MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 10,
2001 (the "Agreement"), is entered into between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital
Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc. (each, a "Seller" and together,
the "Sellers") and First Union Commercial Mortgage Securities, Inc. (the
"Purchaser").
Each Seller intends to sell and the Purchaser intends to
purchase certain multifamily and commercial mortgage loans (the "Mortgage
Loans") identified on the schedule (the "Mortgage Loan Schedule") annexed hereto
as Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of the
Cut-Off Date, among the Purchaser as depositor, First Union National Bank as
master servicer (in such capacity, the "Master Servicer"), Lennar Partners,
Inc., as special servicer (in such capacity, the "Special Servicer"), and ▇▇▇▇▇
Fargo Bank Minnesota, N.A., as trustee (the "Trustee"). Capitalized terms used
but not defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
Each Seller agrees to sell, and the Purchaser agrees to
purchase, the Mortgage Loans identified on the Mortgage Loan Schedule. The
Mortgage Loan Schedule may be amended to reflect the actual Mortgage Loans
delivered to the Purchaser pursuant to the terms hereof. The Mortgage Loans are
expected to have an aggregate principal balance of $349,072,925 (the "▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Loan Balance") (subject to a variance of plus or minus 5.0%) as
of the close of business on the Cut-Off Date, after giving effect to any
payments due on or before such date, whether or not such payments are received.
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Loan Balance, together with the aggregate principal
balance of the Other Mortgage Loans as of the Cut-Off Date (after giving effect
to any payments due on or before such date whether or not such payments are
received), is expected to equal an aggregate principal balance (the "Cut-Off
Date Pool Balance") of $1,002,714,150, including the Rite Aid Subordinate
Balance (subject to a variance of plus or minus 5%). The purchase and sale of
the Mortgage Loans shall take place on June 11, 2001 or such other date as shall
be mutually acceptable to the parties to this Agreement (the "Closing Date").
The consideration (the "Purchase Price") for the Mortgage Loans shall be equal
to (A) the principal amounts or percentage interests of the Certificates set
forth on Exhibit B attached hereto (collectively, the "Retained Certificates"),
and (B) (i) 104.5% of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Loan Balance as of the Cut-Off
Date, plus (ii) $745,690 which amount represents the amount of interest accrued
on the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Loan Balance at the related Net Mortgage Rate for
the period from and including the Cut-Off Date up to but not including the
Closing Date.
The Purchase Price shall be paid to the Sellers or their
respective designees by wire transfer in immediately available funds on the
Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt
of the Purchase Price, each Seller does hereby sell, transfer, assign, set over
and otherwise convey to the Purchaser, without recourse (except as set forth in
this Agreement), all the right, title and interest of each Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date, on a
servicing released basis, together with all of the respective Seller's right,
title and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance proceeds. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the Cut-Off Date, and
all other recoveries of principal and interest collected after the Cut-Off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date). All scheduled payments of principal and interest due
on or before the Cut-Off Date but collected after the Cut-Off Date, and
recoveries of principal and interest collected on or before the Cut-Off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the respective Seller.
(c) Each Seller hereby represents and warrants that it has, on
behalf of the Purchaser, delivered to the Trustee, the documents and instruments
specified below with respect to each Mortgage Loan (each a "Mortgage File"). All
Mortgage Files so delivered will be held by the Trustee in escrow at all times
prior to the Closing Date. Each Mortgage File shall contain the following
documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (or a lost note affidavit and
indemnity with a copy of such Mortgage Note attached thereto), together
with any and all intervening endorsements thereon, endorsed on its face
or by allonge attached thereto (without recourse, representation or
warranty, express or implied) to the order of ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as trustee for the registered holders of First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2001-C2 or in blank;
(ii) an original or copy of the Mortgage, together with any
and all intervening assignments thereof, in each case with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with
any and all intervening assignments thereof, in each case with evidence
of recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form, of
(a) the Mortgage, (b) any related Assignment of Leases (if such item is
a document separate from the Mortgage) and (c) any other recorded
document relating to the Mortgage Loan otherwise included in the
Mortgage File, in favor of ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee
for the registered holders of First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2001-C2, or in blank;
(v) an original assignment of all unrecorded documents
relating to the Mortgage Loan, in favor of ▇▇▇▇▇ Fargo Bank Minnesota,
N.A., as trustee for the registered holders of First Union National
Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2001-C2, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment
(which may be a marked version of the policy that has been executed by
an authorized representative of the title company) to issue such title
insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Trustee of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan
or in favor of any assignee prior to the Trustee (but only to the
extent the related Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if there is an effective UCC
Financing Statement and continuation statements in favor of the related
Seller on record with the applicable public office for UCC Financing
Statements, an original UCC-2 or UCC-3 assignment, as appropriate, in
form suitable for filing, as appropriate, in favor of ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as trustee for the registered holders of First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2001-C2, or in blank;
(ix) an original or copy of any Ground Lease, any Credit
Lease and any Lease Enhancement Policy, RVI Policy, Guaranty or ground
lessor estoppel;
(x) any intercreditor agreement relating to permitted debt
of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement,
security agreement or letter of credit relating to a Mortgage Loan; and
(xii) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related Co-Lender
Agreement; provided that a copy of each mortgage note relating to such
Companion Loan, rather than the original, shall be provided, and no
assignments shall be provided.
(d) Each Seller shall take all actions necessary or desirable
to permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of
the Pooling and Servicing Agreement.
(e) All documents and records (except attorney-client
privileged communication and internal credit analysis of the respective Seller)
relating to each Mortgage Loan and in the Seller's possession (the "Additional
Mortgage Loan Documents") that are not required to be delivered to the Trustee
shall promptly be delivered or caused to be delivered by the related Seller to
the Master Servicer or at the direction of the Master Servicer to the
appropriate sub-servicer, together with any related escrow amounts and reserve
amounts.
(f) Each Seller shall take such actions as are reasonably
necessary to assign or otherwise grant to the Trust Fund the benefit of any
letters of credit in the name of the Seller which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and
Covenants of the Sellers.
(a) Each Seller hereby represents and warrants to and
covenants with the Purchaser, as of the date hereof, that:
(i) Such Seller is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware
and possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it and to
execute, deliver and comply with its obligations under the terms of
this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by such Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal,
valid and binding obligation of such Seller, enforceable against such
Seller in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights in general, as they
may be applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law),
and by public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement which purport to
provide indemnification from liabilities under applicable securities
laws;
(iii) The execution and delivery of this Agreement by such
Seller and the Sellers' performance and compliance with the terms of
this Agreement will not (A) violate such Seller's articles of
association or bylaws, (B) violate any law or regulation or any
administrative decree or order to which it is subject or (C) constitute
a material default (or an event which, with notice or lapse of time, or
both, would constitute a material default) under, or result in the
breach of, any material contract, agreement or other instrument to
which such Seller is a party or by which such Seller is bound;
(iv) Such Seller is not in default with respect to any order
or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in such Seller's reasonable
and good faith judgment, materially and adversely affect the condition
(financial or other) or operations of such Seller or its properties or
have consequences that would materially and adversely affect its
performance hereunder;
(v) Such Seller is not a party to or bound by any agreement
or instrument or subject to any articles of association, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in such Seller's reasonable and
good faith judgment, materially and adversely affect the ability of
such Seller to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by such Seller of its obligations under
this Agreement (except to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by such Seller of or compliance by such Seller
with this Agreement or the consummation of the transactions
contemplated by this Agreement except as have previously been obtained,
and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to such Seller's
knowledge, threatened against such Seller that would, in such Seller's
good faith and reasonable judgment, prohibit its entering into this
Agreement or materially and adversely affect the performance by such
Seller of its obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, such Seller will report the
transfer of the Mortgage Loans to the Purchaser as a sale of the
Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Purchase Price. The
consideration received by such Seller upon the sale of the Mortgage
Loans to the Purchaser will constitute reasonably equivalent value at
least equal to the fair market value of the Mortgage Loans. Such Seller
will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Mortgage Loans to the Purchaser.
Such Seller is not selling the Mortgage Loans to the Purchaser with any
intent to hinder, delay or defraud any of the creditors of such Seller.
(b) Each Seller hereby makes the representations and
warranties contained in Schedule I or Schedule II hereto for the benefit of the
Purchaser and the Trustee for the benefit of the Certificateholders as of the
Closing Date, with respect to (and solely with respect to) each Mortgage Loan.
(c) If either Seller discovers or receives written notice of a
Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and
Servicing Agreement relating to a Mortgage Loan, then such Seller shall not
later than 90 days from receipt of such notice (or, in the case of a Document
Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than 90 days from any party to the Pooling and Servicing Agreement discovering
such Document Defect or Breach provided such Seller receives such notice in a
timely manner), if such Document Defect or Breach shall materially and adversely
affect the value of the related Mortgage Loan or the interest of the
Certificateholders therein, cure such Document Defect or Breach, as the case may
be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions solely due to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan at the applicable Purchase
Price not later than the end of such 90-day period or (ii) substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later
than the end of such 90-day period (and in no event later than the second
anniversary of the Closing Date) and pay the Master Servicer for deposit into
the Certificate Account, any Substitution Shortfall Amount in connection
therewith; provided, however, that unless the breach would cause the Mortgage
Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is
capable of being cured but not within such 90-day period and such Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such 90-day period, such Seller shall have an additional 90 days
to complete such cure (or, failing such cure, to repurchase or substitute the
related Mortgage Loan); and provided, further, that with respect to such
additional 90-day period such Seller shall have delivered an Officer's
Certificate to the Trustee setting forth the reason such Document Defect or
Breach is not capable of being cured within the initial 90-day period and what
actions such Seller is pursuing in connection with the cure thereof and stating
that such Seller anticipates that such Document Defect or Breach will be cured
within the additional 90-day period; and provided; further, that no Document
Defect (other than with respect to a Mortgage Note, Mortgage, title insurance
policy, Ground Lease or any letter of credit) shall be considered to materially
and adversely affect the interests of the Certificateholders or the value of the
related Mortgage Loan unless the document with respect to which the Document
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any borrower or third party with respect to the Mortgage Loan,
establishing the validity or priority of any lien or any collateral securing the
Mortgage Loan or for any immediate servicing obligations. A Document Defect or
Breach as to a Mortgage Loan that is cross-collateralized and cross-defaulted
with one or more other Mortgage Loans (each a "Crossed Loan") that materially
and adversely affects the value of such other Mortgage Loans, and is not cured
as provided for above, shall require the repurchase or substitution of all such
cross-collateralized and cross-defaulted Mortgage Loans which are materially and
adversely affected by such Document Defect or Breach; provided, that if any
Crossed Loan is not so repurchased or substituted, then such Crossed Loan shall
be released from its cross-collateralization and cross-default provision so long
as such Crossed Loan is held in the Trust Fund; provided, further, that the
borrower under such Mortgage Loan is an intended third party beneficiary of this
provision, which shall not be modified without such borrower's consent. For a
period of two years from the Closing Date, so long as there remains any Mortgage
File relating to a Mortgage Loan as to which there is any uncured Document
Defect or Breach, such Seller shall provide the Officer's Certificate to the
Trustee described above as to the reasons such Document Defect or Breach remains
uncured and as to the actions being taken to pursue cure; provided, however,
that, without limiting the effect of the foregoing provisions of this Section
3(c), if such Document Defect or Breach shall materially and adversely affect
the value of such Mortgage Loan or the interests of the holders of the
Certificates therein (subject to the last proviso in the immediately preceding
sentence), such Seller shall in all cases on or prior to the second anniversary
of the Closing Date either cause such Document Defect or Breach to be cured or
repurchase or substitute for the affected Mortgage Loan. Notwithstanding the
foregoing, the delivery of a commitment to issue a policy of lender's title
insurance as described in clause 12 of Schedule I hereof in lieu of the delivery
of the actual policy of lender's title insurance shall not be considered a
Document Defect or Breach with respect to any Mortgage File if such actual
policy of insurance is delivered to the Trustee or a Custodian on its behalf not
later than the 90th day following the Closing Date.
(d) In connection with any permitted repurchase or
substitution of one or more Mortgage Loans contemplated hereby, upon receipt of
a certificate from a Servicing Officer certifying as to the receipt of the
Purchase Price or Substitution Shortfall Amount(s), as applicable, in the
Certificate Account, and the delivery of the Mortgage File(s) and the Servicing
File(s) for the related Qualified Substitute Mortgage Loan(s) to the Custodian
and the Master Servicer, respectively, if applicable (i) the Trustee shall
execute and deliver such endorsements and assignments as are provided to it by
the Master Servicer, in each case without recourse, representation or warranty,
as shall be necessary to vest in such Seller, the legal and beneficial ownership
of each repurchased Mortgage Loan or substituted Mortgage Loan, as applicable,
and (ii) the Trustee, the Custodian, the Master Servicer and the Special
Servicer shall each tender to such Seller, upon delivery to each of them of a
receipt executed by such Seller, all portions of the Mortgage File and other
documents pertaining to such Mortgage Loan possessed by it.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement.
SECTION 4. Representations and Warranties of the Purchaser.
In order to induce each Seller to enter into this Agreement, the Purchaser
hereby represents and warrants for the benefit of the Sellers as of the date
hereof that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Sellers and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Sellers) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state
securities laws (and which will be obtained on a timely basis), no consent,
approval, authorization or order of, registration or filing with, or notice to,
any governmental authority or court, is required, under federal or state law,
for the execution, delivery and performance by the Purchaser of or compliance by
the Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or performance of this Agreement by the Purchaser, results or will
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, or conflicts or will conflict with, results or will result
in a breach of, or constitutes or will constitute a default under (A) any term
or provision of the Purchaser's Articles of Incorporation or Bylaws, (B) any
term or provision of any material agreement, contract, instrument or indenture,
to which the Purchaser is a party or by which the Purchaser is bound, or (C) any
law, rule, regulation, order, judgment, writ, injunction or decree of any court
or governmental authority having jurisdiction over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the Sellers to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Purchaser, threatened against the Purchaser
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement or
any action taken in connection with the obligations of the Purchaser
contemplated herein, or which would be likely to impair materially the ability
of the Purchaser to perform under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage
Loans (the "Closing") shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇, Charlotte, North Carolina on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Sellers
set forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and
all of the representations and warranties of the Purchaser set forth in Section
4 of this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement
(the "Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, the Underwriters and their respective counsel in their reasonable
discretion, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(c) The Sellers shall have delivered and released to the
Trustee (or a Custodian on its behalf) and the Master Servicer, respectively,
all documents represented to have been or required to be delivered to the
Trustee and the Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been complied with
in all material respects and the Sellers 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) Each Seller shall have paid all fees and expenses payable
by it to the Purchaser or otherwise pursuant to this Agreement as of the Closing
Date; and
(f) A letter from the independent accounting firm of KPMG LLP
in form satisfactory to the Purchaser, relating to certain information regarding
the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively.
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 6. Closing Documents. The Closing Documents shall
consist of the following:
(a) This Agreement duly executed by the Purchaser and the
Sellers;
(b) A Certificate of each Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser and the Underwriters may rely, to the effect that: (i) the
representations and warranties of such Seller in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; and (ii) such Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An Officer's Certificate from an officer of each Seller,
dated the Closing Date, and upon which the Purchaser may rely, to the effect
that each individual who, as an officer or representative of such Seller, signed
this Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An Officer's Certificate from an officer of each Seller,
dated the Closing Date, and upon which the Purchaser and the Underwriters may
rely, to the effect that (i) such officer has carefully examined the Prospectus
and nothing has come to his attention that would lead him to believe that the
Prospectus, as of the date of the Prospectus Supplement or as of the Closing
Date, included or includes any untrue statement of a material fact relating to
the Mortgage Loans or omitted or omits to state therein a material fact
necessary in order to make the statements therein relating to the Mortgage
Loans, in light of the circumstances under which they were made, not misleading,
and (ii) such officer has examined the Memorandum and nothing has come to his
attention that would lead him to believe that the Memorandum, as of the date
thereof or as of the Closing Date, included or includes any untrue statement of
a material fact relating to the Mortgage Loans or omitted or omits to state
therein a material fact necessary in order to make the statements therein
related to the Mortgage Loans, in the light of the circumstances under which
they were made, not misleading;
(e) The resolutions of the requisite committee of each
Seller's board of directors authorizing such Seller's entering into the
transactions contemplated by this Agreement, the articles of association and
by-laws of such Seller, and a certificate of good standing of such Seller issued
by the State of Delaware not earlier than sixty (60) days prior to the Closing
Date;
(f) A written opinion of counsel for the Sellers, reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters and
each of the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Sellers shall, jointly and severally, indemnify and
hold harmless the Purchaser, the Underwriters, their respective officers and
directors, and each person, if any, who controls the Purchaser or any
Underwriter within the meaning of either Section 15 of the Securities Act of
1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), against any and all losses, expenses
(including the reasonable fees and expenses of legal counsel), claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus Supplement, the Memorandum, the Diskette or,
insofar as they are required to be filed as part of the Registration Statement
pursuant to the No-Action Letters, any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates, or in any revision or
amendment of or supplement to any of the foregoing or (B) any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates (the items in (A) and (B) being defined as
the "Disclosure Material"), or (ii) arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; but only if and to the
extent that (I) any such untrue statement or alleged untrue statement or
omission or alleged omission arises out of or is based upon an untrue statement
or omission with respect to the Mortgage Loans, the related Mortgagors and/or
the related Mortgaged Properties contained in the Data File (it being herein
acknowledged that the Data File was and will be used to prepare the Prospectus
Supplement including without limitation Annex A thereto, the Memorandum, the
Diskette, any Computational Materials and ABS Term Sheets with respect to the
Registered Certificates and any items similar to Computational Materials and ABS
Term Sheets forwarded to prospective investors in the Non-Registered
Certificates), (II) any such untrue statement or alleged untrue statement or
omission or alleged omission of a material fact is with respect to, or arises
out of or is based upon an untrue statement or omission of a material fact with
respect to, the information regarding the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties and/or the Sellers set forth (Y) in
the Prospectus Supplement and the Memorandum under the headings: "SUMMARY OF
PROSPECTUS SUPPLEMENT-THE PARTIES-The Mortgage Loan Sellers" and "-The Mortgage
Loan Originators", "SUMMARY OF PROSPECTUS SUPPLEMENT-THE MORTGAGE LOANS", "RISK
FACTORS-Certain Risk Factors Associated With the Mortgage Loans" and
"DESCRIPTION OF THE MORTGAGE POOL" and (Z) on Annex A to the Prospectus
Supplement and, to the extent consistent therewith, on a Diskette, or (III) any
such untrue statement or alleged untrue statement or omission or alleged
omission arises out of or is based upon a breach of the representations and
warranties of the Sellers set forth in or made pursuant to Section 3; provided
that the indemnification provided by this Section 7 shall not apply to the
extent that such untrue statement or omission of a material fact was made as a
result of an error in the manipulation of, or in any calculations based upon, or
in any aggregation of the information regarding the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties set forth in the Data File or
Annex A to the Prospectus Supplement to the extent such information was not
materially incorrect in the Data File or such Annex A, as applicable, including
without limitation the aggregation of such information with comparable
information relating to the Other Mortgage Loans. The information described in
clauses (I) through (III) above is collectively referred to as the "Seller
Information". The Sellers shall reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Sellers may otherwise have.
(b) For purposes of this Agreement, "Registration Statement"
shall mean such registration statement No. 333-53266 filed by the Purchaser on
Form S-3, including without limitation exhibits thereto and information
incorporated therein by reference; "Base Prospectus" shall mean the prospectus
dated May 15, 2001, as supplemented by the prospectus supplement dated May 31,
2001 (the "Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Memorandum" shall mean the private placement memorandum dated May 31,
2001 relating to the Non-Registered Certificates, including all exhibits
thereto; "Registered Certificates" shall mean the Class A-1, Class A-2, Class B,
Class C, Class D and Class E Certificates; "Non-Registered Certificates" shall
mean the Certificates other than the Registered Certificates; "Computational
Materials" shall have the meaning assigned thereto in the no-action letter dated
May 20, 1994 issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation
I, ▇▇▇▇▇▇, Peabody & Co. Incorporated, and ▇▇▇▇▇▇ Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "▇▇▇▇▇▇ Letters"); "ABS Term Sheets" shall have the meaning
assigned thereto in the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and, together with the ▇▇▇▇▇▇ letters, the
"No-Action Letters"); "Diskette" shall mean the diskette or compact disc
attached to each of the Prospectus and the Memorandum; and "Data File" shall
mean the compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letter dated May 15, 2001 and rendered by
KPMG LLP (a "hard copy" of which Data File was initialed on behalf of the
Sellers and the Purchaser).
(c) The Purchaser shall indemnify and hold harmless each of
the Sellers, their directors, officers, employees and agents, and each person,
if any, who controls each Seller within the meaning of either the 1933 Act or
the 1934 Act, against any and all losses, expenses (including the reasonable
fees and expenses of legal counsel), claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the 1933 Act, the
1934 Act, or other federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (in
preliminary or final form), or in an amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made, except to the extent that such untrue statement, alleged untrue
statement, omission or alleged omission is based upon such Seller Information,
and the Purchaser shall reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which the
Purchaser may otherwise have.
(d) Promptly after receipt by any person entitled to
indemnification under this Section 7 (an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Sellers (the "indemnifying party") under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability that it may have to any indemnified party under this Section 7
(except to the extent that such omission has prejudiced the indemnifying party
in any material respect) or from any liability which it may have otherwise than
under this Section 7. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel selected by the indemnifying party and
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the Underwriters,
representing all the indemnified parties under Section 7(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(e) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(f) The Purchaser and the Sellers agree that it would not be
just and equitable if contribution pursuant to Section 7(e) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the considerations referred to in Section 7(e) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 7, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be ultimately
obligated to pay such expenses. If any expenses so paid by the indemnifying
party are subsequently determined to not be required to be borne by the
indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(g) The indemnity and contribution agreements contained in
this Section 7 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by the
Purchaser, the Underwriters, any of their respective directors or officers, or
any person controlling the Purchaser or the Underwriters, and (iii) acceptance
of and payment for any of the Certificates.
(h) Without limiting the generality or applicability of any
other provision of this Agreement, the Underwriters shall be third-party
beneficiaries of the provisions of this Section 7.
SECTION 8. Costs. Each Seller shall pay (or shall reimburse
the Purchaser to the extent that the Purchaser has paid) each Seller's pro rata
portion of the aggregate of the following amounts (each Seller's pro rata
portion to be determined according to the percentage that the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Loan Balance represents of the Cut-Off Date Pool Balance): (i) the
costs and expenses of printing and delivering the Pooling and Servicing
Agreement and the Certificates; (ii) the costs and expenses of printing (or
otherwise reproducing) and delivering a preliminary and final Prospectus and
Memorandum relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee (including reasonable attorneys' fees); (iv) the filing
fee charged by the Securities and Exchange Commission for registration of the
Certificates so registered; (v) the fees charged by the Rating Agencies to rate
the Certificates so rated; (vi) the expense of recording any assignment of
Mortgage or assignment of Assignment of Leases as contemplated by Section 2
hereof; (vii) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Sellers with respect to numerical
information in respect of the Mortgage Loans and the Certificates included in
the Prospectus, the Memorandum and any related Computational Materials or ABS
Term Sheets, including in respect of the cost of obtaining any "comfort letters"
with respect to such items; (viii) the reasonable out-of-pocket costs and
expenses in connection with the qualification or exemption of the Certificates
under state securities or "Blue Sky" laws, including filing fees and reasonable
fees and disbursements of counsel in connection therewith, in connection with
the preparation of any "Blue Sky" survey and in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey; (ix)
the expenses of printing any such "Blue Sky" survey and legal investment survey;
and (x) the reasonable fees and disbursements of counsel to the Underwriters.
All other costs and expenses in connection with the transactions contemplated
hereunder shall be borne by the party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by the
Sellers to the Purchaser as provided in Section 2 hereof be, and be construed
as, a sale of the Mortgage Loans by the Sellers to the Purchaser and not as a
pledge of the Mortgage Loans by the Sellers to the Purchaser to secure a debt or
other obligation of the Sellers. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the
Sellers, then, (a) it is the express intent of the parties that such conveyance
be deemed a pledge of the Mortgage Loans by the Sellers to the Purchaser to
secure a debt or other obligation of the Sellers, and (b) (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Articles 8
and 9 of the Uniform Commercial Code of the applicable jurisdiction; (ii) the
conveyance provided for in Section 2 hereof shall be deemed to be a grant by
each Seller to the Purchaser of a security interest in all of such Seller's
right, title and interest in and to the Mortgage Loans, and all amounts payable
to the holder of the Mortgage Loans in accordance with the terms thereof, and
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all amounts, other than investment earnings, from time to time held or invested
in the Certificate Account, the Distribution Account or, if established, the REO
Account (each as defined in the Pooling and Servicing Agreement) whether in the
form of cash, instruments, securities or other property; (iii) the assignment to
the Trustee of the interest of the Purchaser as contemplated by Section 1 hereof
shall be deemed to be an assignment of any security interest created hereunder;
(iv) the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, of the 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 Uniform
Commercial Code of the applicable jurisdiction; and (v) notifications to persons
(other than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from persons (other than the Trustee) holding such property, shall
be deemed notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the secured party
for the purpose of perfecting such security interest under applicable law. The
Sellers and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of each Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by such Seller to the Purchaser (and by the Purchaser to the
Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but which
together shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED
IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES
HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Attorneys Fees. If any legal action, suit or
proceeding is commenced between the Sellers and the Purchaser regarding their
respective rights and obligations under this Agreement, the prevailing party
shall be entitled to recover, in addition to damages or other relief, costs and
expenses, attorneys' fees and court costs (including, without limitation, expert
witness fees). As used herein, the term "prevailing party" shall mean the party
which obtains the principal relief it has sought, whether by compromise
settlement or judgment. If the party which commenced or instituted the action,
suit or proceeding shall dismiss or discontinue it without the concurrence of
the other party, such other party shall be deemed the prevailing party.
SECTION 16. Further Assurances. The Sellers 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 17. Successors and Assigns. The rights and
obligations of the Sellers under this Agreement shall not be assigned by either
Seller without the prior written consent of the Purchaser, except that any
person into which such Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Seller is a
party, or any person succeeding to all or substantially all of the business of
such Seller, shall be the successor to such Seller hereunder. The Purchaser has
the right to assign its interest under this Agreement, in whole or in part, as
may be required to effect the purposes of the Pooling and Servicing Agreement,
and the assignee shall, to the extent of such assignment, succeed to the rights
and obligations hereunder of the Purchaser. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by such
Seller, the Purchaser, the Underwriters (as intended third party beneficiaries
hereof) and their permitted successors and assigns, and the officers, directors
and controlling persons referred to in Section 7. This Agreement is enforceable
by the Underwriters and the other third party beneficiaries hereto in all
respects to the same extent as if they had been signatories hereof.
SECTION 18. Amendments. No term or provision of this
Agreement may be waived or modified unless such waiver or modification is in
writing and signed by a duly authorized officer of the party, or third party
beneficiary, against whom such waiver or modification is sought to be enforced.
SECTION 19. Accountants' Letters. The parties hereto shall
cooperate with KPMG LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty
or other statement in this Agreement is made with respect to a Person's
"knowledge," such statement refers to such Person's employees or agents who were
or are responsible for or involved with the indicated matter and have actual
knowledge of the matter in question.
IN WITNESS WHEREOF, the Sellers and the Purchaser have
caused their names to be signed hereto by their respective duly authorized
officers as of the date first above written.
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE CAPITAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING, INC.
By: /s/ ▇▇▇▇▇▇ Balkan
-------------------------------------------
Name: ▇▇▇▇▇▇ Balkan
Title: Vice President, Authorized Signatory
Address for Notices:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
PURCHASER
FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address for Notices:
One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-Off Date.
2. As of the date of its origination, such Mortgage Loan complied in
all material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such
Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good and marketable title to, and was the
sole owner of, each Mortgage Loan, and the Seller is transferring
such Mortgage Loan free and clear of any and all liens, pledges,
charges or security interests of any nature encumbering such
Mortgage Loan. Upon consummation of the transactions contemplated by
the Mortgage Loan Purchase Agreement, the Seller will have validly
and effectively conveyed to the Purchaser all legal and beneficial
interest in and to such Mortgage Loan free and clear of any pledge,
lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any)
and other agreement executed in connection with such Mortgage Loan
are legal, valid and binding obligations of the related Mortgagor
(subject to any non-recourse provisions therein and any state
anti-deficiency or market value limit deficiency legislation),
enforceable in accordance with their terms, except (i) that certain
provisions contained in such Mortgage Loan documents are or may be
unenforceable in whole or in part under applicable state or federal
laws, but neither the application of any such laws to any such
provision nor the inclusion of any such provisions renders any of
the Mortgage Loan documents invalid as a whole and such Mortgage
Loan documents taken as a whole are enforceable to the extent
necessary and customary for the practical realization of the rights
and benefits afforded thereby and (ii) as such enforcement may be
limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and
Mortgage contain no provision limiting the right or ability of the
Seller to assign, transfer and convey the related Mortgage Loan to
any other Person.
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect
to any of the related Mortgage Notes, Mortgage(s) or other
agreements executed in connection therewith, and, as of the Cut-Off
Date, to the actual knowledge of the Seller, there is no valid
offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements, except in each
case, with respect to the enforceability of any provisions requiring
the payment of default interest, late fees, additional interest,
prepayment premiums or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid
and binding first priority assignment from the Seller, except as
such enforcement may be limited by bankruptcy, insolvency,
redemption, reorganization, liquidation, receivership, moratorium or
other laws relating to or affecting creditors' rights generally or
by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). Each
Mortgage and Assignment of Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the exceptions set forth
in paragraph (5) above and the following title exceptions (each such
title exception, a "Title Exception", and collectively, the "Title
Exceptions"): (a) the lien of current real property taxes, ground
rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which,
individually or in the aggregate, materially interferes with the
current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Mortgagor's ability to pay its
obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged
Property, (c) the exceptions (general and specific) set forth in
such policy or appearing of record, none of which, individually or
in the aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations
under the Mortgage Loan when they become due or materially and
adversely affects the value of the Mortgaged Property, (d) other
matters to which like properties are commonly subject, none of
which, individually or in the aggregate, materially interferes with
the current use of the Mortgaged Property or the security intended
to be provided by such Mortgage or with the Mortgagor's ability to
pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged
Property, (e) the right of tenants (whether under ground leases,
space leases or operating leases) at the Mortgaged Property to
remain following a foreclosure or similar proceeding (provided that
such tenants are performing under such leases) and (f) if such
Mortgage Loan is cross-collateralized with any other Mortgage Loan,
the lien of the Mortgage for such other Mortgage Loan, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations when they become due or
materially and adversely affects the value of the Mortgaged
Property. Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans, there are no mortgage loans that are
senior or pari passu with respect to the related Mortgaged Property
or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not
filed and/or recorded, have been submitted in proper form for filing
and recording), in all public places necessary to perfect a valid
first priority security interest in all items of personal property
reasonably necessary to operate the Mortgaged Property owned by a
Mortgagor and located on the related Mortgaged Property, (other than
any personal property subject to a purchase money security interest
or a sale and leaseback financing arrangement permitted under the
terms of such Mortgage Loan or any other personal property leases
applicable to such personal property) to the extent perfection may
be effected pursuant to applicable law by recording or filing, and
the Mortgages, security agreements, chattel Mortgages or equivalent
documents related to and delivered in connection with the related
Mortgage Loan establish and create a valid and enforceable lien and
priority security interest on such items of personalty except as
such enforcement may be limited by bankruptcy, insolvency,
receivorship, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditor's rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
Notwithstanding any of the foregoing, no representation is made as
to the perfection of any security interest in rents or other
personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements
are required in order to effect such perfection.
10. All real estate taxes and governmental assessments which would be a
lien on the Mortgaged Property and that prior to the Cut-Off Date
have become delinquent in respect of each related Mortgaged Property
have been paid, or an escrow of funds in an amount sufficient to
cover such payments has been established. For purposes of this
representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered
delinquent until the earlier of (a) the date on which interest
and/or penalties would first be payable thereon and (b) the date on
which enforcement action is entitled to be taken by the related
taxing authority.
11. To the Seller's actual knowledge as of the Cut-Off Date, and to the
Seller's actual knowledge based solely upon due diligence
customarily performed with the origination of comparable Mortgage
Loans by the Seller, each related Mortgaged Property was free and
clear of any material damage (other than deferred maintenance for
which escrows were established at origination) that would affect
materially and adversely the value of such Mortgaged Property as
security for the Mortgage Loan and to the Seller's actual knowledge
as of the Cut-Off Date there was no proceeding pending for the total
or partial condemnation of such Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan after all advances
of principal (as set forth on the Mortgage Loan Schedule) is insured
by an ALTA lender's title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the applicable
jurisdiction, insuring the Seller, its successors and assigns,
subject only to the Title Exceptions; the Seller or its successors
or assigns is the named insured of such policy; such policy is
assignable without consent of the insurer and will inure to the
benefit of the Trustee as mortgagee of record; is in full force and
effect upon the consummation of the transactions contemplated by
this Agreement; all premiums thereon have been paid; no claims have
been made under such policy and the Seller has not done anything, by
act or omission, and the Seller has no actual knowledge of any
matter, which would impair or diminish the coverage of such policy.
The insurer issuing such policy is either (x) a
nationally-recognized title insurance company or (y) qualified to do
business in the jurisdiction in which the related Mortgaged Property
is located to the extent required; such policy contains no material
exclusions for, or affirmatively insures (except for any Mortgaged
Property located in a jurisdiction where such insurance is not
available) (a) access to public road or (b) against any loss due to
encroachments of any material portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage required
under each related Mortgage, which insurance covered such risks as
were customarily acceptable to prudent commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in
which such Mortgaged Property is located, and with respect to a fire
and extended perils insurance policy, is in an amount (subject to a
customary deductible) equal to the lesser of (i) the replacement
cost of improvements located on such Mortgaged Property, or (ii) the
initial principal balance of the Mortgage Loan, and in any event,
the amount necessary to prevent operation of any co-insurance
provisions; and, except if such Mortgaged Property is operated as a
mobile home park, is also covered by business interruption or rental
loss insurance, in an amount at least equal to 12 months of
operations of the related Mortgaged Property (or in the case of a
Mortgaged Property without any elevator, 6 months), all of which is
was in full force and effect with respect to each related Mortgaged
Property; and, as of the Cut-Off Date, to the actual knowledge of
the Seller, all insurance coverage required under each Mortgage,
which insurance covers such risks and is in such amounts as are
customarily acceptable to prudent commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in
which such Mortgaged Property is located, is in full force and
effect with respect to each related Mortgaged Property; all premiums
due and payable through the Closing Date have been paid; and no
notice of termination or cancellation with respect to any such
insurance policy has been received by the Seller; and except for
certain amounts not greater than amounts which would be considered
prudent by an institutional commercial mortgage lender with respect
to a similar Mortgage Loan and which are set forth in the related
Mortgage, any insurance proceeds in respect of a casualty loss, will
be applied either (i) to the repair or restoration of all or part of
the related Mortgaged Property or (ii) the reduction of the
outstanding principal balance of the Mortgage Loan, subject in
either case to requirements with respect to leases at the related
Mortgaged Property and to other exceptions customarily provided for
by prudent institutional lenders for similar loans. The Mortgaged
Property is also covered by comprehensive general liability
insurance against claims for personal and bodily injury, death or
property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent institutional
lenders.
The insurance policies contain a standard mortgage clause naming the
Seller, its successors and assigns as loss payee, in the case of a
property insurance policy, and additional insured in the case of a
liability insurance policy and provide that they are not terminable
without 30 days prior written notice to the Mortgagee or such lesser
period as prescribed by applicable law. Each Mortgage requires that
the Mortgagor maintain insurance as described above or permits the
Mortgagee to require insurance as described above, and permits the
Mortgagee to purchase such insurance at the Mortgagor's expense if
Mortgagor fails to do so.
14. (A) Other than payments due but not yet 30 days or more delinquent,
to the Seller's actual knowledge, based upon due diligence
customarily performed with the servicing of comparable mortgage
loans by prudent institutional lenders, there is no material
default, breach, violation or event of acceleration existing under
the related Mortgage or the related Mortgage Note, and to the
Seller's actual knowledge no event (other than 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,
provided, however, that this representation and warranty does not
address or otherwise cover any default, breach, violation or event
of acceleration that specifically pertains to any matter otherwise
covered by any other representation and warranty made by the Seller
in any of clauses (10), (15) and (19) of this Schedule I or in any
clause of Schedule II or III, and (B) the Seller has not waived any
material default, breach, violation or event of acceleration under
such Mortgage or Mortgage Note, except for a written waiver
contained in the related Mortgage File being delivered to the
Purchaser, and pursuant to the terms of the related Mortgage or the
related Mortgage Note, and other documents in the related Mortgage
File no person or party other than the holder of such Mortgage Note
may declare any event of default or accelerate the related
indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Cut-Off Date, the Mortgage Loan is not, and in the prior
12 months (or since the date of origination if such Mortgage Loan
has been originated within the past 12 months), has not been, 30
days or more past due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at
which interest accrues thereon increases after the Anticipated
Repayment Date, the Mortgage Rate (exclusive of any default
interest, late charges or prepayment premiums) of such Mortgage Loan
is a fixed rate.
17. Each related Mortgage does not provide for 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 except as expressly described in such Mortgage.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage, or any substantially similar
successor provision). Accordingly, such Mortgage Loan is directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (1) substantially all of the
proceeds of such Mortgage Loan were used to acquire, improve or
protect the portion of such commercial or multifamily residential
property that consists of an interest in real property (within the
meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d))
and such interest in real property was the only security for such
Mortgage Loan as of the Testing Date (as defined below), or (2) the
fair market value of the interest in real property which secures
such Mortgage Loan was at least equal to 80% of the principal amount
of the Mortgage Loan (a) as of the Testing Date, or (b) as of the
Closing Date. For purposes of the previous sentence, (1) the fair
market value of the referenced interest in real property shall first
be reduced by (a) the amount of any lien on such interest in real
property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property
that is on a parity with the Mortgage Loan, and (2) the "Testing
Date" shall be the date on which the referenced Mortgage Loan was
originated unless (a) such Mortgage Loan was modified after the date
of its origination in a manner that would cause a "significant
modification" of such Mortgage Loan within the meaning of Treasury
Regulations Section 1.1001-3(b), and (b) such "significant
modification" did not occur at a time when such Mortgage Loan was in
default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has
been subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default
or when default with respect to such Mortgage Loan was not
reasonably foreseeable, the Testing Date shall be the date upon
which the latest such "significant modification" occurred. The
Mortgage Loan documents with respect to each Defeasance Loan do not
allow such Defeasance Loan to be defeased prior to two years after
the Startup Date.
19. One or more environmental site assessments or updates thereof were
performed by an environmental consulting firm independent of the
Seller and the Seller's affiliates with respect to each related
Mortgaged Property during the 18-months preceding the origination of
the related Mortgage Loan, and the Seller, having made no
independent inquiry other than to review the report(s) prepared in
connection with the assessment(s) referenced herein, has no actual
knowledge and has received no notice of any material and adverse
environmental condition or circumstance affecting such Mortgaged
Property that was not disclosed in such report(s). If any such
environmental report identified any Recognized Environmental
Condition (REC), as that term is defined in the Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process Designation: E 1527-00, as recommended by the
American Society for Testing and Materials (ASTM), with respect to
the related Mortgaged Property and the same have not been
subsequently addressed in all material respects, then either (i) an
escrow greater than 100% of the amount necessary to address the REC
is held by the Seller for purposes of effecting same, (and the
borrower has covenanted in the Mortgage Loan documents to perform
such work), or (ii) the related borrower or other responsible party
not related to the borrower and having financial resources
reasonably estimated to be adequate to address the REC is required
to take such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental
regulatory authority or any environmental law or regulation, or
(iii) the borrower has provided an environmental insurance policy.
All environmental assessments or updates that were in the possession
of the Seller and that relate to a Mortgaged Property insured by an
environmental insurance policy have been delivered to or disclosed
to the environmental insurance carrier issuing such policy prior to
the issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including realization by judicial or, if
applicable, non-judicial foreclosure, subject to the effects of
bankruptcy or similar law affecting the right of creditors and the
application of principles of equity.
21. At the time of origination and, to the actual knowledge of Seller as
of the Cut-Off Date, no Mortgagor is a debtor in, and no Mortgaged
Property is the subject of, any state or federal bankruptcy or
insolvency proceeding.
22. Each Mortgage Loan is a whole loan (except with respect to the AB
Mortgage Loans) and contains no equity participation by the lender
or shared appreciation feature and does not provide for any
contingent or additional interest in the form of participation in
the cash flow of the related Mortgaged Property or, other than the
ARD Loans, provide for negative amortization. The Seller holds no
preferred equity interest.
23. Subject to certain exceptions, which are customarily acceptable to
prudent commercial and multifamily mortgage lending institutions
lending on the security of property comparable to the related
Mortgaged Property, each related Mortgage or loan agreement contains
provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without complying with
the requirements of the Mortgage or loan agreement, the related
Mortgaged Property, or any controlling interest in the related
Mortgagor, is directly transferred or sold (other than by reason of
family and estate planning transfers and transfers of less than a
controlling interest in a mortgagor, or a substitution or release of
collateral within the parameters of paragraph (26) below), or
encumbered in connection with subordinate financing by a lien or
security interest against the related Mortgaged Property, other than
any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of the
related Mortgage Note and Mortgage(s) have not been waived,
modified, altered, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the
security intended to be provided by such Mortgage.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior
to the related origination date.
26. Since origination, no material portion of the related Mortgaged
Property has been released from the lien of the related Mortgage in
any manner which materially and adversely affects the value of the
Mortgage Loan or materially interferes with the security intended to
be provided by such Mortgage, and, except with respect to Mortgage
Loans (a) which permit defeasance by means of substituting for the
Mortgaged Property (or, in the case of a Mortgage Loan secured by
multiple Mortgaged Properties, one or more of such Mortgaged
Properties) U.S. Treasury Obligations sufficient to pay the Mortgage
Loans in accordance with their terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination
and such portion was not considered material for purposes of
underwriting the Mortgage Loan, (c) where release is conditional
upon the satisfaction of certain underwriting and legal requirements
and the payment of a release price that represents adequate
consideration for such Mortgaged Property, or (d) which permit the
related Mortgagor to substitute a replacement property in compliance
with REMIC Provisions, the terms of the related Mortgage do not
provide for release of any portion of the Mortgaged Property from
the lien of the Mortgage except in consideration of payment in full
therefor.
27. To the Seller's actual knowledge, based on due diligence customary
in the industry, as of the date of origination of such Mortgage Loan
and as of the Cut-Off Date, there are no violations of any
applicable zoning ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy
thereof which (i) are not insured by an ALTA lender's title
insurance policy (or a binding commitment therefor), or its
equivalent as adopted in the applicable jurisdiction, or a law and
ordinance insurance policy or (ii) would have a material adverse
effect on the value, operation or net operating income of the
Mortgaged Property.
28. None of the material improvements which were included for the
purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies
outside of the boundaries and building restriction lines of such
property (except Mortgaged Properties which are legal non-conforming
uses), to an extent which would have a material adverse affect on
the related Mortgagor's use and operation of such Mortgaged Property
(unless affirmatively covered by the title insurance) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively
covered by title insurance).
29. With respect to at least 95% of the Mortgage Loans (by balance)
having a Cut-Off Date Balance in excess of 1% of the Initial Pool
Balance, the related Mortgagor has covenanted in its organizational
documents and/or the Mortgage Loan documents to own no significant
asset other than the related Mortgaged Property or Mortgaged
Properties, as applicable, and assets incidental to its ownership
and operation of such Mortgaged Property, and to hold itself out as
being a legal entity, separate and apart from any other person.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's actual knowledge, no funds have been received
from any person other than the Mortgagor, for or on account of
payments due on the Mortgage Note or the Mortgage.
31. Except as set forth below, as of the date of origination and, to the
Seller's actual knowledge, as of the Cut-Off Date, there was no
pending action, suit or proceeding, or governmental investigation of
which it has received notice, against the Mortgagor or the related
Mortgaged Property an adverse outcome of which could reasonably be
expected to materially and adversely affect such Mortgagor's
performance under the related Mortgage Loan documents or the
security intended to be provided by the Mortgage Loan documents or
the current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual
knowledge, as of the Cut-Off Date, if the related Mortgage is a deed
of trust, a trustee, duly qualified under applicable law to serve as
such, has either been properly designated and serving under such
Mortgage or may be substituted in accordance with the Mortgage and
applicable law.
33. The Mortgage Loan and the interest contracted for complied as of the
date of origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements pertaining to
usury.
34. The related Mortgage Note is not secured by any collateral that
secures a Mortgage Loan that is not in the Trust Fund and each
Mortgage Loan that is cross-collateralized is cross-collateralized
only with other Mortgage Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in
full force and effect.
36. All escrow deposits and payments required pursuant to the Mortgage
Loan are in the possession, or under the control, of the Seller or
its agent and there are no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage
loans by prudent commercial and multifamily mortgage lending
institutions with respect to the related geographic area and
properties comparable to the related Mortgaged Property, as of the
date of origination of the Mortgage Loan, the related Mortgagor, the
related lessee, franchisor or operator was in possession of all
material licenses, permits and authorizations then required for use
of the related Mortgaged Property, and, as of the Cut-Off Date, the
Seller has no actual knowledge that the related Mortgagor, the
related lessee, franchisor or operator was not in possession of such
licenses, permits and authorizations.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage
Loan have been in all respects legal and have met customary industry
standards.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property
with respect to which includes a Ground Lease, the related Mortgagor
(or its affiliate) has title in the fee simple interest in each
related Mortgaged Property.
40. Except as set forth below, the Mortgage Loan documents for each
Mortgage Loan provide that each Mortgage Loan is non-recourse to the
related Mortgagor except that the related Mortgagor accepts
responsibility for fraud and/or other intentional misrepresentation.
Furthermore, the Mortgage Loan documents for each Mortgage Loan
provide that the related Mortgagor shall be liable to the lender for
losses incurred due to the misapplication or misappropriation of
rents collected in advance or received by the related Mortgagor
after the occurrence of an event of default, insurance proceeds or
condemnation awards or breach of the environmental covenants in the
related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5), the Assignment
of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and
enforceable lien and security interest in the related Mortgagor's
interest in all leases, subleases, licenses or other agreements
pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property.
42. With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (1) no
earlier than two years after the Closing Date, (2) only with
substitute collateral constituting "government securities" within
the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an
amount sufficient to make all scheduled payments under the Mortgage
Note and (3) only to facilitate the disposition of the Mortgaged
Property and not as a part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate mortgages.
In addition, if such Mortgage contains such a defeasance provision,
it provides (or otherwise contains provisions pursuant to which the
holder can require) that the loan be assumed by a single-purpose
entity designated by the holder of the Mortgage Loan and that an
opinion be provided to the effect that such holder has a first
priority perfected security interest in the defeasance collateral.
The related Mortgage Loan documents enable the lender to charge the
expenses associated with permitting a defeasance to the Mortgagor
(including rating agencies' fees, accounting fees and attorneys'
fees), and must provide for (a) an accountant's certification as to
the adequacy of the defeasance collateral to make payments under the
related Mortgage Loan for the remainder of its term, (b) an Opinion
of Counsel that the defeasance complies with all applicable REMIC
Provisions, and (c) a letter from the Rating Agencies that the
defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates.
Notwithstanding the foregoing, some of the Mortgage Loan documents
may not affirmatively contain all such requirements, but such
requirements are effectively present in such documents due to the
general obligation to comply with the REMIC Provisions and/or
deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability
of the Mortgage Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related
Mortgaged Property is located at all times when it originated and
held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the Mortgagor under the Mortgage
Loan.
46. Except as set forth below or with respect to the Companion Loan of
any AB Mortgage Loan, none of the Mortgaged Properties are
encumbered, and none of the Mortgage Loan documents permit the
related Mortgaged Property to be encumbered subsequent to the
Closing Date without the prior written consent of the holder
thereof, by any lien securing the payment of money junior to or of
equal priority with, or superior to, the lien of the related
Mortgage (other than Title Exceptions, taxes, assessments and
contested mechanics and materialmens liens that become payable after
the after the Cut-Off Date of the related Mortgage Loan).
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTY NO. 31
(SPE REQUIREMENTS)
Loan Exception
Polo Club These loans do not meet the single-
Skyline Terrace Apts. purpose entity requirements.
REPRESENTATIONS AND WARRANTY NO. 40
(NON-RECOURSE PROVISIONS)
Loan Exception
8151 Blandings Recourse is limited to 20% of debt as
to one of the mortgagors (▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Developers) but
unlimited to its principal (▇▇▇ ▇▇▇▇▇)
and second mortgagor (Jacksonville
TPC) and its principal (▇▇▇▇▇▇
▇▇▇▇▇▇▇).
REPRESENTATION AND WARRANTY NO. 46
(JUNIOR LIENS)
Loan Exception
156 ▇▇▇▇▇▇▇▇ Loan allows for subsequent secured
debt against property
800 Waterfront Property currently encumbered by
subordinate mortgage
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent of
the lessor thereunder is required, it has been obtained prior to the
Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed in
lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent
is required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or terminated
without the prior written consent of the mortgagee and that any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if an event
of default occurs under the Ground Lease and notice is provided to the
mortgagee and such default is curable by the mortgagee as provided in
the Ground Lease, but remains uncured beyond the applicable cure
period.
4. To the actual knowledge of the Seller, at the Closing Date, such Ground
Lease is in full force and effect and other than payments due but not
yet 30 days or more delinquent, (1) there is no material default, and
(2) there is no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.
5. The ground lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee
to the mortgagee. The ground lease or ancillary agreement further
provides that no notice given is effective against the mortgagee unless
a copy has been given to the mortgagee in a manner described in the
ground lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however,
to only the Title Exceptions or (b) is subject to a subordination,
non-disturbance and attornment agreement to which the mortgagee on the
lessor's fee interest in the Mortgaged Property is subject.
7. A mortgagee is permitted a reasonable opportunity to cure any curable
default under such Ground Lease before the lessor thereunder may
terminate such Ground Lease.
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of
which can be exercised by the mortgagee if the mortgagee acquires the
lessee's rights under the Ground Lease) that extends not less than 20
years beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent letter
received by the mortgagee from the lessor, 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 the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as
repair or restoration progresses, or to the payment or defeasance of
the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation
would not be viewed as commercially unreasonable by any institutional
investor, taking into account the relative duration of the ground lease
and the related Mortgage and the ratio of the market value of the
related Mortgaged Property to the outstanding principal balance of such
Mortgage Loan).
10. The ground lease does not impose any restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial
lender.
11. The ground lessor under such Ground Lease is required to enter into a
new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
EXHIBIT A
MORTGAGE LOAN SCHEDULE
MORTGAGE
LOAN
NUMBER PROPERTY NAME STREET ADDRESS CITY
------ ------------- -------------- ----
3 One Franklin ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
5 ▇▇▇▇▇▇▇▇ Manor Mall Sunrise Highway & Manor Lane Islip
7 Wynnton Multi Portfolio Various Various
7.1 Granada Apartments ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
7.2 Grandview Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Largo
7.3 Palmview Apartments ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇
7.4 Plantation Apartments ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Temple Terrace
8 Stadium Crossing Katella and State College Blvd Anaheim
9 Alexandria RE Portfolio Various Gaithersburg
9.1 ▇▇▇▇▇▇▇ 25, 35 & ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
9.2 Quince ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ Drive Kaneohe
15 U-Haul Various Various
15.01 I-30 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
15.02 Ivar Avenue 3527 Ivar Avenue Rosemead
15.03 East Alosta ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
15.04 Black Rock ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
15.05 ▇▇▇▇▇▇▇ St. ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
15.06 ▇▇▇▇▇▇▇▇▇ Clementon ▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
15.07 Business Ave. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Clay
15.08 West Hwy 287 ByPass ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Waxahachie
15.09 ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
15.1 South ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Ft. Worth
18 U-Haul II Various Various
18.01 Rio Salado ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Tempe
18.02 Sycamore Avenue ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
18.03 White Lane ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
18.04 Newfield Street ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
18.05 Southside ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇
18.06 Connecticut Drive ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
18.07 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
18.08 Rufe Snow ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
18.09 ▇▇▇▇ Drive ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Plano
18.1 Westchase ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ San Antonio
22 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
23 Polo Club Apartments 916 Beaver Grade Road Moon Township
29 Hilton Head Village ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
31 Harmony Foods Building ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇-▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
37 610 Weddell ▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
39 ▇▇▇▇▇▇ Building ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
49 Regency Pointe Shopping Center ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
51 Granville Plaza Shopping Center ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
56 Saddle Oak Apartments 1014 ▇▇▇▇ Place Joliet
▇▇ ▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
62 Skyline Terrace Apartments ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Monterey
66 The Colonnade Shopping Center ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. Austin
69 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
70 800 Waterfront ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Farmers Branch
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
87 ZION- Buccaneer Court Apts ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Ciy
92 ZION- Homestead Properties 1500 & ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ & ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ Ciy
94 ▇▇▇▇▇▇ ▇▇▇▇ Warehouse 6817/6829 Avenue K Plano
95 Scottsdale Village Center ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ Albuquerque
ORIGINAL REMAINING
TERM TO TERM TO STATED MATURITY
MORTGAGE MONTHLY MATURITY MATURITY MATURITY DATE OR ARD
LOAN ZIP CUT-OFF DATE P&I MORTGAGE OR ARD OR ARD DATE (OR BALLOON
NUMBER STATE CODE BALANCE PAYMENT RATE (MOS.) (MOS.) ARD DATE) BALANCE ($)
------ ----- ---- ------- ------- ---- ------ ------ --------- -----------
▇ ▇▇ ▇▇▇▇▇ 44,000,000.00 305,224.69 6.7940% 121 116 31-Jan-11 38,274,134.50
5 ▇▇ ▇▇▇▇▇ 32,750,000.00 235,077.80 7.7700% 120 120 1-Jun-11 29,125,395.93
7 Various Various 28,549,985.14 211,149.30 8.0500% 84 79 1-Jan-08 26,799,551.80
7.1 FL 33617
7.2 FL 33771
7.3 FL 33712
7.4 ▇▇ ▇▇▇▇▇
▇ ▇▇ ▇▇▇▇▇ 26,402,569.17 207,883.25 8.7000% 120 109 1-Jul-10 24,126,118.67
9 MD Various 24,600,856.10 186,953.83 8.3300% 120 113 1-Nov-10 22,251,770.42
9.1 MD 20877
9.2 MD 20878
13 HI 96744 20,892,754.94 162,081.41 8.0000% 120 115 1-Jan-11 17,300,794.79
15 Various Various 18,443,578.47 141,440.74 7.8750% 120 116 1-Feb-11 15,202,800.76
15.01 ▇▇ ▇▇▇▇▇
15.02 ▇▇ ▇▇▇▇▇
15.03 ▇▇ ▇▇▇▇▇
15.04 CT 06605
15.05 MA 01952
15.06 ▇▇ ▇▇▇▇▇
15.07 ▇▇ ▇▇▇▇▇
15.08 TX 75165
15.09 ▇▇ ▇▇▇▇▇
15.1 TX 76133
18 Various Various 17,038,704.31 130,666.99 7.8750% 120 116 1-Feb-11 14,044,781.93
18.01 AZ 85281
18.02 ▇▇ ▇▇▇▇▇
18.03 ▇▇ ▇▇▇▇▇
18.04 CT 06457
18.05 MO 63110
18.06 ▇▇ ▇▇▇▇▇
18.07 ▇▇ ▇▇▇▇▇
18.08 TX 76180
18.09 ▇▇ ▇▇▇▇▇
18.1 TX 78240
▇▇ ▇▇ ▇▇▇▇▇ 14,814,651.37 118,497.68 8.8700% 120 108 1-Jun-10 13,590,477.51
▇▇ ▇▇ ▇▇▇▇▇ 14,455,417.72 100,197.31 7.3800% ▇▇▇ ▇▇▇ ▇-▇▇▇-▇▇ ▇▇,▇▇▇,▇▇▇.▇▇
▇▇ ▇▇ ▇▇▇▇▇ 11,883,932.76 81,502.09 7.2900% 120 118 1-Apr-11 10,456,802.36
▇▇ ▇▇ ▇▇▇▇▇ 9,748,217.59 76,202.88 8.6500% 120 115 1-Jan-11 8,869,424.57
35 ME 04401 9,427,285.92 64,717.90 7.3000% 120 118 1-Apr-11 8,297,275.54
▇▇ ▇▇ ▇▇▇▇▇ 8,944,383.49 69,777.08 8.5900% 120 108 1-Jun-10 8,158,423.16
▇▇ ▇▇ ▇▇▇▇▇ 7,989,086.73 54,905.78 7.8800% 120 114 1-Dec-10 7,704,251.14
▇▇ ▇▇ ▇▇▇▇▇ 5,992,079.10 41,460.96 7.3800% 120 118 1-Apr-11 5,284,492.25
50 ▇▇ ▇▇▇▇▇ 5,864,892.37 45,205.54 8.4800% 120 112 1-Oct-10 5,325,483.83
▇▇ ▇▇ ▇▇▇▇▇ 5,676,014.28 43,949.32 8.5300% 120 112 1-Oct-10 5,159,512.72
▇▇ ▇▇ ▇▇▇▇▇ 5,234,236.72 36,708.76 7.5000% 120 116 1-Feb-11 4,635,440.95
▇▇ ▇▇ ▇▇▇▇▇ 4,980,816.51 33,736.56 7.1400% 120 115 1-Jan-11 4,375,052.99
▇▇ ▇▇ ▇▇▇▇▇ 4,932,902.32 35,035.79 7.6250% ▇▇▇ ▇▇▇ ▇-▇▇▇-▇▇ ▇,▇▇▇,▇▇▇.▇▇
▇▇ ▇▇ ▇▇▇▇▇ 4,685,061.33 34,486.93 8.0000% 120 115 1-Jan-11 4,201,448.96
▇▇ ▇▇ ▇▇▇▇▇ 4,110,951.53 30,795.34 8.1700% 120 112 1-Oct-10 3,707,630.61
▇▇ ▇▇ ▇▇▇▇▇ 4,061,755.12 29,617.32 7.9000% ▇▇▇ ▇▇▇ ▇-▇▇▇-▇▇ ▇,▇▇▇,▇▇▇.▇▇
▇▇ ▇▇ ▇▇▇▇▇ 3,240,241.78 22,724.47 7.5000% 120 116 1-Feb-11 2,869,558.77
▇▇ ▇▇ ▇▇▇▇▇ 2,842,254.83 20,912.29 8.0000% ▇▇▇ ▇▇▇ ▇-▇▇▇-▇▇ ▇,▇▇▇,▇▇▇.▇▇
▇▇ ▇▇ ▇▇▇▇▇ 2,153,134.58 15,849.31 8.0000% ▇▇▇ ▇▇▇ ▇-▇▇▇-▇▇ ▇,▇▇▇,▇▇▇.▇▇
▇▇ ▇▇ ▇▇▇▇▇ 1,968,722.57 14,491.85 8.0000% ▇▇▇ ▇▇▇ ▇-▇▇▇-▇▇ ▇,▇▇▇,▇▇▇.▇▇
▇▇ ▇▇ ▇▇▇▇▇ 1,694,596.63 12,474.00 8.0000% 120 115 1-Jan-11 1,519,672.28
▇▇ ▇▇ ▇▇▇▇▇ 1,693,841.66 13,373.91 8.7500% 120 113 1-Nov-10 1,546,001.11
MORTGAGE ORIGINAL REMAINING GROUND MASTER ARD ANTICIPATED
LOAN AMORTIZATION AMORTIZATION LEASE SERVICING LOAN REPAYMENT
NUMBER PROPERTY NAME TERM TERM (Y/N) FEE RATE (Y/N) DATE
------ ------------- ---- ---- ----- -------- ----- ----
3 One Franklin 300 300 Y 0.0250% Y 31-Jan-11
5 ▇▇▇▇▇▇▇▇ Manor Mall 360 360 Y 0.0250% Y 1-Jun-11
7 Wynnton Multi Portfolio 360 355 N 0.0250% N NA
7.1 Granada Apartments N 0.0250%
7.2 Grandview Apartments N 0.0250%
7.3 Palmview Apartments N 0.0250%
7.4 Plantation Apartments N 0.0250%
8 Stadium Crossing 360 349 N 0.0250% Y 1-Jul-10
9 Alexandria RE Portfolio 360 353 N 0.0250% Y 1-Nov-10
9.1 ▇▇▇▇▇▇▇ N 0.0250%
9.2 Quince N 0.0250%
13 Windward City Shopping Center 300 295 Y 0.0250% N NA
15 U-Haul 300 296 N 0.0250% Y 1-Feb-11
15.01 I-30 N 0.0250%
15.02 Ivar Avenue N 0.0250%
15.03 East Alosta N 0.0250%
15.04 Black Rock N 0.0250%
15.05 ▇▇▇▇▇▇▇ St. N 0.0250%
15.06 ▇▇▇▇▇▇▇▇▇ Clementon N 0.0250%
15.07 Business Ave. N 0.0250%
15.08 ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇ 0.0250%
15.09 ▇▇▇▇▇▇▇ ▇▇. N 0.0250%
15.1 South ▇▇▇▇▇ N 0.0250%
18 U-Haul II 300 296 N 0.0250% Y 1-Feb-11
18.01 Rio Salado N 0.0250%
18.02 Sycamore Avenue N 0.0250%
18.03 ▇▇▇▇▇ ▇▇▇▇ ▇ ▇.▇▇▇▇%
▇▇.▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ 0.0250%
18.05 Southside N 0.0250%
18.06 Connecticut Drive N 0.0250%
18.07 ▇▇▇▇▇▇▇▇ Avenue N 0.0250%
18.08 Rufe Snow N 0.0250%
18.09 ▇▇▇▇ Drive N 0.0250%
18.1 Westchase N 0.0250%
22 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 360 348 N 0.0250% N NA
23 Polo Club Apartments 360 ▇▇▇ ▇ ▇.▇▇▇▇% ▇ ▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ 360 358 N 0.0250% N NA
31 Harmony Foods Building 360 ▇▇▇ ▇ ▇.▇▇▇▇% ▇ ▇▇
▇▇ ▇▇-▇▇▇▇▇▇▇ ▇▇▇▇ 360 358 N 0.0250% N NA
37 610 Weddell 360 ▇▇▇ ▇ ▇.▇▇▇▇% ▇ ▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 480 474 N 0.0250% N NA
49 Regency Pointe Shopping Center 360 358 N 0.0250% N NA
50 Hilltop Plaza 360 352 N 0.0250% N NA
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 360 352 N 0.0250% N NA
56 Saddle Oak Apartments 360 356 N 0.0250% N NA
60 GG-Green Valley Apartments 360 355 N 0.0250% N NA
62 Skyline Terrace Apartments 360 355 N 0.0250% N NA
66 The Colonnade Shopping Center 360 355 N 0.0250% N NA
69 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. 360 352 N 0.0250% Y 1-Oct-10
70 800 Waterfront 360 ▇▇▇ ▇ ▇.▇▇▇▇% ▇ ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 360 ▇▇▇ ▇ ▇.▇▇▇▇% ▇ ▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ II 360 356 Y 0.0250% N NA
87 ZION- Buccaneer Court Apts 360 355 N 0.0250% N NA
92 ZION- Homestead Properties 360 355 N 0.0250% N NA
94 ▇▇▇▇▇▇ ▇▇▇▇ Warehouse 360 ▇▇▇ ▇ ▇.▇▇▇▇% ▇ ▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Center 360 353 N 0.0250% N NA
CREDIT
MORTGAGE MORTGAGE LEASE
LOAN ADDITIONAL LOAN LOAN
NUMBER INTEREST RATE SELLER (Y/N) CTL TENANT
------ ------------- ------ ----- ----------
3 8.794% MLMLI N
5 9.770% MLMLI N
7 NA MLMCI N
7.1 N
7.2 N
7.3 N
7.4 N
8 10.700% MLMCI N
9 10.330% MLMCI N
9.1 N
9.2 N
13 NA MLMLI N
15 9.875% MLMLI N
15.01 N
15.02 N
15.03 N
15.04 N
15.05 N
15.06 N
15.07 N
15.08 N
15.09 N
15.1 N
18 9.875% MLMLI N
18.01 N
18.02 N
18.03 N
18.04 N
18.05 N
18.06 N
18.07 N
18.08 N
18.09 N
18.1 N
22 NA MLMLI N
23 NA MLMLI N
29 NA MLMLI N
31 NA MLMCI N
35 NA MLMCI N
37 NA MLMCI N
39 NA MLMCI N
49 NA MLMLI N
50 NA MLMCI N
51 NA MLMCI N
56 NA MLMLI N
60 NA MLMLI ▇
▇▇ ▇▇ ▇▇▇▇▇ ▇
▇▇ ▇▇ ▇▇▇▇▇ N
69 10.17% MLMCI N
70 NA MLMLI N
75 NA MLMLI N
81 NA MLMCI N
87 NA MLMLI N
92 NA MLMLI N
94 NA MLMLI N
95 NA MLMCI N
CROSS
MORTGAGE LEASE COLLATERALIZED
LOAN ENHANCEMENT RVI / DEFAULTED DEFEASANCE SECURED
NUMBER PROPERTY NAME CTL GUARANTOR POLICY POLICY FLAG LOAN (Y/N) BY LC
------ ------------- ------------- ------ ------ ---- ---------- -----
3 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Y N
7 Wynnton Multi Portfolio Y N
7.1 Granada Apartments
7.2 Grandview Apartments
7.3 Palmview Apartments
7.4 Plantation Apartments
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇
▇ ▇▇▇▇▇▇▇▇▇▇ RE Portfolio Y N
9.1 ▇▇▇▇▇▇▇
9.2 Quince
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇
▇▇ ▇-▇▇▇▇ Y N
15.01 ▇-▇▇
▇▇.▇▇ ▇▇▇▇ ▇▇▇▇▇▇
15.03 East Alosta
15.04 Black Rock
15.05 ▇▇▇▇▇▇▇ St.
15.06 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇.▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
15.08 West ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
15.09 ▇▇▇▇▇▇▇ ▇▇.
15.1 South ▇▇▇▇▇
18 U-Haul II Y N
18.01 Rio Salado
18.02 Sycamore Avenue
18.03 ▇▇▇▇▇ ▇▇▇▇
▇▇.▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
18.05 Southside
18.06 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇.▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
18.08 Rufe Snow
18.09 ▇▇▇▇ Drive
18.1 Westchase
22 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Y N
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Y N
31 Harmony Foods Building Y N
35 LW-Airport Mall N N
37 610 Weddell Y N
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shopping Center Y N
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Shopping Center Y N
56 Saddle Oak Apartments Y N
60 GG-Green Valley Apartments Y N
62 Skyline Terrace Apartments Y N
66 The Colonnade Shopping Center N N
69 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. Y N
70 800 Waterfront Y N
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ II Y N
87 ZION- Buccaneer Court Apts ZION Y N
92 ZION- Homestead Properties ZION Y N
94 ▇▇▇▇▇▇ ▇▇▇▇ Warehouse Y N
95 Scottsdale Village Center Y N
INTEREST ANNUAL INITIAL DEPOSIT
MORTGAGE RESERVE MONTHLY MONTHLY DEPOSIT TO TO CAPITAL INITIAL
LOAN LOAN TAX INSURANCE REPLACEMENT IMPROVEMENTS TI/LC
NUMBER (Y/N) LOCK BOX ESCROW ESCROW RESERVE RESERVE ESCROW
------ ----- -------- ------ ------ ------- ------- ------
3 Y Hard Y N 212,856.00
5 Y Hard N N 33,264.00
7 Y None Y Y 211,488.00 33,000.00
7.1 None
7.2 None
7.3 None
7.4 None
8 Y Hard- Upfront Y Y 23,640.00 2,145,812.00
9 Y Soft-Springing Y N 37,632.00 56,030.00
9.1 None
9.2 None
13 Y None Y Y 29,532.00 113,750.00 65,000.00
15 Y Springing Y Y 97,020.00 99,526.00
15.01 None
15.02 None
15.03 None
15.04 None
15.05 None
15.06 None
15.07 None
15.08 None
15.09 None
15.1 None
18 Y Springing Y Y 85,692.00 52,855.00
18.01 None
18.02 None
18.03 None
18.04 None
18.05 None
18.06 None
18.07 None
18.08 None
18.09 None
18.1 None
22 Y None Y Y 43,584.00 1,400,000.00
23 Y None Y Y 70,008.00 70,000.00
29 Y None Y N 16,656.00
31 Y Hard-Upfront Y Y 48,456.00 11,250.00 200,000.00
35 Y None Y Y 34,404.00
37 Y Hard- Upfront Y N 10,728.00 100,000.00
▇▇ ▇ ▇▇▇▇ ▇ ▇
▇▇ ▇ ▇▇▇▇ ▇ ▇ 10,092.00 13,031.00 75,893.00
50 Y Hard-Springing Y Y 9,576.00 30,500.00
51 Y None Y Y 6,348.00
56 Y None Y Y 47,004.00
60 Y None Y Y 24,504.00
62 Y None Y Y 9,996.00 5,000.00
66 Y None Y Y 8,604.00 91,188.00 465,000.00
69 Y Hard-Upfront N N 280,000.00
70 Y None Y N 7,068.00
75 Y None Y Y 35,496.00 328,750.00
81 Y None Y Y 4,332.00
87 Y None Y Y 29,000.04
92 Y None Y Y 22,752.00
94 Y None Y Y 4,356.00
95 Y None Y Y 8,412.00 100,000.00
EXHIBIT B
Mortgage Loan Purchase Agreement, dated as of June 10, 2001.
CERTIFICATES:
First Union National Bank Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series ▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇ Certificate
Principal Balance or
Initial Aggregate Percentage Interest
Class Certificate Principal of Class to be
Designation Balance of Class Retained by Seller Purchase Price
Z-II N/A 100% 0
