benefit
of the Purchaser for so long as any of the Mortgage Loans remains outstanding,
notwithstanding any restrictive or qualified endorsement or assignment.
SECTION 4A. Representations, Warranties and Covenants of
Purchaser.
The Purchaser hereby represents and warrants, as of the
Closing Date, that:
(a) The Purchaser is a duly formed corporation, validly
existing and in good standing under the laws of the State of Delaware.
(d) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(e) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(f) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this Agreement
by the Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or instrument to which it is a party or which is applicable to it or
any of its assets.
(g) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the terms
of this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which violation,
in the Purchaser's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the Purchaser.
(h) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good faith
and reasonable judgment, is likely to materially and
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adversely affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Seller.
(i) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency or body
is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations and
orders that previously have been obtained and those filings and registrations
that previously have been completed.
(j) The Purchaser (i) is not, and has never been, an insider
or affiliate of the Seller, (ii) does not control, and has never controlled, the
Seller, (iii) is not, and has never been, controlled by the Seller, and (iv) is
not, and has never been, under common control with the Seller.
SECTION 5. Notice of Breach; Cure, Repurchase and
Substitution.
(a) Within 90 days of the earlier of discovery or receipt of
notice by the Seller that there has been a Material Breach or a Material
Document Defect, the Seller shall, subject to subsection (b) below, (i) cure
such Material Breach or Material Document Defect, as the case may be, in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price provided for in the
Pooling and Servicing Agreement, which Purchase Price shall be deposited or
delivered in accordance with the directions of the Purchaser; provided that if
(i) any such Material Breach or Material Document Defect, as the case may be,
does not affect whether the Defective Mortgage Loan was, is or will continue to
be, a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
(a "Qualified Mortgage"), (ii) such Material Breach or Material Document Defect,
as the case may be, is capable of being cured but not within such 90-day period,
(iii) the Seller has commenced and is diligently proceeding with the cure of
such Material Breach or Material Document Defect, as the case may be, within
such 90-day period, and (iv) the Seller shall have delivered to the Purchaser a
certification executed on behalf of the Seller by an officer thereof setting
forth the reason that such Material Breach or Material Document Defect, as the
case may be, is not capable of being cured within the initial 90-day period and
what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Material Breach or Material
Document Defect, as the case may be, will be cured within an additional period
not to exceed 90 more days, then the Seller shall have an additional 90 days to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan.
Any such repurchase of a Defective Mortgage Loan shall be on a whole loan,
servicing released basis (subject to any right of a Designated Sub-Servicer to
continue to sub-service such Defective Mortgage Loan as set forth in the related
Designated Sub-Servicer Agreement). The Seller shall have no obligation to
monitor the Mortgage Loans regarding the existence of a Material Breach or a
Material Document Defect, but if the Seller has actual knowledge of a Material
Breach or Material Document Defect with respect to a Mortgage Loan, it will
notify the Purchaser.
If 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
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appropriate, have executed by the related Borrower and record, such
documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loans therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that no such termination shall be effected
unless and until the Purchaser and its servicing agent has received from the
Seller: (i) 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 either Grantor Trust Pool and (ii)
written confirmation from each Rating Agency that such termination will not
cause an Adverse Rating Event to occur with respect to any Class of Rated
Certificates; and provided, further, that the Seller may, at its option,
purchase the entire subject Cross-Collateralized Group in lieu of terminating
the cross-collateralization. All costs and expenses incurred by the Purchaser 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 is a Material Breach or Material Document Defect,
as the case may be, and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
If any Defective Mortgage Loan is to be repurchased as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and shall forward
such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller
set forth in this Section 5(a) to cure a Material Breach or a Material Document
Defect or repurchase the related Defective Mortgage Loan(s), constitute the sole
remedies available to the Purchaser with respect to a Breach or Document Defect.
(b) It shall be a condition to any repurchase of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that (i) the Purchaser
shall have executed and delivered such instruments of transfer or assignment
then presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto), to the extent that such
ownership interest was transferred to the Purchaser hereunder and (ii) the
Purchaser or its assignee shall release or cause the release to the Seller or
its designee of the Mortgage File, any Additional Collateral, all insurance
policies and proceeds thereunder, the Servicing File and any Escrow Payments
and/or Reserve Funds held by or on behalf of the Purchaser (or its assignee)
with respect to such Mortgage Loan.
SECTION 6. Closing.
(a) 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.
(b) The Closing shall be subject to each of the following
conditions:
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(a) All of the representations and warranties of the Seller
made pursuant to Section 4 of this Agreement shall be true and correct
in all material respects as of the Closing Date or such other date as
specified in Exhibit C;
(b) All documents specified in Section 7 of this Agreement
(the "Closing Documents"), in such forms as are reasonably acceptable
to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as it affects the obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the
Purchaser or its designee, all documents and funds required to be so
delivered pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required
to be complied with by the Seller and the Purchaser, including, without
limitation, in the case of the Purchaser, payment of the purchase
price, on or before the Closing Date shall have been complied with, and
the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees, costs and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement;
and
(f) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
(c) Both parties agree to use their best efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents.
The Closing Documents shall consist of the following:
(a) this Agreement duly executed and delivered by the
Purchaser and the Seller;
(b) the Indemnification Agreement duly executed and delivered
by the Seller, the Purchaser and each of SSBI, Greenwich Capital, Chase,
Deutsche Bank, J.P. Morgan and ABN AMRO;
(c) the Pooling and Servicing Agreement duly executed and
delivered by SBMS VII, the Master Servicer, the Special Servicer and the
Trustee;
(d) an Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and upon
which the Purchaser, SSBI, Greenwich Capital, Chase,
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Deutsche Bank, J.P. Morgan, ABN AMRO and the Rating Agencies (collectively, the
"Interested Parties") may rely, attaching thereto as exhibits the organizational
documents of the Seller, as in full force and effect on the date hereof, and the
Resolutions described in clause(g) below;
(e) a certificate of good standing with respect to the Seller
issued by the Secretary of State of the State of New York dated not earlier than
10 days prior to the Closing Date;
(f) a certificate of the Seller substantially in the form of
Exhibit D-2 hereto, executed by an executive officer or authorized signatory of
the Seller and dated the Closing Date, and upon which the Interested Parties may
rely;
(g) resolutions of the Seller authorizing the transactions
contemplated by this Agreement, which resolutions will be in full force and
effect, and will not have been rescinded, as of the Closing Date;
(h) a written opinion of counsel for the Seller, which may be
delivered by in-house counsel, substantially in the form of Exhibit D-3A hereto
(with any modifications required by any Rating Agency, and subject to such
reasonable assumptions, qualifications and limitations as may be requested by
counsel for the Seller and acceptable to counsel for the Purchaser), relating to
the disclosure in the Prospectus regarding the Mortgage Loans and LaSalle, dated
the Closing Date and addressed to the Purchaser, each of the other parties to
the Pooling and Servicing Agreement and each of the other Interested Parties;
(i) a written opinion of Mayer Brown & Platt, as special
counsel for the Seller, substantially in the form of Exhibit D-3B hereto (with
any modifications required by any Rating Agency, and subject to such reasonable
assumptions, qualifications and limitations as may be requested by counsel for
the Seller and acceptable to counsel for the Purchaser), dated the Closing Date
and addressed to the Purchaser, each of the other parties to the Pooling and
Servicing Agreement and each of the other Interested Parties;
(j) such other written opinions as may be required by either
Rating Agency (including, without limitation, a favorable opinion to the effect
that an FDIC receiver appointed for the Seller, in the event of an in solvency
of the Seller, would not repudiate this Agreement and that this Agreement
creates a valid, perfected, first priority security interest in the Mortgage
Loans in favor of the Purchaser);
(k) one or more accountants' comfort letters, addressed, and
in form and substance reasonably acceptable, to SSBI, Greenwich Capital, Chase,
Deutsche Bank, J.P. Morgan and ABN AMRO, relating to the information regarding
the Mortgage Loans contained in the Prospectus and Memorandum that is of a
statistical nature; and
SECTION 8. Costs.
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Any costs and expenses incurred by either party hereto in
connection with the transactions contemplated hereunder shall be borne by the
parties in accordance with the terms of that certain Term Sheet, dated October
20, 2000 (the "Term Sheet"), between the Seller, Salomon Brothers Realty Corp.,
Greenwich Capital Financial Products, Inc., and Artesia Mortgage Capital
Corporation.
SECTION 9. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to the Purchaser at 388 Greenwich Street, New
York, New York 10013, attention: Angela Hutzel, facsimile no.: 212-816-8306, or
to such other address or facsimile number as may hereafter be furnished to the
Seller in writing by the Purchaser; and, if to the Seller, addressed to the
Seller at 135 South LaSalle Street, Suite 1260, Chicago, Illinois 60603,
attention: Margaret Govern, facsimile no.: 312-904-0900, or to such other
address or facsimile number as may hereafter be furnished to the Purchaser in
writing by the Seller.
SECTION 10. Characterization.
The parties hereto agree that it is their express intent that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. The parties hereto further agree that it is not
their intention that such conveyance be deemed a pledge of the Mortgage Loans by
the Seller to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to continue to be property of the Seller, then: (a) this Agreement shall be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder(s) of those assets in accordance with the terms thereof (other
than scheduled payments of interest and principal due on or before the Cut-off
Date) and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property; (c) the
assignment by SBMS VII to the Trustee of its interests in the Mortgage Loans as
contemplated by Section 16 hereof shall be deemed to be an assignment of any
security interest created hereunder; (d) the possession by the Purchaser or any
successor thereto of the related Mortgage Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction; and
(e) notifications to, and acknowledgments, receipts or confirmations from,
persons or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security
M-4-11
<PAGE> 620
interest in the Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
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.
M-4-12
<PAGE> 621
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, SBMS VII is
expressly authorized to assign it rights and obligations under this Agreement,
in whole or in part, to the Trustee for the benefit of the registered holders
and beneficial owners of the Certificates. To the extent of any such assignment,
the Trustee (including acting through the Master Servicer and Special Servicer
pursuant to the terms of the Pooling and Servicing Agreement), for the benefit
of the registered holders and beneficial owners of the Certificates, shall be
the Purchaser hereunder. In connection with the transfer of any Mortgage Loan by
the Trust as contemplated by the terms of the Pooling and Servicing Agreement,
the Trustee, for the benefit of the registered holders and beneficial owners of
the Certificates, is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the transferee of such Mortgage
Loan. To the extent of any such assignment, such transferee shall be the
Purchaser hereunder (but solely with respect to such Mortgage Loan that was
transferred to it). Subject to the foregoing, this Agreement shall bind and
inure to the benefit of and be enforceable by the Seller and the Purchaser, and
their respective successors and permitted assigns.
SECTION 17. Amendments.
(a) No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced.
(b) Notwithstanding any contrary provision of this Agreement
or the Pooling and Servicing Agreement, no amendment of the Pooling and
Servicing Agreement executed after the Closing Date that increases the
obligations of or otherwise adversely affects the Seller, shall be effective
against the Seller.
SECTION 18. Entire Agreement.
Except as otherwise expressly contemplated hereby, this
Agreement constitutes the entire agreement and understanding of the parties with
respect to the matters addressed herein, and this Agreement supersedes any prior
agreements and/or understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
M-4-13
<PAGE> 622
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.
LASALLE BANK NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
SALOMON BROTHERS MORTGAGE
SECURITIES VII, INC.
By:
------------------------------------
Name:
Title:
M-4-14
<PAGE> 623
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached Schedule]
M-4-15
<PAGE> 624
<TABLE>
<CAPTION>
Loan Loan / Property
Control Num Origi Property Property Zip Property Size Unit
Number ber nator Name Address City State Code Size Type
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical 2060 East 9th Cleveland OH 44115 381,176 SF
Mutual of Ohio Street
103 34 LBNA Jorie Plaza 800-810 Jorie Oak Brook IL 60523 191,666 SF
Boulevard
107 8 LBNA 101 West 101 West Chicago IL 60610 72,865 SF
Grand Grand
108 14 LBNA 57 W. Grand 57 W. Grand Chicago IL 60610 83,469 SF
109 28 LBNA 40 West 40 West Chicago IL 60610 12,672 SF
Hubbard Hubbard Street
110 3 LBNA South Loop 1245 South Chicago IL 60607 102,265 SF
Market Place Clinton
114 4 LBNA Seattle-Mead 811, 835, 855, SeaTac WA 98148 235,031 SF
Industrial S. 192nd Street
Facilities
115 5 LBNA Hamilton Court 1030 Charlela Elk Grove IL 60007 579 Units
Apartments Lane Village
121 7 LBNA 29200 29200 NW Southfield MI 48034 111,542 SF
Northwestern Highway
Highway
124 15 LBNA GE / Montgomery 2420 E. Pikes Colorado CO 80909 161,986 SF
Wards Peak Avenue Springs
- Col. Springs
125 24 LBNA GE / 2222 Spencer Pasadena TX 77504 193,006 SF
Montgomery Highway
Wards
- Pasadena Tx
127 9 LBNA Traders Tower 308-326 South Chicago IL 60606 250,500 SF
- Self Park Wells Street
128 10 LBNA Mabek CO L.P. 500 North Lake Forest IL 60045 93,000 SF
Field Drive
140 16 LBNA Horizon Health 19900 Livonia MI 48152 46,267 SF
Center Haggerty Road
146 17 LBNA Carriage House 1545 S. State Chicago IL 60605 81 Units
Lofts
171 18 LBNA Chandler's 630 Davis Evanston IL 60201 26,342 SF
Building Street
175 19 LBNA Springdale 1600 Boston Springfield MA 01129 103,763 SF
Mall Road
176 20 LBNA Frontier 1225 Jefferson Rochester NY 14623 64,846 SF
Commons/ Road
Global
Crossing
179 22 LBNA Watermark 1600 Columbus OH 43215 43,929 SF
Office Building Watermark
183 23 LBNA Palm Haven 3301 58th St. FL 33714 270 Pads
Mobile Home Avenue North Petersburg
Park
186 25 LBNA Imperial Crown 5925 Imperial Mulberry FL 33860 66,568 SF
Center Parkway
199 27 LBNA Fountain Place 920 South Lansing MI 48910 108 Units
Apartments Washington
Avenue
209 29 LBNA Almond Grand 7501 Grand Gurnee IL 60031 13,905 SF
Gurnee Avenue
225 30 LBNA Birchbrook 3000 E. Birch Brea CA 92621 24,635 SF
Office Park Street
233 31 LBNA Kendall Manor 125 S. Kendall Kalamazoo MI 49006 81 Units
Apartments Avenue
254 32 LBNA Wickiup 2015 East Apache AZ 85219 111 Pads
Mobile Home Highway 60 Junction
& RV Park
266 33 LBNA E. M. 145 Metro Park Rochester NY 14623 31,035 SF
Jorgensen
Building
</TABLE>
<TABLE>
<CAPTION>
Cross
Collater-
alized
Cross Mortgage
Collater- Loan
alized Group
Loan Loan / (Mortgage Aggregate
Control Num Origi Property Property Loan Cut-Off Date Ownership Original
Number ber nator Name Address Group) Balance Interest Balance
<S> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical 2060 East 9th No 35,364,183 Fee Simple 35,400,000
Mutual of Ohio Street
103 34 LBNA Jorie Plaza 800-810 Jorie No 22,800,000 Fee Simple 22,800,000
Boulevard
107 8 LBNA 101 West 101 West Yes (L1) 18,500,000 Fee Simple 10,000,000
Grand Grand
108 14 LBNA 57 W. Grand 57 W. Grand Yes (L1) 18,500,000 Fee Simple 6,000,000
109 28 LBNA 40 West 40 West Yes (L1) 18,500,000 Fee Simple 2,500,000
Hubbard Hubbard Street
110 3 LBNA South Loop 1245 South No 18,235,848 Fee Simple 18,250,000
Market Place Clinton
114 4 LBNA Seattle-Mead 811, 835, 855, No 16,000,000 Fee Simple 16,000,000
Industrial S. 192nd Street
Facilities
115 5 LBNA Hamilton Court 1030 Charlela No 15,988,455 Fee Simple 16,000,000
Apartments Lane
121 7 LBNA 29200 29200 NW No 10,268,535 Part Fee 10,275,000
Northwestern Highway Simple
Highway &Part
Leasehold
124 15 LBNA GE / Montgomery 2420 E. Pikes Yes (L2) 9,148,751 Fee Simple 6,000,000
Wards Peak Avenue
- Col. Springs
125 24 LBNA GE / 2222 Spencer Yes (L2) 9,148,751 Fee Simple 3,200,000
Montgomery Highway
Wards
- Pasadena Tx
127 9 LBNA Traders Tower 308-326 South No 8,343,003 Fee Simple 8,600,000
- Self Park Wells Street
128 10 LBNA Mabek CO L.P. 500 North No 8,145,364 Fee Simple 11,250,000
Field Drive
140 16 LBNA Horizon Health 19900 No 5,836,518 Fee Simple 5,850,000
Center Haggerty Road
146 17 LBNA Carriage House 1545 S. State No 5,500,000 Fee Simple 5,500,000
Lofts
171 18 LBNA Chandler's 630 Davis No 3,887,454 Fee Simple 3,900,000
Building Street
175 19 LBNA Springdale 1600 Boston No 3,646,086 Fee Simple 3,650,000
Mall Road
176 20 LBNA Frontier 1225 Jefferson No 3,641,184 Fee Simple 3,650,000
Commons/ Road
Global
Crossing
179 22 LBNA Watermark 1600 No 3,446,549 Fee Simple 3,450,000
Office Building Watermark
183 23 LBNA Palm Haven 3301 58th No 3,192,704 Fee Simple 3,200,000
Mobile Home Avenue North
Park
186 25 LBNA Imperial Crown 5925 Imperial No 3,100,000 Fee Simple 3,100,000
Center Parkway
199 27 LBNA Fountain Place 920 South No 2,525,986 Fee Simple 2,550,000
Apartments Washington
Avenue
209 29 LBNA Almond Grand 7501 Grand No 2,386,336 Fee Simple 2,390,000
Gurnee Avenue
225 30 LBNA Birchbrook 3000 E. Birch No 1,795,756 Fee Simple 1,800,000
Office Park Street
233 31 LBNA Kendall Manor 125 S. Kendall No 1,496,527 Fee Simple 1,500,000
Apartments Avenue
254 32 LBNA Wickiup 2015 East No 1,133,071 Fee Simple 1,135,000
Mobile Home Highway 60
& RV Park
266 33 LBNA E. M. 145 Metro Park No 902,239 Fee Simple 904,250
Jorgensen
Building
</TABLE>
<TABLE>
<CAPTION>
Loan Loan / Mort- Interest
Control Num Origi Property gage Rate Accrual
Number ber nator Name Rate Type Method Loan Type Note Date x
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical 8.3800% Fixed Actual/360 Balloon 09/29/00
Mutual of Ohio
103 34 LBNA Jorie Plaza 8.3300% Fixed Actual/360 Balloon 11/22/00
107 8 LBNA 101 West 7.5900% Fixed Actual/360 Balloon 11/15/00
Grand
108 14 LBNA 57 W. Grand 7.5500% Fixed Actual/360 Balloon 11/15/00
109 28 LBNA 40 West 7.3800% Fixed Actual/360 Balloon 11/15/00
Hubbard
110 3 LBNA South Loop 7.2800% Fixed Actual/360 Balloon 10/19/00
Market Place
114 4 LBNA Seattle-Mead 8.1200% Fixed Actual/360 Balloon 11/13/00
Industrial
Facilities
115 5 LBNA Hamilton Court 7.6400% Fixed Actual/360 Balloon 10/31/00
Apartments
121 7 LBNA 29200 8.3150% Fixed Actual/360 Balloon 10/24/00
Northwestern
Highway
124 15 LBNA GE / Montgomery 7.6600% Fixed Actual/360 Full Amort 10/13/00
Wards
- Col. Springs
125 24 LBNA GE / 7.6600% Fixed Actual/360 Full Amort 10/13/00
Montgomery
Wards
- Pasadena Tx
127 9 LBNA Traders Tower 9.0000% Fixed 30/360 Balloon 03/14/97
- Self Park
128 10 LBNA Mabek CO L.P. 8.8000% Fixed Actual/360 Full Amort 04/21/94
140 16 LBNA Horizon Health 8.5650% Fixed Actual/360 Balloon 06/29/00
Center
146 17 LBNA Carriage House 8.1300% Fixed Actual/360 Balloon 11/16/00
Lofts
171 18 LBNA Chandler's 8.6500% Fixed Actual/360 Balloon 04/27/00
Building
175 19 LBNA Springdale 8.1700% Fixed Actual/360 Balloon 09/06/00
Mall
176 20 LBNA Frontier 8.4100% Fixed Actual/360 Balloon 06/28/00
Commons/
Global
Crossing
179 22 LBNA Watermark 8.4210% Fixed Actual/360 Balloon 09/19/00
Office Building
183 23 LBNA Palm Haven 8.6000% Fixed Actual/360 Balloon 06/08/00
Mobile Home
Park
186 25 LBNA Imperial Crown 8.2730% Fixed Actual/360 Balloon 11/16/00
Center
199 27 LBNA Fountain Place 7.7900% Fixed Actual/360 Balloon 09/01/99
Apartments
209 29 LBNA Almond Grand 8.6500% Fixed Actual/360 Balloon 08/03/00
Gurnee
225 30 LBNA Birchbrook 8.4900% Fixed Actual/360 Balloon 06/30/00
Office Park
233 31 LBNA Kendall Manor 8.5500% Fixed Actual/360 Balloon 06/29/00
Apartments
254 32 LBNA Wickiup 8.2400% Fixed Actual/360 Balloon 08/14/00
Mobile Home
& RV Park
266 33 LBNA E. M. 8.6800% Fixed Actual/360 Balloon 06/09/00
Jorgensen
Building
</TABLE>
<TABLE>
<CAPTION>
Original
Term
Monthly to
Loan Loan / Antici- Sched- Debt Maturity /
Control Num Origi Property Control Loan pated Repay- uled Service ARD
Number ber nator Name Number Number ment Date Maturity Date Payment (months)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical 102 1 NAP 10/01/10 269,190.52 120
Mutual of Ohio
103 34 LBNA Jorie Plaza 103 34 NAP 12/01/10 172,572.76 120
107 8 LBNA 101 West 107 8 NAP 12/01/10 70,538.76 120
Grand
108 14 LBNA 57 W. Grand 108 14 NAP 12/01/10 42,158.49 120
109 28 LBNA 40 West 109 28 NAP 12/01/10 17,275.40 120
Hubbard
110 3 LBNA South Loop 110 3 NAP 11/01/10 124,868.74 120
Market Place
114 4 LBNA Seattle-Mead 114 4 NAP 12/01/10 118,743.55 120
Industrial
Facilities
115 5 LBNA Hamilton Court 115 5 NAP 11/01/10 113,412.14 120
Apartments
121 7 LBNA 29200 121 7 NAP 11/01/10 77,662.67 120
Northwestern
Highway
124 15 LBNA GE / Montgomery 124 15 NAP 11/01/10 71,723.10 120
Wards
- Col. Springs
125 24 LBNA GE / 125 24 NAP 11/01/10 38,252.32 120
Montgomery
Wards
- Pasadena Tx
127 9 LBNA Traders Tower 127 9 NAP 03/31/07 72,170.89 (c) 120
- Self Park
128 10 LBNA Mabek CO L.P. 128 10 NAP 05/01/09 112,770.40 180
140 16 LBNA Horizon Health 140 16 NAP 07/01/10 45,251.20 120
Center
146 17 LBNA Carriage House 146 17 NAP 12/01/10 40,856.60 120
Lofts
171 18 LBNA Chandler's 171 18 NAP 05/01/10 30,403.20 120
Building
175 19 LBNA Springdale 175 19 NAP 10/01/10 27,216.22 120
Mall
176 20 LBNA Frontier 176 20 NAP 07/01/10 27,832.86 120
Commons/
Global
Crossing
179 22 LBNA Watermark 179 22 NAP 10/01/12 26,334.60 144
Office Building
183 23 LBNA Palm Haven 183 23 NAP 07/01/10 24,832.37 120
Mobile Home
Park
186 25 LBNA Imperial Crown 186 25 NAP 12/01/10 23,339.41 120
Center
199 27 LBNA Fountain Place 199 27 NAP 09/01/09 18,339.05 120
Apartments
209 29 LBNA Almond Grand 209 29 NAP 07/01/06 18,631.70 70
Gurnee
225 30 LBNA Birchbrook 225 30 NAP 07/01/10 13,827.69 120
Office Park
233 31 LBNA Kendall Manor 233 31 NAP 07/01/10 11,586.90 120
Apartments
254 32 LBNA Wickiup 254 32 NAP 09/01/10 8,518.90 120
Mobile Home
& RV Park
266 33 LBNA E. M. 266 33 NAP 07/01/10 7,068.58 120
Jorgensen
Building
</TABLE>
<TABLE>
<CAPTION>
Stated Remain- Stated
Original ing Term to Remaining
Loan Loan / Amort- Season- Maturity / Amort-
Control Num Origi Property Property ization Term ing ARD ization Term
Number ber nator Name Address (months) (months) (months) (months)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical 2060 East 9th 360 2 118 358
Mutual of Ohio Street
103 34 LBNA Jorie Plaza 800-810 Jorie 360 0 120 360
Boulevard
107 8 LBNA 101 West 101 West 360 0 120 360
Grand Grand
108 14 LBNA 57 W. Grand 57 W. Grand 360 0 120 360
109 28 LBNA 40 West 40 West 360 0 120 360
Hubbard Hubbard Street
110 3 LBNA South Loop 1245 South 360 1 119 359
Market Place Clinton
114 4 LBNA Seattle-Mead 811, 835, 855, 360 0 120 360
Industrial S. 192nd Street
Facilities
115 5 LBNA Hamilton Court 1030 Charlela 360 1 119 359
Apartments Lane
121 7 LBNA 29200 29200 NW 360 1 119 359
Northwestern Highway
Highway
124 15 LBNA GE / Montgomery 2420 E. Pikes 120 1 119 119
Wards Peak Avenue
- Col. Springs
125 24 LBNA GE / 2222 Spencer 120 1 119 119
Montgomery Highway
Wards
- Pasadena Tx
127 9 LBNA Traders Tower 308-326 South 300 44 76 270
- Self Park Wells Street
128 10 LBNA Mabek CO L.P. 500 North 180 79 101 101
Field Drive
140 16 LBNA Horizon Health 19900 360 5 115 355
Center Haggerty Road
146 17 LBNA Carriage House 1545 S. State 360 0 120 360
Lofts
171 18 LBNA Chandler's 630 Davis 360 7 113 353
Building Street
175 19 LBNA Springdale 1600 Boston 360 2 118 358
Mall Road
176 20 LBNA Frontier 1225 Jefferson 360 5 115 355
Commons/ Road
Global
Crossing
179 22 LBNA Watermark 1600 360 2 142 358
Office Building Watermark
183 23 LBNA Palm Haven 3301 58th 360 5 115 355
Mobile Home Avenue North
Park
186 25 LBNA Imperial Crown 5925 Imperial 360 0 120 360
Center Parkway
199 27 LBNA Fountain Place 920 South 360 15 105 345
Apartments Washington
Avenue
209 29 LBNA Almond Grand 7501 Grand 360 3 67 357
Gurnee Avenue
225 30 LBNA Birchbrook 3000 E. Birch 360 5 115 355
Office Park Street
233 31 LBNA Kendall Manor 125 S. Kendall 360 5 115 355
Apartments Avenue
254 32 LBNA Wickiup 2015 East 360 3 117 357
Mobile Home Highway 60
& RV Park
266 33 LBNA E. M. 145 Metro Park 360 5 115 355
Jorgensen
Building
</TABLE>
<TABLE>
<CAPTION>
Yield Yield
Loan Mainten- Mainten- Prepay-
Loan Cut-off Balance at ance ance ment
Control Num Origi Date Maturity / Defease Defease Period Period Penalty
Number ber nator Balance ARD Start Date End Date Start Date End Date Start Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA 35,364,183.34 31,934,404.04 10/01/03 06/30/10 NAP NAP NAP
103 34 LBNA 22,800,000.00 20,543,305.72 12/01/03 09/30/10 NAP NAP NAP
107 8 LBNA 10,000,000.00 8,852,255.85 12/01/03 09/30/10 NAP NAP NAP
108 14 LBNA 6,000,000.00 5,306,065.10 12/01/03 09/30/10 NAP NAP NAP
109 28 LBNA 2,500,000.00 2,201,415.82 12/01/03 09/30/10 NAP NAP NAP
110 3 LBNA 18,235,847.93 16,027,421.10 11/01/03 08/31/10 NAP NAP NAP
114 4 LBNA 16,000,000.00 14,346,179.33 12/01/03 09/30/10 NAP NAP NAP
115 5 LBNA 15,988,454.53 14,179,312.03 11/01/03 08/31/10 NAP NAP NAP
121 7 LBNA 10,268,534.52 9,253,368.97 11/01/03 08/31/10 NAP NAP NAP
124 15 LBNA 5,966,576.90 60,952.39 11/01/03 08/31/10 NAP NAP NAP
125 24 LBNA 3,182,174.35 32,507.94 11/01/03 08/31/10 NAP NAP NAP
127 9 LBNA 8,343,002.93 7,364,596.26 NAP NAP 05/01/97 09/30/06 NAP
128 10 LBNA 8,145,363.67 330,965.50 NAP NAP 06/05/94 07/31/08 NAP
140 16 LBNA 5,836,517.68 5,300,891.15 07/01/03 04/30/10 NAP NAP NAP
146 17 LBNA 5,500,000.00 4,932,657.34 12/01/03 09/30/10 NAP NAP NAP
171 18 LBNA 3,887,453.97 3,540,839.88 05/01/03 01/31/10 NAP NAP NAP
175 19 LBNA 3,646,086.27 3,276,719.65 10/01/03 07/31/10 NAP NAP NAP
176 20 LBNA 3,641,183.51 3,295,787.06 07/01/03 04/30/10 NAP NAP NAP
179 22 LBNA 3,446,549.32 3,007,185.62 10/01/03 07/31/12 NAP NAP NAP
183 23 LBNA 3,192,703.97 2,901,913.77 07/01/03 04/30/10 NAP NAP NAP
186 25 LBNA 3,100,000.00 2,789,501.14 12/01/03 09/30/10 NAP NAP NAP
199 27 LBNA 2,525,985.85 2,269,274.88 01/01/03 06/30/09 NAP NAP NAP
209 29 LBNA 2,386,336.28 2,283,929.47 NAP NAP 10/01/00 04/30/06 NAP
225 30 LBNA 1,795,755.67 1,628,282.25 07/01/03 04/30/10 NAP NAP NAP
233 31 LBNA 1,496,527.07 1,358,743.29 07/01/03 04/30/10 NAP NAP NAP
254 32 LBNA 1,133,070.73 1,020,431.36 09/01/04 08/31/10 NAP NAP NAP
266 33 LBNA 902,238.79 821,482.71 07/01/03 04/30/10 NAP NAP NAP
</TABLE>
<TABLE>
<CAPTION>
Prepay- Yield Master
Loan Loan / ment Maintenance Yield Servicing
Control Num Origi Property Penalty Calculation Maintenance Fee
Number ber nator Name End Date Method Interest Rate Rate
<S> <C> <C> <C> <C> <C> <C> <C>
102 1 LBNA Medical NAP NAP NAP 0.0200%
Mutual of Ohio
103 34 LBNA Jorie Plaza NAP NAP NAP 0.0200%
107 8 LBNA 101 West NAP NAP NAP 0.0200%
Grand
108 14 LBNA 57 W. Grand NAP NAP NAP 0.0200%
109 28 LBNA 40 West NAP NAP NAP 0.0200%
Hubbard
110 3 LBNA South Loop NAP NAP NAP 0.0200%
Market Place
114 4 LBNA Seattle-Mead NAP NAP NAP 0.0200%
Industrial
Facilities
115 5 LBNA Hamilton Court NAP NAP NAP 0.0200%
Apartments
121 7 LBNA 29200 NAP NAP NAP 0.0200%
Northwestern
Highway
124 15 LBNA GE / Montgomery NAP NAP NAP 0.0200%
Wards
- Col. Springs
125 24 LBNA GE / NAP NAP NAP 0.0200%
Montgomery
Wards
- Pasadena Tx
127 9 LBNA Traders Tower NAP Present Treasury Flat 0.0200%
- Self Park Value Maturity
128 10 LBNA Mabek CO L.P. NAP Present Treasury 0.0200%
Value Flat-
Maturity
140 16 LBNA Horizon Health NAP NAP NAP 0.0200%
Center
146 17 LBNA Carriage House NAP NAP NAP 0.0200%
Lofts
171 18 LBNA Chandler's NAP NAP NAP 0.0200%
Building
175 19 LBNA Springdale NAP NAP NAP 0.0200%
Mall
176 20 LBNA Frontier NAP NAP NAP 0.0200%
Commons/
Global
Crossing
179 22 LBNA Watermark NAP NAP NAP 0.0200%
Office Building
183 23 LBNA Palm Haven NAP NAP NAP 0.0200%
Mobile Home
Park
186 25 LBNA Imperial Crown NAP NAP NAP 0.0200%
Center
199 27 LBNA Fountain Place NAP NAP NAP 0.0200%
Apartments
209 29 LBNA Almond Grand NAP Present Treasury 0.0200%
Gurnee Value Flat-
Maturity
225 30 LBNA Birchbrook NAP NAP NAP 0.0200%
Office Park
233 31 LBNA Kendall Manor NAP NAP NAP 0.0200%
Apartments
254 32 LBNA Wickiup NAP NAP NAP 0.0200%
Mobile Home
& RV Park
266 33 LBNA E. M. NAP NAP NAP 0.0200%
Jorgensen
Building
</TABLE>
M-4-17
<PAGE> 625
EXHIBIT B
CORPORATE REPRESENTATIONS AND WARRANTIES
The Seller hereby represents and warrants, as of the Closing Date, that:
(a) The Seller is a duly formed corporation, validly existing and in
good standing under the laws of Delaware. The principal place of business and
chief executive office of the Seller is located in the State of Connecticut.
(b) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
(c) This Agreement, assuming due authorization, execution and delivery
by the Purchaser, constitutes a valid, legal and binding obligation of the
Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(d) The execution and delivery of this Agreement by the Seller, and the
performance and compliance with the terms of this Agreement by the Seller, will
not violate the Seller's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or instrument to which
it is a party or which is applicable to it or any of its assets. Attached hereto
as Exhibit E are true, correct, and complete copies of the Seller's
organizational documents in effect as of the Closing Date.
(e) The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the Seller's
good faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(f) No litigation is pending or, to the best of the Seller's knowledge,
threatened against the Seller which would prohibit the Seller from entering into
this Agreement or, in the Seller's good faith and reasonable judgment, is likely
to materially and adversely affect either the ability of the Seller to perform
its obligations under this Agreement or the financial condition of the Seller.
(g) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals,
M-4-18
<PAGE> 626
authorizations and orders that previously have been obtained and those filings
and registrations that previously have been completed.
(h) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(i) The transfer of the Mortgage Loans by the Seller to the Purchaser,
as contemplated herein, is not subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(j) The Seller is not transferring the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud its present or future creditors.
(k) The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
(l) 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.
(m) 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.
(n) In connection with, and at the time of, its transfer of the
Mortgage Loans hereunder, the Seller will receive consideration constituting at
least reasonably equivalent value and fair consideration for the assets
transferred.
(o) The execution, delivery and performance of this Agreement by the
Seller constitute bona fide and arm's length transactions and are undertaken in
the ordinary course of business of the Seller.
(p) Seller is not a party to or bound by a written or oral agreement
granting to any person or entity an option or right of first refusal or other
arrangement to acquire directly or indirectly any of the Mortgage Loans.
(q) The transfer of the Mortgage Loans hereunder and the grant of any
security interest in accordance with Section 10 hereof are contemporaneous
exchanges.
(r) Neither SBMS VII nor the Trustee (i) is, or has ever been, an
insider or affiliate of the Seller, (ii) controls, or has ever controlled, the
Seller, (iii) is, or has ever been, controlled by the Seller, or (iv) is, or has
ever been, under common control with the Seller.
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<PAGE> 627
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
The Seller (with respect to each Mortgage Loan unless otherwise
indicated) hereby represents and warrants to SBMS VII and its successors and
assigns as provided in this Agreement (subject to the qualifications with
respect to matters of enforceability set forth below in the last paragraph of
this Exhibit C) that as of the date specified below or, if no such date is
specified, as of the date hereof, and as of the Closing Date and subject to the
exceptions disclosed on Schedule C-1 attached hereto:
(1) Mortgage Loan Characteristics. The information set forth in the
Mortgage Loan Schedule is true, correct and complete in all material respects;
provided, however, that with respect to the information set forth with respect
to each Mortgage Loan under the captions "Physical Occupancy %," "Occupancy As
of Date," "1998 NOI," "1999 NOI," "Underwritten NOI," "Underwritten Net Cash
Flow" and "Underwritten NOI DSCR," the Seller represents only that such
information is a correct and accurate reproduction or derivation, as adjusted by
the Seller in accordance with its customary underwriting practices and
procedures, of the information provided to it by the related Borrower (or an
affiliate or principal thereof) and takes no responsibility for the accuracy or
completeness of any such information provided by the related Borrower (or such
affiliate or principal); provided, further, that the Seller has no actual
knowledge that such information is incorrect, inaccurate or incomplete following
the reasonable and customary due diligence performed by the Seller in connection
with its origination or purchase of the Mortgage Loans.
(2) Domestic Borrower. The related Borrower is an individual who is a
citizen of, or an entity organized under the laws of, a state of the United
States of America.
(3) Single-Purpose, Bankruptcy Remote Entity. Each Borrower of a
Mortgage Loan in excess of $25,000,000 is an entity which has represented in
connection with the origination of the Mortgage Loan, and whose organizational
documents as of the date of origination of the Mortgage Loan provide that so
long as the Mortgage Loan is outstanding, it will be a single-purpose entity
whose activities and ability to incur debt are restricted by the applicable
Mortgage or the organizational documents in a manner intended to make the
likelihood of bankruptcy proceedings being commenced by or against such Borrower
remote, and as to which the Borrower has delivered an opinion of counsel
concerning substantive non-consolidation and as to which the Borrower has at
least one independent director. For this purpose, "single-purpose entity" shall
mean a Person, other than an individual, which does not engage in any business
unrelated to the related Mortgaged Property and its financing, does not have any
assets other than those related to its interest in such Mortgaged Property or
its financing, or any indebtedness other than as permitted by the related
Mortgage or the other Mortgage Loan documents, has its own books and records
separate and apart from any other Person and holds itself out as being a legal
entity, separate and apart from any other Person.
M-4-20
<PAGE> 628
(4) Delivery of Mortgage Loans Documents. The Seller has caused or will
cause to be delivered to the Purchaser (or its designee) within the time period
prescribed in Section 2 each of the documents comprising the Mortgage File for
such Mortgage Loan.
(5) Payment Current. All payments required to be made with respect to
such Mortgage Loan under the terms of the related Mortgage Note or the related
Mortgage (inclusive of any applicable grace or cure period) up to the Closing
Date have been made. Within the twelve months preceding the Closing Date, there
has not been any delinquency in excess of 30 days with respect to such Mortgage
Loan.
(6) Equity Participation or Participation Interest. Such Mortgage Loan
contains no equity participation by the Seller and is a whole loan and not a
participation interest. Neither the related Note nor the related Mortgage
provides for negative amortization, unless the Mortgage Loan is an ARD loan, or
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property. The Seller has no ownership interest in
such Mortgaged Property or the related Borrower other than in such Mortgage Loan
being sold and assigned. Neither the Seller nor any affiliate of the Seller has
any obligation to make any capital contributions to the related Borrower under
the Mortgage or any other related Mortgage Loan document.
(7) Compliance with Applicable Laws. As of the date of its origination,
such Mortgage Loan either complied with, or was exempt from, applicable federal
or state laws, regulations and other requirements pertaining to usury. To the
best of the Seller's knowledge, as of the date of origination of such Mortgage
Loan, the related originator complied in all material respects with the
requirements of any and all other federal, state or local laws applicable to the
origination, servicing and collection of such Mortgage Loan. No governmental or
regulatory approval or consent is required for the sale of such Mortgage Loan by
the Seller, and the Seller has full right, power and authority to sell such
Mortgage Loan. To the extent necessary to ensure the enforceability of such
Mortgage Loan and the effective sale, transfer and assignment thereof and of the
related Mortgage Note, the originator and/or the Seller and, if applicable, each
subsequent holder of the related Mortgage Note each was qualified and
appropriately licensed to transact business in the jurisdiction in which the
related Mortgaged Property is located at the time such entity had possession of
the related Mortgage Note.
(8) Proceeds Fully Disbursed. The proceeds of such Mortgage Loan have
been fully disbursed (although certain reserve accounts controlled by the Seller
may have been established as described in Schedule C-2), and there is no
requirement for future advances thereunder.
(9) Origination Expenses Paid. All costs, fees and expenses incurred in
connection with the origination and closing of such Mortgage Loan, including,
without limitation, recording costs and fees, have been paid to the appropriate
person or arrangements have been made for their payment to the appropriate
person on a timely basis by the related Borrower.
(10) Documents Valid. Each of the related Mortgage Note, the related
Mortgage and any other related Mortgage Loan document is the legal, valid and
binding
M-4-21
<PAGE> 629
obligation of the related Borrower, the related guarantor or other party
executing such document (subject to any non-recourse or partial recourse
provisions contained therein), and is enforceable in accordance with its terms.
There is no valid offset, defense, counterclaim or right of rescission with
respect to such Mortgage Note, Mortgage or any other Mortgage Loan document, nor
will the operation of any of the terms of such Mortgage Note or Mortgage, or the
exercise of any right thereunder, render either such Mortgage Note or Mortgage
unenforceable or subject to any valid offset, defense, counterclaim or right of
rescission, including, without limitation, the defense of usury, and the Seller
has no knowledge that any such offset, defense, counterclaim, or right of
rescission has been asserted or is available with respect thereto. Except as
described in the immediately following sentence, the related Mortgage Note and
the related Mortgage do not require the related mortgagee to release any portion
of the related Mortgaged Property except upon payment in full of such Mortgage
Loan or the exercise of a defeasance feature. In the case of certain Mortgaged
Properties securing cross-collateralized Mortgage Loans, certain Mortgage Loans
secured by multiple Mortgaged Properties, and certain Mortgage Loans secured by
one or more parcels constituting a single Mortgaged Property, the related
mortgagee may be required to release a Mortgaged Property or a portion thereof
upon payment of a portion of the related Mortgage Loan as specified in the
related Mortgage Loan documents.
(11) Assignment of Mortgage; Note Endorsement. The related Assignment
of Mortgage (but for the insertion of the name of the assignee and any related
recording information which is not yet available to the Seller) is or will be in
recordable form and constitutes or will constitute the Seller's legal, valid and
binding assignment to the Purchaser of the related Mortgage and any related
Assignment of Leases or assignment of Assignment of Leases. The Seller's
endorsement and delivery of the related Mortgage Note to the Purchaser in
accordance with the terms of this Agreement constitutes or will constitute the
Seller's legal, valid and binding assignment to the Purchaser of such Mortgage
Note, and together with the Seller's execution and delivery of such Assignment
of Mortgage to the Purchaser, legally and validly conveys or will convey all
right, title and interest of the Seller in such Mortgage Loan to the Purchaser.
Neither the related Mortgage Note nor the related Mortgage contain provisions
limiting the right or ability of Seller to assign, transfer and convey such
documents.
(12) Assignment of Leases. There exists as part of the related Mortgage
File an Assignment of Leases (either as a separate instrument or incorporated
into the related Mortgage); and such Assignment of Leases creates in favor of
the holder, a valid, perfected and (subject to the exceptions set forth in
paragraph 13 below) enforceable lien of the same priority as the related
Mortgage, in the property and rights described therein;
(13) First Lien. The related Mortgage is a legal, valid and enforceable
first lien on the related Mortgaged Property (including all buildings and
improvements on such Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems located in or annexed
to such buildings, and all additions, alterations and replacements made at any
time prior to the closing date of such Mortgage Loan with respect to the
foregoing, but excluding any related personal property) which Mortgaged Property
is free and clear of all liens and encumbrances having priority over or equal to
the first lien of such Mortgage, except for (a) the lien of current real estate
taxes and special assessments not yet delinquent or accruing interest or
penalties, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording of such Mortgage
which do not
M-4-22
<PAGE> 630
materially and adversely (i) affect the value of such Mortgaged Property as
security for such Mortgage Loan, or (ii) interfere with the related Borrower's
ability to make required interest and principal payments or to make use of such
Mortgaged Property for the intended purposes therefor, (c) leases and subleases
pertaining to such Mortgaged Property which the Seller did not require to be
subordinated to the lien of such Mortgage (provided that such leases and
subleases, if any, are with entities which are not affiliated with the Seller),
and (d) other matters which do not, individually or in the aggregate, materially
and adversely (i) affect the value of such Mortgaged Property as security for
such Mortgage Loan, or (ii) interfere with the related Borrower's ability to
make required principal and interest payments or to make use of such Mortgaged
Property for the intended purposes therefor. Subject to the foregoing
exceptions, the related Assignment of Leases has the same priority as the
related Mortgage.
(14) No Modification, Release or Satisfaction. Except by a written
instrument which has been delivered to the Purchaser or its designee as a part
of the related Mortgage File, (a) neither the related Note nor the related
Mortgage (including any amendments or supplements thereto included in the
related Mortgage File, none of which alter the information on the Mortgage Loan
Schedule or make any of the other representations in this Agreement untrue) has
been impaired, waived, modified, altered, satisfied, canceled or subordinated or
rescinded, (b) the related Mortgaged Property has not been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in any part, in each such event
in a manner which would materially interfere with the benefits of the security
intended to be provided by such Mortgage.
(15) Defeasance. A Mortgage Loan which permits defeasance provides
that, no earlier than the second anniversary of the Closing Date (or, in the
case of any Mortgage Loan included in its own Loan REMIC, no earlier than the
second anniversary of the "startup day" of such Loan REMIC), the related
Borrower may obtain the release of all or a portion of the related Mortgaged
Property from the lien of the related Mortgage upon the pledge to the Trustee of
non-callable U.S. Treasury or other non-callable U.S. government obligations
that provide for payments on or prior to all successive payment dates to
maturity (or, in the case of an ARD Loan, through the related Anticipated
Repayment Date) in the amounts due on such dates and upon the satisfaction of
certain other conditions. A Mortgage Loan that permits defeasance provides that
related Borrower is responsible for all reasonable costs incurred in connection
with the defeasance of any such Mortgage Loan and the release of the related
Mortgaged Property. A Mortgage Loan that permits defeasance provides that the
related Borrower is responsible for all cots incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgage
Property. A Mortgage Loan that permits defeasance requires that a first priority
perfected security interest opinion be provided and also requires the related
Borrower to provide either a REMIC opinion, as a condition to exercise of any
defeasance option or a written confirmation from the Rating Agencies indicating
that such defeasance will not result in a reduction, withdrawal or qualification
of the respective ratings of any outstanding Classes of Certificates. For all
loans with a Cut-off Date Balance over $5,000,000, as a condition to the
exercise of any defeasance option, either rating agency confirmation or lender
approval is required. In addition, the related Mortgage or other related
Mortgage Loan documents generally require the satisfaction of one or more of the
following conditions prior to the defeasance of the Mortgage Loan and release of
the related Mortgaged Property:
M-4-23
<PAGE> 631
(a) the related Borrower must provide the mortgagee with a prior
written notice of not less than 30 days;
(b) the related Borrower must either (i) deliver to the mortgagee or
the servicer of the Mortgage Loan, as the case may be, government
obligations described above in this Paragraph 15 or (ii) pay to the
mortgagee or the servicer of the Mortgage Loan, as the case may be, an
amount sufficient to purchase the government obligations described above in
this Paragraph 15;
(c) the related Borrower must deliver an officer's certificate to the
effect that all of its obligations with respect to the Mortgage Loan have
been satisfied and that the Mortgage Loan is not in default; and
(d) the related Borrower must undertake to provide such other
documents or information as the mortgagee may reasonably request in
connection with such defeasance.
(16) No Delinquent Taxes or Assessments. All tax or governmental
assessments, or installments thereof, which were due on or prior to the date of
origination had been paid as of such date and the Seller knows of no tax or
governmental assessment, or if payable in installments, any installment thereof,
which became due and owing thereafter and prior to the Closing Date in respect
of the related Mortgaged Property, which, if left unpaid, would be, or might
become, a lien on such Mortgaged Property having priority over the related
Mortgage which has become delinquent such that (a) such tax, assessment or
installment has commenced to accrue interest or penalties, or (b) the applicable
taxing authority may commence proceedings to collect such tax, assessment or
installment, as applicable.
(17) Escrow or Reserve Deposits. As of the Closing Date, the related
reserve account(s), if any, contain all escrow deposits and other payments
required by the terms of the related Mortgage Loan documents (inclusive of any
applicable grace or cure period) to be held by the Seller as of the Closing
Date. Pursuant to Section 2 hereof, the Seller is transferring all amounts on
deposit in the related reserve account(s) to the Purchaser, or to the extent not
being transferred to the Purchaser, all escrow deposits and other payments
required under the related Mortgage Note, the related Mortgage and any other
related Mortgage Loan documents have been applied in accordance with their
intended purposes by the related Mortgage Loan originator, the Seller or its
agent.
(18) No Third Party Advances. The Seller has not, directly or
indirectly, (a) advanced funds, (b) induced or solicited any payment from a
Person other than the related Borrower, or (c) to the Seller's knowledge,
received any payment other than from such Borrower, for the payment of any
amount required under the related Mortgage Note or the related Mortgage, except
for interest accruing from the date of such Mortgage Note or the date of
disbursement of the proceeds of such Mortgage Loan, whichever is later, to the
date which precedes by 30 days the first Due Date under such Mortgage Note.
(19) No Condemnation or Damages. To the best of the Seller's knowledge,
no proceedings for the total or partial condemnation of the related Mortgaged
Property (a) have
M-4-24
<PAGE> 632
occurred since the date as of which the appraisal relied upon in the origination
of such Mortgage Loan was prepared, or (b) are pending or threatened other than,
in each such case, proceedings as to partial condemnation which do not
materially and adversely affect the value of such Mortgaged Property as security
for such Mortgage Loan. To the best of Seller's knowledge, the related Mortgaged
Property is free of material damage. The related Mortgage requires that any
related condemnation award and/or insurance proceeds be applied either to the
restoration of the related Mortgaged Property or to the payment of the
outstanding principal balance of or accrued interest on such Mortgage Loan.
(20) No Mechanics' Liens. To the Seller's knowledge, the related
Mortgaged Property (excluding any related personal property) (a) is free and
clear of any mechanics' and materialmen's liens or liens in the nature thereof,
and (b) no rights are outstanding that, under applicable law, could give rise to
any of these types of liens, any of which liens are or may be prior to, or equal
with, the lien of the related Mortgage, except, with respect to clauses (a) and
(b) above in this Paragraph 20, those which are insured against by the related
lender's title insurance policy referred to in Paragraph 24 of this Exhibit C
below.
(21) Title Survey: Improvements; Separate Tax Parcels. The Seller has
delivered an as-built survey, a survey recertification, a site plan, a recorded
plat or the like with respect to the related Mortgaged Property which satisfied,
or the Seller otherwise satisfied, the requirements of the related title
insurance company for deletion of the standard general exceptions for
encroachments, boundary and other survey matters and for easements not shown by
the public records from the related title insurance policy, except with respect
to any related Mortgaged Property located in a jurisdiction (such as the State
of Texas where survey title insurance coverage is prohibited by law) in which
the exception for easements not shown by the public records could not be deleted
and such standard general exception is customarily accepted by prudent
commercial mortgage lenders in such jurisdiction. The property described in the
survey is the same as the Mortgaged Property described in the Mortgage and the
lender's title insurance policy. Except for encroachments and similar matters
which are inconsequential, do not materially and adversely affect the value of
such Mortgaged Property as security for such Mortgage Loan, or are insured
against by the related lender's title insurance policy described in Paragraph 24
of this Exhibit C below, surveys and/or title insurance obtained at the time of
the origination of such Mortgage Loan indicated or insured that (a) none of the
improvements which were included for the purpose of determining the appraised
value of such Mortgaged Property in the related appraisal obtained in connection
with of the origination of such Mortgage Loan lie outside the boundaries and
building restriction lines of such Mortgaged Property, and (b) no improvements
on adjoining properties encroach upon such Mortgaged Property. The related
Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related lender's title insurance policy. No
one other than the related Borrower, any guarantor or indemnitor, any tenants
under the requirements of tenant leases or (if it escrows real estate taxes) the
related mortgagee is obligated under the related Mortgage Loan documents to pay
real estate taxes on the Mortgaged Property.
(22) Title. The Seller has good and marketable title to and is the sole
and lawful owner and beneficial holder of such Mortgage Loan. The Seller has
full power, authority and legal right to sell and assign such Mortgage Loan
hereunder, is the sole mortgagee or beneficiary of record under the related
Mortgage and is transferring such Mortgage Loan to the
M-4-25
<PAGE> 633
Purchaser free and clear of any and all liens, encumbrances, participation
interests, pledges, charges or security interests of any nature encumbering such
Mortgage Loan.
(23) Compliance with Laws. To the best of the Seller's knowledge (based
upon a letter or letters from governmental authorities, a legal opinion, an
endorsement or endorsements to the related title insurance policy, a
representation of the related Borrower at the time of origination of such
Mortgage Loan or other information reasonably acceptable to the Seller based on
the Seller's underwriting standards at the time of its origination thereof), (a)
no improvements located on or forming a part of the related Mortgaged Property
are in violation of any applicable zoning and building laws or ordinances, (b)
the related Mortgaged Property complies with all other laws and regulations
pertaining to the use and occupancy thereof (excluding Environmental Laws which
are addressed in Paragraph 35 and Paragraph 36 below) and all applicable
insurance requirements, (c) such Borrower has obtained all inspections,
licenses, permits, authorizations, and certificates necessary for such
compliance, including, but not limited to, certificates of occupancy (if
available), and (d) the Seller has not received notification from any
governmental authority that such Mortgaged Property violates or does not comply
with such laws or regulations or is being used, operated or occupied unlawfully
or that such Borrower has failed to obtain such inspections, licenses, permits,
authorizations, or certificates, except for such violation or non-compliance (i)
which does not materially and adversely affect the value of such Mortgaged
Property as security for such Mortgage Loan or the use for which such Mortgaged
Property was intended at the time of origination of such Mortgage Loan, (ii)
which is specifically addressed by the appraiser in the determination of the
related appraised value in connection with the origination of such Mortgage
Loan, or (iii) for which a reserve account held for the Seller has been
established in an amount sufficient to pay for the estimated costs to correct
such violations or non-compliance.
(24) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy or, if an ALTA lender's title insurance
policy is unavailable, another state-approved form of lender's title insurance
policy issued in an amount not less than the stated principal amount of such
Mortgage Loan (after all advances of principal) insuring the Seller and its
successors and assigns that the related Mortgage is a valid first lien on the
related Mortgaged Property, subject only to exceptions described in Paragraph 13
of this Exhibit C above (or, if such a title insurance policy has not yet been
issued in respect of such Mortgage Loan, such a policy will be issued and is
currently evidenced by a pro forma or specimen policy or by a "marked-up"
commitment for title insurance which was furnished by the related title
insurance company for purposes of closing such Mortgage Loan). The premium for
such title insurance policy has been paid in full and such title insurance
policy is (or, when issued, will be) in full force and effect, and upon
endorsement and delivery of the related Mortgage Note to the Purchaser and
recording of the related Assignment of Mortgage in favor of the Purchaser in the
applicable real estate records, such title insurance policy will inure to the
benefit of the Purchaser. Such title insurance policy (a) does not contain the
standard general exceptions for encroachments, boundary or other survey matters
and for easements not shown by the public records, other than matters which do
not materially and adversely (i) affect the value of the related Mortgaged
Property as security for the Mortgage Loan, or (ii) interfere with the related
Borrower's ability to make required principal and interest payments or to make
use of such Mortgaged Property for the intended purposes, and (b) only contains
such exceptions for encroachments, boundary and other survey matters as are
customarily accepted by prudent
M-4-26
<PAGE> 634
commercial mortgage lenders. The Seller and its agents have not taken, or failed
to take, any action that would materially impair the coverage benefits of any
such title insurance policy. The Seller has not made any claim under such title
insurance policy.
(25) Insurance Related to Mortgaged Property. All improvements on the
related Mortgaged Property are insured by (a) a fire and extended perils
insurance policy providing coverage on a full replacement cost basis in an
amount not less than the lesser of (i) the full replacement cost of all
improvements to such Mortgaged Property (without deduction for depreciation),
and (ii) the outstanding principal balance of such Mortgage Loan, but in any
event in an amount sufficient to avoid the operation of any co-insurance
provisions contained in such insurance policy, which policy contains a standard
mortgagee clause naming the originator or the Seller and its successors as
additional insureds; (b) an insurance policy providing business interruption or
rental continuation coverage in an amount not less than the income anticipated
from 12 months of operations of such Mortgaged Property; (c) a comprehensive
general liability insurance policy in an amount not less than $1,000,000 per
occurrence; and (d) if any material improvement on such Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards under the National Flood Insurance Act of 1968, as
amended, a flood insurance policy providing coverage in an amount not less than
the lesser of (i) the stated principal amount of the related Mortgage Note, and
(ii) the maximum amount of insurance available under the Flood Disaster
Protection Act of 1973, as amended. As of the Closing Date, the insurance
premium for each such insurance policy shall have been paid or escrowed. Each
such insurance policy contains a clause providing that it is not terminable and
may not be reduced without 30 days' prior written notice to the mortgagee
(except that, in the event of nonpayment of insurance premiums, each such
insurance policy provides for termination upon not less than 10 days' prior
written notice), and no such notice has been received by the Seller. With
respect to each such insurance policy, the Seller has received a certificate of
insurance or similar document dated within the last 12 months to the effect that
such insurance policy is in full force and effect. The Seller has no knowledge
of any action, omission, misrepresentation, negligence or fraud which would
result in the failure of any such insurance policy. The related Mortgage Loan
documents require the related Borrower or a tenant of such Borrower to maintain
each such insurance policy at its expense, but authorizes the mortgagee to
maintain any such insurance policy at the related Borrower's expense upon such
Borrower's or such tenant's failure to do so (subject to any applicable notice
or cure periods). The related Mortgage and insurance policy require that any
related insurance proceeds, in excess of a specified amount, will be applied
either to the repair or restoration of all or part of the related Mortgaged
Property or to the payment of the outstanding principal balance of or accrued
interest on such Mortgage Loan.
(26) UCC Financing Statements. One or more Uniform Commercial Code
financing statements covering all furniture, fixtures, equipment and other
personal property (a) which are collateral under the related Mortgage or under a
security or similar agreement executed and delivered in connection with such
Mortgage Loan, and (b) in which a security interest can be perfected by the
filing of Uniform Commercial Code financing statement(s) under applicable law,
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law a security interest in such furniture,
fixtures, equipment and other personal property.
M-4-27
<PAGE> 635
(27) Default, Breach and Acceleration. There is no material default,
breach, violation or event of acceleration existing under the related loan
agreement, related Mortgage Note or the related Mortgage, and the Seller has no
knowledge of any event (other than failure to make payments due but not yet
delinquent) 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 thereunder; provided that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Exhibit C. The
Seller has no knowledge, after performing at the time of origination of the
related Mortgage Loan due diligence customarily performed by prudent commercial
lenders at the time of such origination, that the related Borrower is a debtor
in any state or federal bankruptcy or insolvency proceeding.
(28) Customary Provisions. The related Mortgage Note, the related
Mortgage, and the related Assignment of Leases, together with applicable state
law, contain customary and enforceable provisions (including, without
limitation, those relating to receivers) such as to render the rights and
remedies of the holder thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby, including realization by judicial or, if
applicable, non-judicial foreclosure.
(29) Access Routes. (a) Surveys, title insurance reports, the title
insurance policy or other relevant documents contained in the related Mortgage
File indicate that at the time of origination of such Mortgage Loan the related
Borrower had sufficient rights with respect to amenities, ingress and egress and
similar matters identified in the appraisal of the related Mortgaged Property
obtained in connection with the origination of such Mortgage Loan, as being
critical to the appraised value thereof, and (b) such Mortgaged Property was
receiving services from public or private water, sewer and other utilities that
were adequate as of the date that the Mortgage Loan was originated, and none of
such services is subject to revocation as a result of a foreclosure or change in
ownership of an adjacent property.
(30) Mortgage Loans Secured by Ground Lease but Not Fee Interest. With
respect to each Mortgage Loan that is secured in whole or in part by the
interest of the related Borrower as lessee under a ground lease of all or a
portion of the related Mortgaged Property (a "Ground Lease"), but the related
fee interest in the portion of such Mortgaged Property covered by such Ground
Lease (the "Fee Interest") is not subject or subordinate to the lien of the
related Mortgage, the Seller hereby represents and warrants that:
(a) as of the Closing Date, such Ground Lease is in full force and
effect, and such Ground Lease or a memorandum thereof has been duly
recorded in the applicable real estate records and (i) such Ground Lease
(or the related estoppel letter or lender protection agreement between the
Seller and related lessor) does not prohibit the interest of the related
lessee thereunder from being encumbered by the related Mortgage and does
not restrict the use of the related Mortgaged Property of such lessee in a
manner that would interfere with the related Borrower's ability to make
required principal and interest payments or to make use of such Mortgaged
Property for the intended purposes, or a separate written agreement
permitting such encumbrance has been obtained, and (ii) there have been no
material changes in the terms of such Ground Lease that would be
M-4-28
<PAGE> 636
binding on the mortgagee as successor to the lessee except as set forth in
written instruments which are part of the related Mortgage File;
(b) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances securing indebtedness which are superior to, or
of equal priority with, the related Mortgage, except for liens of current
real estate taxes and special assessments not yet delinquent or accruing
interest or penalties;
(c) the related lessee's interest in such Ground Lease may be
transferred to the Purchaser and its successors and assigns through a
foreclosure of the related Mortgage or conveyance in lieu of foreclosure
and, thereafter, may be transferred to another Person by the related
mortgagee and its successors and assigns, upon notice to, but without the
consent of, the related lessor (or, if any such consent is required, either
(i) it has been obtained prior to the Closing Date, or (ii) it may not be
unreasonably withheld), provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(d) the related lessor is required to give notice of any default under
such Ground Lease by the related lessee to the mortgagee either under the
terms of such Ground Lease or under the terms of a separate estoppel letter
or written agreement;
(e) the related mortgagee is entitled, under the terms of such Ground
Lease or a separate estoppel letter or written agreement, to receive notice
of any default by the related lessee under such Ground Lease, and after any
default notice, is entitled to not less than the time provided to the
related lessee under such Ground Lease to cure such default (which is, in
any event, a commercially reasonable time period), which is curable during
such period before the lessor may terminate the Ground Lease; all rights of
the related lessee under the Ground Lease may be exercised by or on behalf
of the mortgagee;
(f) the currently effective term of such Ground Lease (excluding any
extension or renewal which is not binding on the lessor thereunder) extends
not less than 20 years beyond the Stated Maturity Date of such Mortgage
Loan;
(g) such Ground Lease does not impose any restrictions on subletting
which the Seller considered to be commercially unreasonable at the time of
its origination or purchase of such Mortgage Loan or that a prudent
commercial mortgage lender would have considered unreasonable at such date;
(h) as of the Closing Date, (i) no event of default has occurred under
such Ground Lease and (ii) to Seller's knowledge, no event has occurred
which, with the passage of time, the giving of notice or both (other than
rental or other payments being due, but not yet delinquent), would result
in a default or an event of default under the terms of such Ground Lease;
(i) the related lessor has agreed in a writing included in the related
Mortgage File that such Ground Lease may not be amended, modified,
cancelled or
M-4-29
<PAGE> 637
terminated without the prior written consent of the Seller or the mortgagee
and that any such action without such consent is not binding upon the
mortgagee, its successors and assigns. Unless the mortgagee fails to cure a
default of the lessee under the Ground Lease following notice thereof from
the lessor as set forth in clause (e) of this Paragraph 30, the lessor is
required to enter into a new ground lease upon termination of such Ground
Lease for any reason (including, without limitation, rejection of such
Ground Lease in a bankruptcy proceeding);
(j) under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or taking) will be
applied either to (i) the repair or restoration of all or part of the
related Mortgaged Property covered by such Ground Lease, with the mortgagee
or a trustee appointed by it having the right to hold and disburse such
proceeds as such repair or restoration progresses (except where such
Mortgage Loan provides that the related Borrower or its agent may hold and
disburse such proceeds with respect to any loss or taking less than a
stipulated amount not greater than $50,000), or (ii) the payment of the
outstanding principal balance of and accrued interest on such Mortgage
Loan; and
(k) there are no existing mortgages on the Fee Interest which can be
foreclosed upon that are not subject to the Ground Lease, and the
provisions of the Ground Lease and/or other documents related thereto and
included as part of the related Mortgage File preclude the creation of any
future mortgage on the Fee Interest that can be foreclosed upon not subject
to the Ground Lease.
(l) except for fixed or determinable increases expressly set forth in
such Ground Lease, such Ground Lease does not permit any increase in the
amount of rent payable by the ground lessee during the term of the Mortgage
Loan.
(m) the terms of any related Ground Lease have not been waived,
modified, altered, satisfied, impaired, cancelled, subordinated, or
rescinded in any manner which materially interferes with the security
intended to be provided by the related Mortgage.
(31) Deed of Trust. With respect to any related Mortgage that is a deed
of trust or trust deed, a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and currently so serves or may be
substituted in accordance with applicable law. Except in connection with (a) a
trustee's sale after default by the related Borrower or (b) the release of the
related Mortgaged Property following the payment of the related Mortgage Loan in
full, no fees or expenses are payable by the Seller or the Purchaser to such
trustee.
(32) Cross-Security. The related Mortgaged Property is not collateral
or security for the payment or performance of (a) any other obligations owed to
the originator of such Mortgage Loan or the Seller other than another Mortgage
Loan being sold, transferred and assigned by the Seller under this Agreement, or
(b) to the Seller's knowledge, any other obligations owed to any Person other
than the Seller. The related Mortgage Note is not secured by any real property
other than a Mortgaged Property. Each related Mortgage does not provide
M-4-30
<PAGE> 638
or permit, without the prior written consent of the holder of the Mortgage Note,
each related Mortgaged Property to secure any other promissory note or
obligation, other than any other Mortgage Loan.
(33) Assignment of Leases. Except with respect to the related Mortgaged
Property or that portion of the related Mortgaged Property that is occupied by
the related Borrower, the related Mortgage Loan documents contain the provisions
of an Assignment of Leases or include a separate Assignment of Leases. Any
related Assignment of Leases incorporated within the related Mortgage or set
forth in a separate Mortgage Loan document creates on recordation (with the same
priority as the related Mortgage) a valid assignment of, or security interest
in, the right to receive all payments due under the related leases, if any.
(34) REMIC. (a) Such Mortgage Loan is principally secured by an
interest in real property and either (i) the fair market value of such real
property was at least equal to 80% of the adjusted issue price of such Mortgage
Loan on the date of origination of such Mortgage Loan or, if such Mortgage Loan
has been "significantly modified" within the meaning of Section 1001 of the
Code, on the date of such modification (unless such modification may be
disregarded under Treas. Reg. Sec. 1.860G-2(b)(3)), or (ii) substantially all of
the proceeds of such Mortgage Loan were used to acquire or improve or protect an
interest in real property that, at origination of such Mortgage Loan, was the
only security for such Mortgage Loan; (b) such Mortgage Loan contains no equity
participation by the Seller, and neither the related Mortgage Note nor the
related Mortgage provides for any contingent or additional interest in the form
of participation in the cash flow or proceeds realized on disposition of the
related Mortgaged Property; and (c) such Mortgage Loan is a "qualified mortgage"
as defined in, and for purposes of, Section 860G(3)(A) of the Code and provides
for the payments of interest at a fixed rate or at a rate described in Treas.
Reg. Sec. 1.860G-1(a)(3).
(35) Environmental Site Assessments. Environmental Site Assessments
(collectively, the "ESAs"), transaction screen assessments, studies or updates
prepared or obtained within [ ] months prior to the Closing Date in connection
with the origination of such Mortgage Loan identified no material adverse
environmental conditions or circumstances anticipated to require any material
expenditure with respect to any Mortgaged Property, except for: (a) those cases
where such conditions or circumstances were investigated further and, based upon
such additional investigation, a qualified environmental consultant recommended
no further investigation or remediation; (b) those cases in which an operations
and maintenance plan was recommended by the environmental consultant and such
plan was obtained or an escrow reserve established to cover the estimated costs
of obtaining such plan; (c) those conditions in which soil or groundwater
contamination was suspected or identified and either (i) such condition or
circumstance was remediated or abated prior to the date of closing of the
related Mortgage Loan, (ii) a "no further action" letter was obtained from the
applicable regulatory authority, or (iii) either an environmental insurance
policy was obtained, a letter of credit provided, an escrow reserve account
established, or an indemnity from the responsible party was obtained, to cover
the estimated costs of any required investigation, testing, monitoring or
remediation; or (d) those cases in which (i) a leaking underground storage tank
or groundwater contamination was identified to be located on or to have
originated from an offsite property, (ii) a responsible party has been
identified under applicable law, and (iii) either such condition is not known to
have affected the Mortgaged Property or the responsible party has either
received a "no
M-4-31
<PAGE> 639
further action" letter from the applicable regulatory agency, established a
remediation fund, or provided a guaranty or indemnity to the related Borrower.
(36) Notice of Environmental Problem. Other than with respect to any
conditions identified in the ESAs, transaction screen assessments, studies or
updates referred to in Paragraph 34 of this Exhibit C above, the Seller: (a) has
not received actual notice from any federal, state or other governmental
authority of (i) any failure of the related Mortgaged Property to comply with
any applicable Environmental Laws, or (ii) any known or threatened release of
Hazardous Materials on or from such Mortgaged Property in violation of any
applicable Environmental Laws; (b) has not received actual notice from the
related Borrower that (i) such Borrower has received any such notice from any
such governmental authority, (ii) such Mortgaged Property fails to comply with
any applicable Environmental Laws, or (iii) such Borrower has received actual
notice that there is any known or threatened release of Hazardous Materials on
or from such Mortgaged Property in violation of any applicable Environmental
Laws; or (c) has no actual knowledge that (i) the related Mortgaged Property
fails to materially comply with any applicable Environmental Laws or (ii) there
has been any known or threatened release of Hazardous Materials on or from such
Mortgaged Property where such release falls outside the exceptions (a) through
(d) of Paragraph 35 of this Exhibit C above.
(37) Recourse. The related Mortgage Loan documents contain standard
provisions providing for recourse against the related Borrower or a principal of
such Borrower for damages sustained in connection with the Borrower's fraud,
material misrepresentation or misappropriation of any tenant security deposits,
rent, insurance proceeds or condemnation proceeds. The related Mortgage Loan
documents contain provisions pursuant to which the related Borrower or a
principal of such Borrower has agreed to indemnify the mortgagee for damages
resulting from violations of any applicable Environmental Laws.
(38) Environmental Compliance. Each Mortgage Loan contains either a
representation, warranty or covenant that the related Borrower will not use,
cause or permit to exist on the related Mortgaged Property any Hazardous
Materials in violation of any applicable Environmental Laws or an indemnity with
respect to any such violation in favor of the Seller.
(39) Inspection. The Seller or originator has inspected the related
Mortgaged Property or caused such Mortgaged Property to be inspected within the
12 months preceding the Closing Date.
(40) Subordinate Debt. Except as has been disclosed in the Mortgage
Loan Schedule, the related Mortgage contains a provision for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan in the
event that the related Borrower encumbers the related Mortgaged Property without
the prior written consent of the mortgagee thereunder. At the time of
origination, the Mortgaged properties were not, and to the Seller's knowledge,
the Mortgaged Properties are not encumbered by any liens junior to the liens of
the related Mortgages. The Mortgage Loans do not permit the Borrowers to obtain
financing secured by the Mortgaged Properties that is subordinate to or of equal
priority with the lien of the Mortgage without lender's consent.
M-4-32
<PAGE> 640
(41) Common Ownership. To Seller's knowledge, no two properties
securing Mortgage Loans are directly or indirectly under common ownership except
to the extent that such common ownership and the ownership structure have been
specifically disclosed in Schedule C-3.
(42) Operating or Financial Statement. The related Mortgage Loan
documents require the related Borrower to furnish to the mortgagee at least
annually an operating statement (or a balance sheet and a statement of income
and expenses) with respect to the related Mortgaged Property or, in the case of
a borrower-occupied Mortgaged Property, a financial statement with respect to
the related Borrower.
(43) Litigation. To the best of the Seller's knowledge as of the date
of origination or purchase of such Mortgage Loan, and to the Seller's knowledge
thereafter, there is no pending action, suit, proceeding, arbitration or
governmental investigation with respect to the related Borrower or Mortgaged
Property which if determined adversely to the related Borrower would have a
material adverse effect on the value of the related Mortgaged Property or such
Borrower's ability to continue to perform its obligations under such Mortgage
Loan.
(44) ARD Loans. With respect to each Mortgage Loan that is an ARD Loan,
it commenced amortizing on its initial scheduled Due Date (or, in the case of
certain interest-only Mortgage Loans, as otherwise set forth in the related
Mortgage Notes) and provides that: (a) the spread used in calculating its
Mortgage Rate will increase by no more than five percent (5%) in connection with
the passage of its Anticipated Repayment Date; (b) its Anticipated Repayment
Date is of the term specified [in the Mortgage Loan Schedule] following the
origination of such Mortgage Loan; (c) no later than the related Anticipated
Repayment Date, if it has not previously done so, the related Borrower is
required to enter into a "lockbox agreement" whereby all revenue from the
related Mortgaged Property shall be deposited directly into a designated account
controlled by the Servicer; and (d) any cash flow from the related Mortgaged
Property that is applied to amortize such Mortgage Loan following its
Anticipated Repayment Date shall, to the extent such net cash flow is in excess
of the Monthly Payment payable therefrom, be net of budgeted and discretionary
(lender approved) capital expenditures.
(45) Due-on-Sale. The related Mortgage contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
mortgagee, the related Mortgaged Property subject to such Mortgage is directly
or indirectly transferred or sold; provided that certain of the Mortgages permit
(a) changes in ownership between existing partners and members, (b) transfers to
family members (or trusts for the benefit of family members), affiliated
companies and certain specified individuals and entities, (c) issuance by the
related borrower of new partnership or membership interests, (d) certain other
changes in ownership for estate planning purposes, or (e) certain other
transfers similar in nature to the foregoing that are consistent with customary
commercial lending practices.
(46) Loan Origination; Loan Underwriting. Each Mortgage Loan was
originated by the Seller, an affiliate of Seller or an originator approved by
the Seller, or was purchased by the related Seller, and each Mortgage Loan
substantially complied with all of the terms, conditions and requirements of the
Seller's underwriting standards in effect at the time of
M-4-33
<PAGE> 641
its origination or purchase of such Mortgage Loan, subject to such exceptions as
the Seller approved.
(47) Interest Accrual. Each related 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).
(48) Cut-off Date Balance. No Mortgage Loan, together with any other
Mortgage Loan made to the same Borrower or to an Affiliate of such Borrower,
represents more than 5% of the aggregate Cut-off Date Balance of the Mortgage
Pool.
(49) Due Date. The Due Date for each Mortgage Loan is scheduled to be
the first day of the month (or the following business day, if such first day is
not a business day).
(50) Appraisal. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of such Mortgage Loan. 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.
(51) No Release. No Mortgage Loan has been satisfied in full, and
except as expressly contemplated by the related loan agreement or other
documents contained in the related file, no material portion of the Mortgaged
Property has been released.
---------------------------
Each representation and warranty of the Seller set forth in this
Exhibit C, to the extent related to the enforceability of any instrument,
agreement or other document or as to offsets, defenses, counterclaims or rights
of rescission related to such enforceability, is qualified to the extent that
(a) enforcement may be limited (i) by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally as from time to time in effect, (ii) by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and (iii) by any applicable anti-deficiency law or statute; and (b)
such instrument, agreement or other document may contain certain provisions
which may be unenforceable in accordance with their terms, in whole or in part,
but the unenforceability of such provisions will not (subject to the
qualification in clause (a) above) (i) cause the related Mortgage Note or the
related Mortgage to be void in their entirety, (ii) invalidate the related
Borrower's obligation to pay interest at the stated interest rate of such
Mortgage Note on, and repay the principal of, the related Mortgage Loan in
accordance with the payment terms of such Mortgage Note, such Mortgage and other
written agreements delivered to the Seller in connection therewith, (iii)
invalidate the obligation of any related guarantor to pay guaranteed obligations
with respect to interest at the stated interest rate of such Note on, and the
principal of, such Mortgage Loan in accordance with the payment terms of such
guarantor's
M-4-34
<PAGE> 642
written guaranty, (iv) impair the mortgagee's right to accelerate and demand
payment of interest at the stated interest rate of such Mortgage Note on, and
principal of, such Mortgage Loan upon the occurrence of a legally enforceable
default, or (v) impair the mortgagee's right to realize against the related
Mortgaged Property by judicial or, if applicable, non-judicial foreclosure.
M-4-35
<PAGE> 643
SCHEDULE C-1
EXCEPTIONS TO THE MORTGAGE LOAN
REPRESENTATIONS AND WARRANTIES
13. First Lien; 24. Title Insurance
With respect to the Traders Tower - Self Park Loan, lender has no evidence of
the recording of a cross-easement agreement entered into subsequent to loan
closing that both benefits and burdens the mortgaged property. The
cross-easement agreement is not reflected in the title insurance policy as part
of the insured estate and is not reflected as a title exception in such policy.
30. Mortgage Loans Secured by Ground Lease But Not Fee Interest
With respect to the 29200 Northwestern Highway Loan that is secured in part by
the Borrower's leasehold interest pursuant to a ground lease, the terms of the
related ground lease are not subject or subordinate to the lien of the related
Mortgage. Further, the Seller hereby amends Sections 30(a), 30(c) through 30(g)
and 30(i) through 30(m) to read as follows with respect to such ground lease:
a) Neither the ground lease nor a memorandum thereof has been recorded in
the applicable real estate records. The ground lease documents in the related
Mortgage File do not prohibit the interest of the related lessee thereunder from
being encumbered by the related Mortgage, nor do they restrict the use of the
related Mortgaged Property of such lessee in a manner that would interfere with
the related Borrower's ability to make required principal and interest payments
or to make use of such Mortgaged Property for the intended purposes. To the
Seller's knowledge, the ground lease is in full force and effect, and there have
been no material changes in the terms of such Ground Lease that would be binding
on the mortgagee as successor to the lessee except as set forth in written
instruments which are part of the related Mortgage File.
c) The ground lease documents in the related Mortgage File do not prohibit
the transfer of the related lessee's interest to the Purchaser and its
successors and assigns through a foreclosure of the related Mortgage or
conveyance in lieu of foreclosure or the transfer thereafter to another Person
by the related mortgagee and its successors and assigns without the consent of
the related ground lessor.
d) The ground lease documents in the related Mortgage File do not require
the related lessor to give notice of any default under such Ground Lease by the
related lessee to the mortgagee.
e) The terms of the ground lease do not require that the related mortgagee
receive notice of any default by the related lessee under such ground lease, nor
does such ground lease provide time for such mortgagee to cure a default by the
lessee.
f) The ground lease is a month-to-month lease.
M-4-36
<PAGE> 644
g) The terms of the ground lease do not prohibit subletting.
i) The ground lease documents contained in the Mortgage File do not require
that the lessor obtain the prior written consent of the mortgagee to an
amendment, modification, cancellation or termination of the ground lease. The
ground lease documents do not require the ground lessor to enter into a new
ground lease with the mortgagee upon termination of the existing ground lease
for any reason.
j) The terms of the ground lease do not prohibit that any related insurance
proceeds or condemnation award (other than in respect of a total or
substantially total loss or taking) will be applied either to (i) the repair or
restoration of all or part of the related Mortgaged Property covered by such
ground lease, with the mortgagee or a trustee appointed by it having the right
to hold and disburse such proceeds as such repair or restoration progresses
(except where such Mortgage Loan provides that the related Borrower or its agent
may hold and disburse such proceeds with respect to any loss or taking less than
a stipulated amount not greater than $50,000), or (ii) the payment of the
outstanding principal balance of and accrued interest on such Mortgage Loan.
k) To Seller's knowledge, there are no existing mortgages on the Fee
Interest which can be foreclosed upon that are not subject to the ground lease.
The provisions of the ground lease documents contained in the related Mortgage
File do not preclude the creation of any future mortgage on the Fee Interest
that can be foreclosed upon not subject to the ground lease.
l) The ground lease documents contained in the Mortgage File do not permit
any increase in the amount of rent payable by the lessee during the term of the
Mortgage Loan.
m) To Seller's knowledge, the terms of the ground lease have not been
waived, modified, altered, satisfied, impaired, cancelled, subordinated or
rescinded in any manner which materially interferes with the security intended
to be provided by the related Mortgage, except as expressly set forth in the
ground lease documents contained in the Mortgage File.
At closing, the borrower funded a $100,000 cash escrow and delivered a
$250,000 letter of credit as additional security for the Mortgage Loan in
anticipation of the borrower's purchase in fee of the ground leased portion of
the Mortgaged Property.
49. Due Date
With respect to the Mabek CO. L.P. Loan, the Due Date is scheduled to be
the fifth day of the month, and there is no applicable grace period.
M-4-37
<PAGE> 645
SCHEDULE C-2
RESERVE ACCOUNTS CONTROLLED BY SELLER
<PAGE> 646
SCHEDULE C-2
PROPERTIES UNDER COMMON OWNERSHIP
<PAGE> 647
EXHIBIT D-1
FORM OF CERTIFICATE OF A SECRETARY
OR ASSISTANT SECRETARY OF THE SELLER
Certificate of Assistant Secretary of [ ]
I, [_____________], hereby certify that I am a duly elected and acting
Assistant Secretary of [_____________] (the "Company"), and certify further as
follows:
The Company is a ______________ duly organized and validly existing under
the laws of ____________;
Attached hereto as Exhibit A is a true, correct and complete copy of the
organizational documents of the Company, as in full force and effect on the date
hereof;
Attached hereto as Exhibit B is a certificate of the [Secretary of State of
the State of ____________] [Comptroller of the Currency], issued within [ten]
days of the date hereof with respect to the good standing of the Company;
Since the date of the certificate of good standing referred to in clause 3
above, the Company has not received any notification from the [Secretary of
State of the State of ____________] [Comptroller of the Currency], or from any
other source, that the Company is not in good standing in ____________;
Attached hereto as Exhibit C are the resolutions of the board of directors
of the Company authorizing the transactions contemplated by the Mortgage Loan
Purchase Agreement dated as of December __, 2000 (the "Mortgage Loan Purchase
Agreement"), between Salomon Brothers Mortgage Securities VII, Inc. ("SBMS VII")
and the Company, including the sale of the subject mortgage loans (the "Mortgage
Loans") by the Company to SBMS VII. Such resolutions are in full force and
effect on the date hereof and are not in conflict with any other resolutions of
the board of directors of the Company in effect on the date hereof.
The Mortgage Loans do not constitute all or substantially all of the assets
of the Company.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Company are pending or contemplated; and
Each person who, as an officer or representative of the Company, signed (a)
the Mortgage Loan Purchase Agreement, (b) the Indemnification Agreement referred
to in the Mortgage Loan Purchase Agreement (the "Indemnification Agreement"),
and (c) any other document or certificate delivered on or before the date hereof
in connection with the transactions contemplated by the foregoing documents,
was, at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such
M-4-38
<PAGE> 648
officer or representative, and the signature of such persons appearing on such
documents are their genuine signatures.
Capitalized terms used but not otherwise defined herein have the respective
meanings assigned to them in the Mortgage Loan Purchase Agreement and, if not
defined therein, then in the Indemnification Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name as of __________,
2000.
By:
---------------------------------
Name:
Title: [Assistant] Secretary
The undersigned, an officer of the Company hereby certifies that
_____________ is the duly elected and qualified and acting [Assistant] Secretary
of the Company and that the signature appearing above is his/her genuine
signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of December ___,
2000.
By:
----------------------------------
Name:
Title:
M-4-39
<PAGE> 649
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
In connection with the execution and delivery by _____________ (the
"Company") of, and the consummation of the transactions contemplated by, that
certain Mortgage Loan Purchase Agreement dated as of December __, 2000 (the
"Mortgage Loan Purchase Agreement"), between Salomon Brothers Mortgage
Securities VII, Inc. ("SBMS VII") and the Company, the Company hereby certifies
that (i) its representations and warranties set forth in the Mortgage Loan
Purchase Agreement and in the Indemnification Agreement referred to in the
Mortgage Loan Purchase Agreement (the "Indemnification Agreement"; and, together
with the Mortgage Loan Purchase Agreement, the "Agreements"), are true and
correct in all material respects at and as of the date hereof (or, in the case
of the representations an warranties set forth in Exhibit C of the Mortgage Loan
Purchase Agreement, as of such other date specifically provided in the
particular representation and warranty) with the same effect as if made on the
date hereof (or, in the case of the representations and warranties set forth in
Exhibit C of the Mortgage Loan Purchase Agreement, on such other date
specifically provided in the particular representation and warranty), and (ii)
it has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Mortgage Loan Purchase
Agreement to be performed or satisfied at or prior to the date hereof.
Capitalized terms used but not otherwise defined herein have the respective
meanings assigned to them in the Mortgage Loan Purchase Agreement and, if not
defined therein, then in the Indemnification Agreement.
Certified this ___ day of December, 2000.
By:
----------------------------------
Name:
Title:
M-4-40
<PAGE> 650
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL
TO THE SELLER
December 12, 2000
TO THE PARTIES LISTED ON ATTACHED SCHEDULE A
Re: Mortgage Loan Purchase
Ladies and Gentlemen:
I am Senior Counsel of ABN AMRO North America, Inc., an affiliate of LaSalle
Bank National Association (the "Bank"), and as such, I am familiar with that
certain Mortgage Loan Purchase Agreement (the "Agreement") dated as of December
12, 2000 between the Bank and Salomon Brothers Mortgage Securities VII, Inc.
Terms used herein without definition shall have the meanings given such terms in
the Agreement.
I have examined executed counterparts of the Agreement and such other documents,
opinions and certificates as I have deemed necessary or appropriate to render
this opinion. In making such examination of documents, I have assumed that the
parties to documents requiring execution and delivery, other than the Bank, have
the power to enter into and perform all of their respective obligations
thereunder, and I have also assumed the due authorization by, and the due
execution and delivery of, such documents by each such party.
Based upon the foregoing and my examination of such other matters of fact and
law as I deem appropriate to the opinions expressed herein, I am of the opinion
that:
1. The Bank is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of America.
2. The execution, delivery and performance by the Bank of the Agreement is
within the power of the Bank and has been duly authorized by all necessary
action on the part of the Bank, and neither the consummation of the transactions
contemplated therein nor the fulfillment of the terms thereof will conflict with
or constitute a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Bank pursuant to, any
contract, indenture, mortgage, or other instrument to which the Bank is a party
or by which it may be bound of which I am aware, nor will such action result in
any violation of the provisions of the articles of association or bylaws of the
Bank, or any statute, rule or regulation to which the Bank is subject or by
which it is bound or any writ, injunction or decree of any court, governmental
authority or regulatory body to which it is subject or by which it is bound of
which I am aware.
M-4-41
<PAGE> 651
December 12, 2000
Page 2
3. There is no action, suit or proceeding of which I am aware before or by
any court or governmental agency or body, domestic or foreign, now pending or to
the best of my knowledge, threatened against the Bank which might result in any
material adverse change in the financial condition, earnings, affairs or
business of the Bank, or which might materially and adversely affect the
properties or assets thereof or might materially and adversely affect the
performance by the Bank of its obligations under, or the validity or
enforceability of, the Agreement.
4. To my knowledge, the Bank is not in default with respect to any order
or decree of any court or any order, regulation or decree of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect its ability to perform its obligations
under the Agreement.
5. To my knowledge, no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by the Bank of or compliance by the Bank with the Agreement or the
consummation of the transactions contemplated by the Agreement, other than those
which have been obtained by the Bank or which the failure to obtain would not
materially and adversely affect its ability to perform its obligations under the
Agreement.
I am a member of the bar of the State of Illinois and, do not express any
opinion with respect to the laws of any jurisdiction other than the State of
Illinois and the Federal Law of the United States of America.
This opinion is solely for your benefit and that of Mayer, Brown & Platt, 190
South LaSalle Street, Chicago, Illinois, and may not be relied upon, nor may
copies be delivered to, any other person without the written consent of the
undersigned.
Sincerely
Kirk P. Flores
KPF:mc
M-4-42
<PAGE> 652
SCHEDULE A
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
M-4-43
<PAGE> 653
EXHIBIT D-3B
FORM OF OPINION OF MAYER BROWN & PLATT,
SPECIAL COUNSEL TO THE SELLER
December 12, 2000
Salomon Brothers Mortgage Securities VII, Inc.
Salomon Smith Barney Inc.
Greenwich Capital Markets, Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
Re: Series 2000-C3 Commercial Mortgage Pass-Through Certificates
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as special
counsel to LaSalle Bank National Association (in such capacity, "LaSalle"), in
relation to that certain Mortgage Loan Purchase Agreement, dated as of December
12, 2000 (the "Mortgage Loan Purchase Agreement"), between LaSalle, as seller,
and Salomon Brothers Mortgage Securities VII, Inc., as purchaser (the
"Purchaser"), relating to the sale by LaSalle of certain fixed rate commercial
and multifamily mortgage loans (the "Mortgage Loans") to the Purchaser.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Mortgage Loan Purchase Agreement.
Pursuant to a certain Pooling and Servicing Agreement, dated as of
December 1, 2000 (the "Pooling and Servicing Agreement") among the Purchaser, as
depositor, Midland Loan Services, Inc., as master servicer Lennar Partners,
Inc., as special servicer, Wells Fargo Bank Minnesota, N.A., as trustee (the
"Trustee") and LaSalle Bank National Association, as certificate administrator
and tax administrator, the Purchaser will transfer the Mortgage Loans, along
with certain other fixed rate commercial and multifamily mortgage loans, to the
Trustee to establish a trust fund (the "Trust Fund"), and the Trust will issue
the Commercial Mortgage Pass-Through Certificates, Series 2000-C3 (the
"Certificates") representing interests in the Trust Fund. Eighteen classes of
Certificates representing beneficial interests in the Trust Fund will be issued
pursuant to the Pooling and Servicing Agreement, (i) the Class A-1, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates (the "Public
Certificates") and (ii) the Class X, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class R and Class Y Certificates (the "Private
Certificates").
This opinion is being delivered pursuant to Sections 7(i) and 7(k) of
the Mortgage Loan Purchase Agreement.
M-4-44
<PAGE> 654
December 12, 2000
Page 2
In rendering this opinion, we have examined and relied upon executed
copies of the Mortgage Loan Purchase Agreement, the Pooling and Servicing
Agreement and originals or copies, certified or otherwise identified to our
satisfaction, of such certificates and other documents as we have deemed
appropriate for the purposes of rendering this opinion. We have examined and
relied upon, among other things, the documents and opinions delivered to you at
the closing being held today relating to the Certificates, as well as (a) the
Prospectus (the "Base Prospectus") and the related Prospectus Supplement (the
"Prospectus Supplement", and together with the Base Prospectus, the
"Prospectus"), each dated December 12, 2000, relating to the Public Certificates
in the form they were filed pursuant to Rule 424(b) promulgated under the
Securities Act of 1933, as amended, and (b) the Private Placement Memorandum,
dated December 12, 2000 (the "Memorandum"), relating to the Private Certificates
(other than the Class R and Class Y Certificates).
In conducting our examination, we have assumed, without investigation,
the legal capacity of all natural persons, the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such latter
documents. We have, with your permission, also relied upon the opinion of even
date herewith of Kirk P. Flores, Senior Counsel of ABN AMRO North America, Inc.,
an affiliate of LaSalle, addressed to you. As to any facts material to the
opinions expressed herein which were not independently established or verified,
we have relied upon oral or written statements and representations of officers
and other representatives of LaSalle and others.
We are members of the bar of the State of New York and do not purport
to be experts on or to express any opinion herein concerning any laws other than
the laws of the State of New York and the federal laws of the United States of
America. We express no opinion herein as to the laws of any other jurisdiction.
Based upon the matters stated herein and upon such investigation as we
have deemed necessary, we are of the opinion that the Mortgage Loan Purchase
Agreement, upon due authorization, execution and delivery by the Purchaser, will
constitute a valid and binding agreement of LaSalle, enforceable against LaSalle
in accordance with its terms, except as enforceability may be limited by (a)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization,
fraudulent conveyance, fraudulent transfer or other similar laws relating to or
affecting the enforcement of creditors' rights generally or the rights of
creditors of banks, (b) general principles of equity and public policy
considerations, whether enforcement is sought in a proceeding in equity or at
law or (c) by principles of reasonableness, good faith and fair dealing.
M-4-45
<PAGE> 655
December 12, 2000
Page 3
In rendering the opinion expressed above, we express no opinion
regarding any severability provision in the Mortgage Loan Purchase Agreement. We
also express no opinion as to the enforceability under certain circumstances of
provisions, indemnifying a party against liability or requiring contribution
from a party for liability to the extent that any such provision may be deemed
to cover matters under Federal securities laws or where such indemnification or
contribution is contrary to public policy. The opinion expressed above is
subject to the further qualification that certain of the remedial provisions in
the Mortgage Loan Purchase Agreement may be limited or rendered ineffective or
unenforceable in whole or in part under the laws of the State of New York (but
the inclusion of such provisions, subject to the immediately preceding sentence
and clauses (a), (b) and (c) of the preceding paragraph, does not make the
remedies provided by the Mortgage Loan Purchase Agreement inadequate for the
practical realization of the rights and benefits purported to be provided
thereby, except for the economic consequences of procedural or other delay).
We also express no opinion as to (i) any provision relating to
jurisdiction or service of process other than in respect of the courts of the
State of New York, (ii) any forum selection or waiver of venue or waiver of jury
trial provision, or (iii) whether a federal or state court or inside of the
State of New York would give effect to the choice of law provided in the
Agreement.
Except as set forth below, we have not ourselves checked the accuracy
or completeness of, or otherwise independently verified, the information
furnished with respect to the Prospectus Supplement or the Memorandum. As you
are aware, except for our review of copies of certain Mortgage Loan Documents,
generally including the Mortgage Note, the Mortgage and the title insurance
policy for the Mortgage Loans provided by LaSalle and identified on Schedule I
attached hereto, we did not examine or review the Mortgage Loan Files relating
to the Mortgage Loans, although we did review the asset summaries and loan
committee presentations (collectively, the "Asset Summaries") furnished and
prepared by LaSalle with respect to the Mortgage Loans sold under the Mortgage
Loan Purchase Agreement. We did not, however, with your permission, check the
accuracy or completeness of or otherwise independently verify the information
contained in the Asset Summaries. Moreover, we note that we were advised by
LaSalle in connection with our review of the Asset Summaries that such Asset
Summaries were summaries only, and in certain instances being continually
updated and corrected and were not intended to be relied on for a complete legal
description of each Mortgage Loan.
In the course of the preparation by the Purchaser of the Prospectus
Supplement and the Memorandum, we have participated in conferences with certain
officers of LaSalle, the Purchaser, counsel to the Purchaser and your
representatives, during which the contents of the Prospectus Supplement and the
Memorandum and related matters were discussed and, at your
M-4-46
<PAGE> 656
December 12, 2000
Page 4
request we have reviewed the information contained in the Prospectus Supplement
(other than the financial and statistical information presented in tabular form)
under the headings "Summary of the Prospectus Supplement -- The Mortgage Pool,"
"Risk Factors -- Risks Related to the Underlying Mortgage Loans" and
"Description of the Mortgage Pool," in each case to the extent it relates to
LaSalle and the Mortgage Loans (collectively, the "Selected Information"). On
the basis of the discussions and limited review referred to above, although we
are not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Prospectus
Supplement and the Memorandum, and without independent check or verification of
the Selected Information except as stated, no facts have come to our attention
that causes us to believe that the Selected Information set forth in either the
Prospectus Supplement or the Memorandum (other than financial and statistical
data included or not included therein or incorporated by reference therein, as
to which we express no opinion), as of its issue date or at the date hereof,
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Whenever our opinion with respect to the existence or absence of facts
is indicated to be based on our knowledge or awareness, we are referring to the
actual knowledge of the Mayer, Brown & Platt attorneys who have represented you
in connection with the transactions contemplated by the Agreements. Except as
expressly set forth herein, we have not undertaken any independent investigation
to determine the existence or absence of such facts and no inference as to our
knowledge concerning such facts should be drawn from the fact that such
representation has been undertaken by us.
This letter is limited to the specific issues addressed herein and the
opinion rendered above is limited in all respects to laws and facts existing on
the date hereof. By rendering this opinion, we do not undertake to advise you
with respect to any other matter or of any change in such laws or facts or in
the interpretations of such laws which may occur after the date hereof.
We are furnishing this opinion to you solely for your benefit. This
opinion is not to be used, circulated, quoted or otherwise referred to for any
other purpose, except that the persons listed on Exhibit A hereto may rely upon
this opinion to the extent set forth on Exhibit A in connection with their
rating of the Certificates to the same extent as if this opinion had been
addressed to them.
Very truly yours,
M-4-47
<PAGE> 657
December 12, 2000
Page 5
Mayer, Brown & Platt
DC/JAJ
M-4-48
<PAGE> 658
SCHEDULE I
TO
MAYER, BROWN & PLATT OPINION
LaSalle Loan Number Property Name
------------------- -------------
M-4-49
<PAGE> 659
EXHIBIT A
TO
MAYER, BROWN & PLATT OPINION
PERSONS WHO MAY RELY UPON THE OPINION RENDERED
IN THE FIFTH FULL PARAGRAPH ON PAGE 2 OF THE
OPINION LETTER TO WHICH THIS EXHIBIT IS ATTACHED
Moody's Investor's Service, Inc.
Standard & Poor's Ratings Services, a division of the McGraw Hill Companies,
Inc.
M-4-50
<PAGE> 660
EXHIBIT N
SCHEDULE OF DESIGNATED SUB-SERVICERS
[SEE ATTACHED SCHEDULE]
<PAGE> 661
<TABLE>
<CAPTION>
RETAINED
CUT-OFF SUB-SERVICING
CONTROL NUMBER LOAN NUMBER LOAN / PROPERTY NAME DATE BALANCE FEE RATE
<S> <C> <C> <C> <C>
104 03-0812051 Westland Meadows 22,714,214.38 0.0500%
106 6603559 149 New Montgomery Street 18,809,602.27 0.0400%
112 11483 Pacific Plaza 16,426,642.13 0.0700%
113 6603432 Seatac Village Shopping Center 16,087,967.31 0.0750%
118 6604594 85 Devonshire Street/258-262 Washington Street 13,650,000.00 0.0700%
122 03-0810402 Simchik Four Property Portfolio 9,975,377.47 0.0600%
122a 03-0810402a 100 Market Street
122b 03-0810402b 9 Executive Park Drive
122c 03-0810402c 1255 South Willow Street
122d 03-0810402d 135 Daniel Webster Highway
129 11312 Burlington Self Storage 7,984,459.40 0.0700%
130 11358 Boynton Plaza 7,679,220.02 0.0700%
132 10511 Garden Ridge 7,095,636.48 0.0700%
133 2010092 300 West Pratt Street 7,018,345.03 0.0700%
134 2010093 The GTE Building 6,877,665.29 0.0700%
135 2010096 Hamlin Court 6,810,392.89 0.0700%
140 16 Horizon Health Center 5,836,517.68 0.0400%
145 6603550 Arlington Heights Apartments 5,541,084.10 0.0900%
149 6604949 Villa de Mission East 5,178,495.88 0.0750%
150 9911010085 Calaveras Landing Shopping Center 5,173,541.50 0.0700%
151 1010091 Healtheon 5,145,165.22 0.0700%
156 6605190 Town Green at Wilton Center 4,907,937.15 0.1250%
158 6603687 Tivoli Gardens Apartments 4,369,641.03 0.0800%
163 6604565 Franklinton Square Shopping Center 4,183,599.97 0.1000%
165 11432 Greenhill Corporate Center 4,089,787.90 0.0700%
169 6603484 The Cascades 3,963,919.71 0.0900%
181 9910010082 Lafayette Business Park 3,383,354.91 0.0700%
182 11573 Arrow Business Center 3,246,693.32 0.0700%
183 23 Palm Haven Mobile Home Park 3,192,703.97 0.0600%
187 HHCC0064 Fran Murphy Building 3,044,546.48 0.0600%
192 10896 Weatherbridge Center Buildings II and III 2,842,834.15 0.0700%
194 9904010054 1201 Sharp Street 2,758,739.76 0.0700%
199 27 Fountain Place Apartments 2,525,985.85 0.0600%
207 6605277 Broadway Plaza Building 2,394,273.84 0.0900%
211 HHCC0063 Peppertree Apartments 2,363,873.79 0.0600%
229 6605203 Mini-City Self Storage 1,664,338.67 0.0900%
233 31 Kendall Manor Apartments 1,496,527.07 0.0600%
254 32 Wickiup Mobile Home & RV Park 1,133,070.73 0.0600%
</TABLE>
<TABLE>
<CAPTION>
NG
CONTROL NUMBER LOAN NUMBER LOAN / PROPERTY NAME SUB-SERVICER
<S> <C> <C> <C>
104 03-0812051 Westland Meadows Bernard Financial
106 6603559 149 New Montgomery Street LJ Melody & Company, Inc.
112 11483 Pacific Plaza Continental Wingate
113 6603432 Seatac Village Shopping Center LJ Melody & Company, Inc.
118 6604594 85 Devonshire Street/258-262 Washington Street LJ Melody & Company, Inc.
122 03-0810402 Simchik Four Property Portfolio Meredith & Grew
122a 03-0810402a 100 Market Street
122b 03-0810402b 9 Executive Park Drive
122c 03-0810402c 1255 South Willow Street
122d 03-0810402d 135 Daniel Webster Highway
129 11312 Burlington Self Storage Continental Wingate
130 11358 Boynton Plaza Continental Wingate
132 10511 Garden Ridge Continental Wingate
133 2010092 300 West Pratt Street Continental Wingate
134 2010093 The GTE Building Continental Wingate
135 2010096 Hamlin Court Continental Wingate
140 16 Horizon Health Center Bernard Financial
145 6603550 Arlington Heights Apartments LJ Melody & Company, Inc.
149 6604949 Villa de Mission East Holliday Fenoglio Fowler, L.P.
150 9911010085 Calaveras Landing Shopping Center Continental Wingate
151 1010091 Healtheon Continental Wingate
156 6605190 Town Green at Wilton Center Holliday Fenoglio Fowler, L.P.
158 6603687 Tivoli Gardens Apartments Financial Federal Savings Bank
163 6604565 Franklinton Square Shopping Center GMAC Commercial Mortgage Corp.
165 11432 Greenhill Corporate Center Continental Wingate
169 6603484 The Cascades LJ Melody & Company, Inc.
181 9910010082 Lafayette Business Park Continental Wingate
182 11573 Arrow Business Center Continental Wingate
183 23 Palm Haven Mobile Home Park Bloomfield Servicing
187 HHCC0064 Fran Murphy Building Huntoon Hastings Capital Corp.
192 10896 Weatherbridge Center Buildings II and III Continental Wingate
194 9904010054 1201 Sharp Street Continental Wingate
199 27 Fountain Place Apartments Bloomfield Servicing
207 6605277 Broadway Plaza Building LJ Melody & Company, Inc.
211 HHCC0063 Peppertree Apartments Huntoon Hastings Capital Corp.
229 6605203 Mini-City Self Storage LJ Melody & Company, Inc.
233 31 Kendall Manor Apartments Bloomfield Servicing
254 32 Wickiup Mobile Home & RV Park Bloomfield Servicing
</TABLE>
N-1
